June 28, 2012

SCOTUS – It Ain’t An “Individual Mandate”, It’s A Tax Increase On The American People

I’ll be honest, I’m not happy with the Supreme Court’s decision on ObamaCare, and I’m shocked that Chief Justice Roberts voted to uphold that execrable piece of legislation. I find the reasoning weak – but can’t help but note that the official declaration of the Supreme Court of the United States is that the legislation is a tax on Americans at every income level.

Chief Justice John Roberts wrote the majority opinion for the court in the 5-4 decision on the mandate, ruling that Congress has the authority to enforce the healthcare law’s individual mandate, which will require most U.S. taxpayers to buy insurance or pay a penalty.

Roberts said the mandate could survive as a tax.

"Nothing in the Constitution guarantees that individuals may avoid taxation by inactivity," Roberts said from the bench.

Now think about this. Barack Obama ran in 2008 saying that he would not increase taxes on any Americans except for the very wealthy (which, I’ll grant you, kept being defined down until it included two-income upper middle class families). After the ruling today, We Republicans can point out that not only is Obama the biggest deficit spender in the history of America, but he is also the biggest tax raiser, too. And in the debate on extending the “Bush tax cuts” – which cut the taxes of every single American who paid taxes – we can point that this is simply ANOTHER Obama tax increase to go along with the incredibly unpopular ObamaCare tax.

I won’t join the folks making nonsensical calls to impeach John Roberts (or any other justice) over this decision. We don’t impeach justices over decisions we believe to be wrong in this country – we did not do so over much more egregious decisions like those in the Dred Scott case, US v. Cruikshank, Plessy v. Ferguson, Roe v. Wade or any of a dozen others I could name. Instead, I want to echo Erick Erickson of RedState on what the Chief Justice has done here.

[I]n writing his case, Roberts forces everyone to deal with the issue as a political, not a legal issue. In the past twenty years, Republicans have punted a number of issues to the Supreme Court asking the Court to save us from ourselves. They can’t do that with Roberts. They tried with McCain-Feingold, which was originally upheld. This case is a timely reminder to the GOP that five votes are not a sure thing.

Third, while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was, Roberts has curtailed the commerce clause as an avenue for Congressional overreach. In so doing, he has affirmed the Democrats are massive taxers. In fact, I would argue that this may prevent future mandates in that no one is going to go around campaigning on new massive tax increases. On the upside, I guess we can tax the hell out of abortion now. Likewise, in a 7 to 2 decision, the Court shows a strong majority still recognize the concept of federalism and the restrains of Congress in forcing states to adhere to the whims of the federal government.

Fourth, in forcing us to deal with this politically, the Democrats are going to have a hard time running to November claiming the American people need to vote for them to preserve Obamacare. It remains deeply, deeply unpopular with the American people. If they want to make a vote for them a vote for keeping a massive tax increase, let them try.

Erickson has it exactly right. We need to win this battle in the political arena, not the judicial one. While I firmly believe that the Chief Justice is wrong on this one (the fact that Congress refused to call the “penalty” a “tax” and the president denied that it is a tax is prima facie evidence it was not intended to be a tax and subsequent efforts to define it as such by the Obama Administration were just post hoc rationalizations – something Justice Kennedy noted in dissent), it is better that elected officials, not judges, set public policy for us. The trend to have unelected judges set binding policy – and rescue policymakers from their own inability to make hard choices or abide by the Constitution – has been destructive for decades. If this leads to a reversal of the trend, we owe Roberts a debt of gratitude.

And just as importantly, this decision gives Republicans an opportunity and Democrats a headache in the fall.

In order to defend the single major domestic policy “success” of the current administration and the Democrat Party, Obama and congressional Democrats are going to have to run on the platform of “Vote For Us, We Raised Your Taxes!” Given that the American people already dislike ObamaCare, are financially strapped due to the failure of Obama’s policies to stem the Great DemPression (which began after the election of a Democrat majority to Congress in 2006 and which deepened after Obama took office) and are now looking at increased healthcare costs (and/or tax increases) beginning in the next 18 months because of ObamaCare, this decision to let the federal government expand its size and scope exponentially should be sufficient to drive American voters into the arms of the GOP in November. After all, votes for Mitt Romney and the GOP candidates for House and Senate are the only way to keep the worst features of ObamaCare from going into effect.

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