Have Obama and the Democrats been too clever by half?
After all, yesterday ObamaCare was upheld by the Supreme Court under the theory that what the bill called a "penalty" is actually a tax -- a position taken by the Obama Administration and others in briefs and oral arguments.
Now that they have gotten a decision their way, some mighty curious statements have come out of Obama Administration officials, campaign surrogates for President Obama and Democrats in Congress. It seems they all want to have it both ways on the tax issue.
A top surrogate for President Obama insisted Friday that the individual mandate in the Affordable Care Act was not a tax — despite the fact that the Supreme Court narrowly preserved the law on those grounds.
“Don’t believe the hype that the other side is selling,” Massachusetts Gov. Deval Patrick told reporters on a conference call.
“This is a penalty,” Patrick said. “It’s about dealing with the freeloaders.”
“It’s a penalty, because you have a choice. You don’t have a choice to pay your taxes, right?” [Jay] Carney told reporters aboard Air Force One. …
Roberts wrote that the law “makes going without insurance just another thing the government taxes, like buying gasoline or earning an income.” …
“You can call it what you want,” Carney said, underlining Congressional Budget Office estimates that whatever you call it will affect only 1 percent of Americans. “It is not a broad-based tax.” “One percent of the population. One percent. You can call it what you want, but it is affecting 1 percent of the population. Because most people either have health insurance or people do the responsible thing and if they can afford health insurance they will purchase it,” the spokesman said.
A number of Congressional Democrats have continued to make the same "penalty, not a tax" argument in the wake of the decision as well.
Of course, that means that there has been a fraud committed upon the American people, and upon the Supreme Court. After all, the above comments make it clear that the Obama Administration lied to the Supreme Court in both the briefs filed and the oral arguments made.
We the People cannot do anything about that issue until November -- but those who brought the lawsuits against ObamaCare have 24 more days to do something about it. They can act under Rule 44 of the Rules of the Supreme Court. Here's the relevant part of that rule.
Rule 44. Rehearing
1. Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.
Rehearing requires an absolute majority of the court to agree to hear the case again. What's more, it requires one of those in the majority to agree to hear the case again.
Somebody like Chief Justice John Roberts, author of the controlling opinion in the case just decided. You know, the guy who accepted the Obama Administration argument that the penalty associated with the mandate was a tax and not a penalty -- a position now being rejected by those who presented the argument in the first place. If a petition for rehearing is submitted, he has a chance for a "do-over" -- and the option of pointing to the post-decision reversal by the Obama Administration as supporting the opposite conclusion from the one he initially made.
The dissent signed by Kennedy, Scalia, Thomas and Alito would then serve as the template for the new majority opinion. A concurrence by the Chief Justice would clarify that it was the rejection of the winning argument in the case that necessitated the rehearing and reversal. Far from being an act of political hubris, the striking down of ObamaCare would constitute an upholding of the dignity and objectivity of the Supreme Court. After all, if the party that claimed there was a tax has immediately declared that there is not tax, the integrity of the Court and the interest of justice requires that the decision based upon a fraudulent argument be reversed.
How likely is it that a petition for rehearing will be granted in this case? Not very likely -- there has not been such a rehearing in a case taken under appellate jurisdiction since 1969. The particular situation at hand in this case, however, could be one that requires (dare I say "mandates") reconsideration -- and reversal.
UPDATE: Interesting commentary and observations here -- be sure to read the comments, too.
UPDATE 2: This new post by me provides more evidence of why Rule 44 must be invoked.