It’s A Tax, Stupid!

W’s Mistake


Back in March, I predicted in this space that the Supreme Court would find some way to uphold Obamacare and that Chief Justice John Roberts would be Obama’s enabler. Here is what I wrote on March 30th:

Anyone who listened to the Supreme Court hearings on Obamacare knows that the opponents of the law won the argument. Still, if I had to bet, I would put my money on the court declaring the law constitutional, perhaps with an explanation.

The Supreme I would worry about most is Chief Justice Roberts. According to most reports, Roberts is very sensitive about the court’s image, especially after the 2000 election debacle when the court had to bring the chaos to an end, a decision that, in effect, made Bush the winner. It is also reported that Roberts likes to avoid 5 to 4 decisions when it comes to major controversial issues, if possible.

Roberts also knows that Obama, the Democrats and their media will make the “right-wing, unempathetic” Supreme Court a major whip-up-the-base issue in the coming war, er, campaign. And if Anthony ” The Weather-Vane” Kennedy agrees to make it 6 to 3, all the better.

If Roberts votes with the majority for the law’s constitutionality, he, as I understand it, will get to write the majority opinion where he can deal with the “Is there any limit on Congress’s power?” issue by employing the allegedly “unique” nature of medical insurance argument. In that way, Roberts, Kennedy and the 4 Democrats can claim that there is some at least theoretical limit to federal power under the Commerce Clause which has yet to be discovered. It’s there all right; we just can’t see, hear, feel, smell or taste it right now. But someday…

Of course, this whole mess could have been avoided if the Democrats had done what a Washington Post editorial suggests in today’s edition:

[Congress] could have enacted a broadly based tax to pay for the health care it wants to subsidize.

It didn’t…for a couple of reasons. One was that reform advocates didn’t seriously entertain the constitutional vulnerability of the mandate. But the bigger reason is a more familiar one in Washington these days: None of the politicians wanted to acknowledge the costs.

The pols love to bash insurance companies that exclude anyone with preexisting conditions. They demand that the companies charge less for old people than the actuarial tables would dictate. They want to give insurance to poor people who can’t afford it. But they, like their voters, don’t want to pay for the subsidies implied by any of those rules. When President Obama was running in 2008, he insisted he could deliver universal coverage without a mandate. Once in office, he found that wasn’t true. But he still didn’t want to use the word “tax,” and neither did anyone in Congress…

So I was right about Roberts, but did not realize that he could rewrite the law by simply renaming what the law specifically calls a “mandate” a tax.

So what we now know about the “brilliant” Bush-appointed Roberts is that he can be mau-maued as Obama so tastelessly did to the Court during his 2010 State of the Union address. Add that to the apparent success of Obama’s personal attacks on Romney’s business career (according to recent polls) and his shameless pandering to Hispanics, and you can conclude that what columnist John Kass calls the “Chicago Way” is a winner.

Of course, we should not discount the role race played in Roberts’ thinking. I doubt he relished the idea of being the First Chief Justice to overturn the “Signature Legislation” of the First Black President of the United States, a charge Chris Matthews and the Democratic media stood ready to make if the law had been struck down. Thus he found a semantic hook on which to hang his hat: It’s a tax, not a mandate. No sweat.

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