[Editor’s note: This post should not be construed as an endorsement of Mitt Romney or of Republican candidates for U.S. Senate or U.S. House in 2012. The author is a political media strategist by trade.]
Regular readers know I am not a lawyer, and that I do not specialize in health policy. I also did not come to Washington through Capitol Hill and am therefore no expert in parliamentary procedure. Still, I wanted to share a few thoughts on the Supreme Court’s decision to uphold Obamacare — some original, some not — and they’re not all bad.
First, here’s the opinion itself (PDF).
Second, the greatest legal minds on the left have spent the last couple of years arguing that the individual mandate is constitutional under authority granted to Congress under the Commerce Clause and Necessary and Proper Clause. The Court summarily rejected this argument, and that is great for individual liberty. Congress does not, as Obamacare opponents have argued all along, have the power to force you to buy health insurance, broccoli, or anything else. It does not have power to regulate economic inactivity.
Third, the mandate was upheld because Chief Justice Roberts wrote that the penalty for not purchasing health insurance can reasonably be construed as a tax. Because the power to tax is an enumerated power of Congress as outlined in Article 1, Section 8 of the Constitution, this provision of the law was upheld.
An interesting political point — in September 2009, fearing political blowback from pushing so hard for the law, the president flatly rejected that Obamacare constituted a tax increase on Americans during a recession:
SCOTUSblog reports that the Supreme Court has upheld the individual mandate and the rest of Patient Protection and Affordable Care Act, though the “federal government’s power to terminate states’ Medicaid funds is narrowly read.” Writing for the majority, Chief Justice John Roberts explains that the individual mandate is a tax.
The decision is certainly interesting because Solicitor General Donald Verrilli argued that the individual mandate wasn’t a tax back in March. And that was an argument with which members seemed to agree.
Stay tuned for a link to the opinion and further updates.
[10:22am] SCOTUSblog notes that Roberts’ vote, not Kennedy’s, saved ObamaCare. It was 5 to 4 decision.
[10:24am] Based on what we know right now, the implication is that the Commerce Clause was not expanded as a result of the decision. But we can’t say for sure until we see the opinion of the court.
[10:26am] Remember when President Obama said the mandate wasn’t a tax.
[10:27am] The Commerce Clause is untouched by the opinion. The majority only ruled the mandate constitutional as a tax, via SCOTUSblog: “Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn’t. Her opinion on Commerce does not control.”
[10:49am] And here is the opinion.
Welcome, Instapundit readers!
The folks over at Learn Liberty bring a new lesson from George Mason University economist Donald J. Boudreaux (who blogs at Cafe Hayek) on free trade and protectionism as matters of policy, and their impacts on wealth creation:
Protectionism today comes in the form of Buy American restrictions (which were reinforced in the so-called stimulus bill), whose proponents argue that forcing manufacturers to produce goods using inputs created by American firms, or that the government buy/contract goods and services solely from American firms through its procurement process, will help preserve and create jobs at home.
As we’ve noted since the Supreme Court’s decision in the ObamaCare, the White House has refused to acknowledge that the individual mandate is a tax. They’ve called it a penalty, but admitting its a tax gets into another area of politics where Team Obama hadn’t wanted to go.
But while campaigning in Virginia this weekend, President Obama called the individual mandate a “tax,” indicating that they may finally be acknowleding the decision:
President Obama used the word “tax” to describe the health care mandate under his reforms, a departure from his prior etymological stance that it is a penalty.
“By the way, if you’ve got health insurance, you’re not getting hit by a tax,” the president said during his Friday rally in Roanoke, his third Virginia campaign event of the day. “The only thing that’s happening to you is that you now have more security because insurance companies can’t drop you when you get sick.”
And let’s keep in mind that the entire post-decision rhetoric was a ruse. The Obama Administration argued that the individual mandate was tax before the Supreme Court. For them, it’s only a tax when it’s convenient.
The White House has insisted that the individual mandate, the requirement on all Americans to purchase health insurance, is not a tax; even after the Supreme Court decision. President Barack Obama insisted on this point in a 2009 interview with George Stephanopoulos during the debate over the law. But within months after passage, the administration began arguing that the mandate was valid, not only through the Commerce and Necessary and Proper Clauses, but also through the Taxing Power of Congress.
While the furor over the Supreme Court’s decision in the ObamaCare case has somewhat died down over the last week — though there is little doubt that it’s still there, a new poll from Quinnipiac shows that Americans disagree with the White House over whether or not the individual mandate is a tax:
The Affordable Care Act (ACA) is a tax hike, American voters say 55 - 36 percent, but in a mixed message, voters agree 48 - 45 percent with the U.S. Supreme Court decision upholding the law, while they say 49 - 43 percent that the U.S. Congress should repeal it, according to a Quinnipiac University national poll released [Thursday].
The reason the Obama and company doesn’t want own up the tax angle is because this is a tax hike that would hit lower and middle class Americans the hardest. Raising taxes on the evil and hated rich is, apparently, one thing. But a politician admitting that he’s supported a tax hike on the middle class is unpopular.
Since the Supreme Court’s ruling on ObamaCare, Mitt Romney’s campaign has engaged in mixed messaging as they struggle to find out what exactly the believe or, at the very least, what they think Americans want to hear. The editoral board at the Wall Street Journal isn’t pleased and is pushing Team Romney to get its act together:
Appearing on MSNBC, close Romney adviser Eric Fehrnstrom was asked by host Chuck Todd if Mr. Romney “agrees with the president” and “believes that you shouldn’t call the tax penalty a tax, you should call it a penalty or a fee or a fine?”
“That’s correct,” Mr. Fehrnstrom replied, before attempting some hapless spin suggesting that Mr. Obama must be “held accountable” for his own “contradictory” statements on whether it is a penalty or tax. Predictably, the Obama campaign and the media blew past Mr. Fehrnstrom’s point, jumped on the tax-policy concession, and declared the health-care tax debate closed.
For conservative optimists who think Mr. Fehrnstrom misspoke or is merely dense, his tax absolution gift to Mr. Obama was confirmed by campaign spokeswoman Andrea Saul, who tried the same lame jujitsu spin. In any event, Mr. Fehrnstrom is part of the Boston coterie who are closest to Mr. Romney, and he wouldn’t say such a thing without the candidate’s approval.
During his daily briefing yesterday, White House Press Secretary Jay Carney took issue with the Supreme Court for upholding the individual mandate, a central part of ObamaCare, as a “tax” passed under the Taxing Power of Congress:
President Obama’s spokesman denied that the Supreme Court ruled that the individual mandate is a tax, as he combated the idea that the president has raised taxes on the middle class.
“[I]t is simply a fallacy to say that this is a broad-based tax,” White House Press Secretary Jay Carney said today. “That’s not what the opinion stated that was authored by the Chief Justice. The Affordable Care Act is constitutional under Congress’s taxing authority, but this is clearly a penalty that affects less than one percent of the American population.”
Carney added, “Look, it’s a penalty,” when reporters pressed him about the court’s ruling.
No, it’s a tax. And not just a tax because the Supreme Court says so, it’s so because the Obama Administration argued that it was a tax. That right-wing rag, The New York Times reported in July 2010, nearly four months after ObamaCare was passed, that the the administration was shifting its legal strategy in the case, now arguing that the individual mandate was a tax. And indeed, on page 56 of the Obama Administration’s brief in the case, Solicitor General Donald Verrilli argued (emphasis mine):
Thanks to the Supreme Court decision on ObamaCare, Republicans have been given a talking point — that the individual mandate is a tax — with which to knock President Barack Obama. Americans have an aversion to taxes and there is little doubt that the talking point will favor the GOP in the fall. In fact, a new CNN poll shows that Americans are indeed viewing the individual mandate as a tax.
But Mitt Romney may have pulled the rug out from underneath his party. The Hill notes that Romney’s campaign is quickly backing away from the claim, and agreeing with Obama’s talking point that the individual mandate is not a tax:
Mitt Romney’s presidential campaign broke with congressional Republicans on Monday by arguing that the individual mandate upheld by the Supreme Court last week is a penalty, not a tax.
The majority in the court’s decision ruled it constitutional because it was a tax, and Republicans in Congress since that decision have hit the White House hard for raising taxes through the new law.
But a spokesman for Romney on Monday said the former Massachusetts governor agrees with Obama that the individual mandate is a penalty or a fine, rather than a tax.
In a roundabout exchange on MSNBC’s “Daily Rundown” on Monday, Eric Fehrnstrom was asked if he agrees with Obama that the individual mandate is not a tax.
“That’s correct,” Fehrnstrom said. “But the president also needs to be held accountable for his contradictory statements. He has described it variously as a penalty and as a tax. He needs to reconcile those two very different statements.”
If you’re upset over the Supreme Court ruling on ObamaCare, maybe you should be. The Court’s ruling that it’s a tax has left many people frustrated with the system in general. This frustrated, annoyed, outraged feeling where you just want to find a legislator to beat senseless is exactly how you should feel. (You shouldn’t beat legislators senseless, but this is how you should feel about taxation.)
We’re now being taxed for inaction. It’s a tax for doing nothing. Whether we’re sick or well, whether we want insurance or not, we have to spend that money.
While the thought of being taxed for inaction is certainly outrageous, why aren’t we this outraged at taxes based on action? When we earn money, it’s taxed. When we spend money, it’s taxed. When we inherit money, it’s taxed.
Many people will tell you that taxation based on an action is preferable because you can choose how much you pay in taxes. Though that’s true, at least to an extent, conservatives have supported the FairTax approach to consumption taxes that they don’t bother thinking that maybe the tax is too high; all they see is the method of taxation.
We’ve adopted this mentality that government has some right to a percentage of what we earn, what we spend, and what we are given. Of course, the government needs money to operate, and that has to be done through taxation of some sort. I understand that the government needs to be funded. That’s not the point here; the issue is our overall complacency toward taxation.
The ruling from the Supreme Court on the health care issue has reminded us what we’re supposed to feel like on the issue of taxation. Remember this feeling; hold onto that level of rage; and let this example from the health care issue be a constant reminder of the way government influences our decisions.
David Harsanyi, a columnist with the Denver Post, argues against a bailout for newspapers, an idea that seems to be coming up more frequently these days:
You know what journalism could really use more of? Government participation. Who better, after all, than a gaggle of technocrats and political appointees to guide the industry in matters of entrepreneurship, fairness and coverage?
Thankfully, the good folks at the Federal Trade Commission are all over it, cobbling together a report aimed at saving newspapers called “Potential Policy Recommendation to Support the Reinvention of Journalism.” It’s only the first step in a long-term plan to rescue the Fourth Estate from itself.
The majority of the FTC draft focuses on ways to bail out the newspaper business, which isn’t exactly the same as “saving” journalism. I love newspapers. I make my living at a newspaper (for now). But journalism doesn’t need salvaging. Newspapers — as in, news on paper — are struggling, for now. But consumers (scrupulously ignored in the FTC report) have an array of news outlets to choose from, and most often, the coverage offered them is far more thorough than what we’ve had in the past.
How we disseminate information is being reinvented — it is always being reinvented — and one day soon a breakthrough will allow newspapers to be more fairly compensated for the content they produce. But propping up antiquated models is no way to save any industry.
Let me put it another way. In 1985, the FTC did not set forth recommendations on how to “reinvent music” and propose a 5 percent tax on compact discs as a way to subsidize companies that produced vinyl records. That kind of intervention would have hindered technology rather than driven it.