6.28.2012

A "Tax": Roberts, Obama, and The Lawyers


Regarding today's Obamacare opinion, it appears (at least based upon the talking heads) that the key to the decision was the Court calling the individual mandate, forcing people to buy insurance or pay a penalty, to be a "tax". More specifically, the breakdown is as follows. Four of the justices held the Act to be unconstitutional. Four justices held that the individual mandate was constitutional under Congress's powers under the "Commerce Clause".  At this point, we've got a 4 to 4 tie, and we've got one judge left, Chief Justice Roberts. And he doesn't believe that the individual mandate was valid under the Commerce Clause. Unless he found another reason to find it constitutional, the law was going to be declared dead.

Roberts, however (and to the shock of conservatives everywhere), found the individual mandate to be a "tax" and, since Congress had the power to tax in the  Constitution, the law was constitutional. Thus, Obamacare survived. (For the record, the four other judges who would have upheld the law under the Commerce Clause also went along and said it could be upheld as a tax as well. But everyone is focusing on Roberts.)

Now the right wing is going nuts because President Obama specifically told George Stephanopoulos in 2009 that the individual mandate wasn't a tax.  My initial thought: What's the big deal? If the President doesn't believe it to be a tax but Justice Roberts does, that doesn't make Obama a liar. (Sorry, Sarah Palin.) From the President's perspective, he won but for the wrong reason.

However, here's where it gets interesting. There is no question that the "Government" in its brief and in oral arguments made the tax argument before the Court. That is, they called it a tax. The opinion today said so: "It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”  I may need some help here because I haven't research this: I'm guessing that the "Government" means the "United States" which would have been represented by the Attorney General.  I guess that is the equivalent of President Obama calling it a tax before the Court. Maybe.  However, the President is actually represented before the Court by the Solicitor General -- a lawyer who expresses the specific opinion of the White House.  If that office urged the Court to call the individual mandate a "tax", the Right Wing might have a point. Heck, they do have a point. (Although they could have made it months ago when the case was argued -- the fact that Justice Roberts agreed really is irrelevant.

So I wonder what the Solicitor General said before the Court? Release the hounds . . . .

Edit: I got curious. Here's the transcript of the Solicitor General's oral argument. He definitely advocated that it was a tax. And now it's kind of funny when I see that Justice Scalia reminded him that the President had said it wasn't a tax.

19 comments:

wordkyle said...

Obama and the Democrat leaders said, when selling Obamacare and the individual mandate to the public, "this is not a tax." That's the point of Obama's comments to Stephanopoulos. Politically they could not have pulled it off by admitting that they were implementing a huge new tax on Americans. After the law was challenged in court, their explanation changed to "it is a tax." They knew that once it was law it would be much harder to undo, regardless of public outcry. It's now officially confirmed as a tax -- another Obamacare deception.

Baylor Too said...

I am so glad that I live in Colorado Springs because I get to watch 24/7 fire coverage instead of anything about Obamacare.

Anonymous said...

Rick Perry says all of his various fees aren't taxes. Net result: the government still forces you to pay more. This is no different, and no matter what it's called we knew it would cost money. Tax, fee, who cares? Money is money, no matter how they got it.

This is just Republicans looking to cry about something. Again. For a party in the majority (including the court that just affirmed Obamacare), they sure act like they don't get their way a lot.

Rage

Anonymous said...

But Republicans in the Texas legislature get to call everything a fee and somehow that's fine.

Anonymous said...

The Republicans nominated the ONLY candidate who cannot credibly attack Obamacare. Unreal.

I can foresee the debates already. Romney attacks Obama for the Affodable Care Act. Obama giggles and responds "Mitt, why the complaining, I stole the idea directly from you. Why the complaining?"

Anonymous said...

Let's see, a politician changing his argument?????? So rare! Impeach the sucker if he is going to that. We can't have politicans changing their minds after the fact. My God, this is Texas!

Anonymous said...

It's in the opinion if you read it, but this is not the first time this has come up. The Supreme Court does not look at what Congress calls a tax or a fee, it looks at what it actually does to the citizen or entity to determine if it is constitutional for congress to take the action or pass the bill.

Anonymous said...

Let's tax beer bellies and couch potatoes to pay for health care. Want a twinkie or a ho-ho or some nachos? Ten bucks, so that we can provide apples for free. You're a 5'10" 170 pound, non smoking, non ninja bike riding 50 year old man that works out and that gets annual physicals including the yucky one? Free health care for you, buddy, you're not costing us much. But, unfortunately we're going to tax and charge you out of you eyeballs to pay for all the others who don't care and cost us a fortune and, wait and see, will somehow be EXEMPT from this tax/must buy insurance plan.

Anonymous said...

I always though John Travolta was a little cocky.....

Anonymous said...

The whole Obamacare dicussion/political process is making me sick!

Anonymous said...

Just another lie perpetuated by this Niagara and approved by the Government which he works for.

LLDQFan said...

The one time Obama could have blamed Bush and been correct. Bush nominated Roberts.

Anonymous said...

Uh, millions that need health care won't have the money to buy the insurance. So, it will be provided for them for free. Free means "you and me" will pay. Note to Obama: since becoming a doctor in the future is a LOUSY profession...we'll need to also FORCE people to become doctors. And nurses.

Anonymous said...

Republicans are whining like 3 year olds over the healthcare decision. Can't wait to see the pee their pants hissy fit they will throw when they lose in November. Get the diapers ready!!
uncle wally

Anonymous said...

We're all doomed.

Anonymous said...

I hope the sum beach does get re-elected. This country will have to be brought to it's knees before any efing lib will ever see the light. We have finally reached the tipping point where 60% of the population are complete fools. I have lived long enough to know that no one in Washington is going to help you other that reducing the weight of your wallet.

Anonymous said...

Who in the heck would want to sell health insurance to a 400 pound, flip flop wearing single mother of 8, 6 of whom are now 13 to 18 and therefore cranking out kids like you wouldn't believe. Oh yeah, the government does. You and me. Do we REALLY think that all of a sudden this mom will start practicing regular checkups and all sorts of healthy living choices? Please...this whole health care thing is predicated on "Americans" actually being able to be responsible for their health. We aren't. It's over, folks. The teeter totter is so overloaded with net losses on our economic system that it's time those remaining on the net contributor side just jump off, cut our losses, and let the 100 million or so lazies and unhealthies just crash the whole economy. Why prolong the decline? Just hit bottom and try from there.

Anonymous said...

Charles Krauthammer writes an editorial in the Washington Post about why Roberts did it! Elections have consequences and it is not going to be easy to overturn a Democratic House, Senate and President's health care legislation. Democrats have been wanting national health care for a hundred years!

In a vote of 7-2, the court struck down Obamacare forcing states to expand their medicaid benefits.

Mandating all Americans who do not have health care through their employer or the unemployed to purchase health care and forcing the states to cover those too poor to purchase health care insurance by adding those to State medicaid is how the Democrats see Obamacare working. If States opt out of expanding medicaid, how will Americans who do not qualify for medicaid and who do not make enough money to buy insurance, pay a "tax" to the government?

The big question is who gets the tax collected? Does it go to the local hospital ER or Urgent Care Center?

Obamacare will not work as Democrats dreamed because the Supreme Court ruled yesterday by upholding states rights! Our founding fathers understood the danger of an overreaching central government.

Elections have consequences. Another term for Obama and we will lose our liberty!

Remote Controller said...

I agree with 5:08, My healthcare costs are going up and it isn't all because of people without insurance. A lot of it is caused by the people with insurance. They are obese, eat nonfood, never exercise and get medications for stress.

I cannot be mad at the government about this. I am more pissed at the overweight, prescription toting, lazy individuals.

Oh and the 11-19% of middle to upper middle class Americans that can afford insurance but make us pay when they get treated.