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.
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