The ObamaCare tax chimera


Yesterday saw the beginning of oral arguments before the Supreme Court in the ObamaCare case.  The focus was on whether or not the individual mandate imposes a “penalty” or “tax” on citizens for failure to comply with the health-care boondoggle they hate so very, very much.

This is a crucial question, because Congress does have the Constitutional authority to levy taxes, while fining citizens for their failure to purchase a product is dubious, in a way that would have inspired the Founding Fathers to reach for their gunpowder and shot. 

If the individual mandate imposed a tax, it would clear an important Constitutional hurdle.  Unfortunately for ObamaCare’s shrinking band of defenders, the President and his allies used to be extremely clear that the individual mandate is not a tax, back when they were pushing their horrid legislation through Congress.  They suddenly changed their tune when the Supreme Court began tapping its feet, but once upon a time, there was no ambiguity in their position at all.

Here, for example, is President Obama discussing the matter with George Stephanopolous of ABC News in 2009:

Obama claims to be baffled by the very notion that his health-care plan imposes any taxes, after Stephanopolous notes this would violate his campaign promise to avoid raising taxes on the middle class.  He aggressively mocks the classification of the individual mandate as a “tax” by his bitter partisan opponents, who claim everything he does is a tax increase.  He claims that if ObamaCare is a tax, then so are increases in private sector insurance premiums – or, for that matter, the premiums motorists are obliged to pay for auto insurance.  He laughs out loud when Stephanopolous reads the dictionary definition of a tax to him.  The intensity of his argument goes beyond indisputable and becomes comical.  He stops just short of writing “tax increase” on a piece of paper, setting it on fire, and dancing on the ashes.

Note that everything else Obama says about his “signature achievement” in this clip proved to be completely incorrect.  He claims it wouldn’t increase the deficit, and it would bring health care costs down, but the opposite of those promises turned out to be the truth.

For additional nostalgic comedy value, note the little salute he gives to Republican In Name Only Olympia Snowe, who did indeed prove quite helpful when it came to getting ObamaCare out of committee.  Just today, Snowe – who is retiring after her current term, because she says she can’t stand the partisanship of Congress – gave Obama “close to a failing grade” at working with Republicans, and said Obama has not spoken to her in two years.

The ObamaCare legislation itself is quite explicit that the individual mandate does not impose a tax.  It is referred to as a “penalty” nearly 200 times, however.  This didn’t stop the current Solicitor General, Donald Verrilli Jr., from arguing that it sorta kinda is a tax, because it’s collected like one.  Walks like a duck, talks like a duck, et cetera.

Thus, we have arrived at the bizarre moment when the Constitutional defense of ObamaCare relies entirely on the assertion that Barack Obama is a bald-faced, contemptuous liar, who mocked his opponents for making charges that he knew were entirely accurate during the passage of the bill.  Now that it would be fatal to continue this pretense, the Administration will drop it, and pivot neatly to a passionate legal argument that every ObamaCare critic in 2009 was one hundred percent correct when they stated ObamaCare would sock the middle class with huge new taxes, while those who took Obama seriously were fools.

Beneath this deeply offensive P.R. strategy lies a more troubling assertion of power, which would shatter the final restraints against the federal government.  The Solicitor General is arguing, quite literally, that the Administration can have it both ways – the individual mandate is both a tax and a penalty, depending entirely on legal need.  It has the full DNA of both a tax and a penalty, revealing whichever is more pleasing to whatever eye happens to be pressed against the legal microscope at any given moment.

The legal restraints placed upon government action are expressions of individual liberty.  If we accept the precedent, formally ratified by the Supreme Court, that Mother Government can disregard nitpicky little laws in its righteous quest to bury the populace under nitpicky little laws, we have abandoned the concept of restraint – and, by extension, inalienable liberty.  The only limit upon the State will be the intensity of its passions, and how keenly it can make a politically useful segment of the population share those passions.

It doesn’t sound like the Supreme Court is going to accept this nonsense, because even the liberal justices expressed deep skepticism, as reported by the Washington Examiner:

“This is not a revenue-raising measure, because, if it’s successful, they won’t — nobody will pay the penalty and there will be no revenue to raise,” said Justice Ruth Bader Ginsburg of the mandate.

Another liberal on the court, Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”

They certainly did, Justice Breyer.  And that reason should unite every American in outrage… from those who were duped by this Administration, to those whose highly accurate criticisms were trampled in the rush to midnight passage of the unread legislation.