Thursday, July 5, 2012 at 7:54 AM
In defending the constitutionality of Obamacare before the Supreme Court in March, Solicitor General Donald B. Verrilli Jr. argued that it could be upheld under Congress’s plenary power to regulate interstate commerce (aka the Commerce Clause).
But a clear majority of the justices did not seem persuaded that this clause gives the government the power to mandate that “free riders” on the healthcare system must pay a penalty if they fail to purchase private health insurance (even at government-subsidized rates).
This is why Verrilli was roundly criticized for “fumbling” his oral argument, and why so many legal scholars, most notably CNN’s Jeffrey Toobin, were convinced that the Court would rule Obamacare unconstitutional. But they overlooked the fallback argument Verrilli made about the government having the power to enforce the individual mandate under its taxing powers. And, as it turned out, this is the argument upon which the Court based its decision to uphold the constitutionality of Obamacare.
Except that we are now being treated to the spectacle of Republicans, on the one hand, insisting that not just the mandate but all of Obamacare constitutes the biggest tax in U.S. history; and Democrats, on the other hand, insisting that, notwithstanding the Court’s ruling, the mandate is a penalty/fee, not a tax. Perversely, politicians these days are more afraid of being accused of raising taxes than priests are of being accused of molesting little boys.
So, as one of only a handful of people who declared, on the record (before and after oral arguments),that the Court would rule Obamacare constitutional, here is how I suggest Democrats explain, for purely political reasons, that the mandate is a penalty/fee, not a tax:
The Court upheld the law under the government’s taxing powers primarily because the IRS is the government agency charged with enforcing the mandate. But whenever we fail to pay our taxes on time, the government also mandates that we pay a late penalty/fee. And of course the IRS is charged with enforcing this mandate.
Yet not even the most rabid anti-Obamacare Republican would argue that this late penalty/fee is a tax: it is a penalty the government mandates and enforces under its taxing powers. By the same token, it follows that just because the IRS is charged with enforcing the penalty/fee for failing to purchase health insurance does not make it a tax: it too is simply a penalty the government mandates and enforces under its taxing powers.
Then, as a more holistic explanation, supporters of Obamacare should point out that for the same reason nobody wants anyone driving on our highways without car insurance, nobody should want anyone using our healthcare system without health insurance: because in both cases the uninsured become free riders who force the rest of us to pay for them.
Incidentally, if we did not have twittering fools masquerading as political correspondents these days one of them might ask Romney if he thinks former President Franklin Delano Roosevelt was also a ”West European socialist who had no clue about what makes America work.” After all, FDR created Social Security, the Tennessee Valley Authority, the FDIC, and so many other features of the modern ”welfare state” that he makes Obama – with his relatively modest attempts to rebuild the country’s crumbling infrastructure and reform healthcare – seem like a closet conservative.
In any case, it’s just another demonstration of the superficial nature of most political debates in America today that every expert agrees less than one percent of the population will ever be affected by this mandate (namely, those who can afford health insurance but refuse to purchase it). And yet all of Obamacare, which will make healthcare accessible to over 40 million poor and uninsured Americans, hinged on this silly semantic quibbling over whether we call the mandate a penalty/fee or a tax? Forget national health insurance, what America needs is a national insane asylum….
I was right! Supreme court upholds Obamacare