The Supreme Court on Thursday effectively changed the nickname for the Affordable Care Act from “Obamacare” to “Obamatax.”
The court’s 5-4 ruling to uphold the ACA’s individual mandate was disappointing, in that it let stand a monstrously unwieldy and costly federal health insurance law that intruded on individual freedom. However, the justices’ rationale for the mandate was not Congress’ power under the Constitution’s Commerce Clause, as argued by the Obama administration and many of the legislation’s supporters. Instead, the majority chose to validate it under Congress’ authority to tax.
In doing so, the justices embraced an argument explicitly rejected by President Obama himself, as well as several lower courts.
On the surface, it is a distinction without a difference. The federal government still can mandate that Americans must purchase products from private vendors under penalty of law the penalty now considered a tax. That remains an unacceptable intrusion into Americans’ private lives.
Nevertheless, the silver lining is that the Commerce Clause, which courts since the New Deal have interpreted to accommodate breathtaking expansions of congressional power, remains intact — bruised from so much stretching, but still imposing some restraints on federal authority.
Had the ACA been upheld under the clause, it would have removed all vestiges of limiting principles.
This is an encouraging development for constitutional jurisprudence going forward.
Of course, the downside is that Congress now can concoct any new massive power grab and “tax” anyone who fails to comply with it (“Buy broccoli or pay $5,000 to the IRS”).
That word “tax,” though, carries significant political freight (just ask Grover Norquist). Politicians often jockey to spin any increase in costs as a “tax” so as to gain a rhetorical advantage — many voters recoil at the idea of government’s greedy hand yet again slipping into their pockets.
Indeed, that is exactly the reason why President Obama vociferously denied the ACA’s mandate was a tax. He knew that would be a political loser.
But that’s just what the Supreme Court has handed him: a victory on substance, but a potential liability on the politics.
That millstone will be attached to any future mandate with penalties, ensuring it will be framed as a “broccoli tax” or a “green tax” or an “exercise tax” — and with the Supreme Court’s imprimatur.
The court is essentially saying that these issues have political solutions. If Congress wants to pass these kinds of mandates (and a president signs them into law), it will have to classify them as taxes — and navigate the political waters with them as taxes. The ultimate arbiters of those decisions will be voters.
As Chief Justice John Roberts wrote for the majority, “It is not our job to protect the people from the consequences of their political choices.”
Opponents of the mandate should consider Roberts’ words their marching orders for November.
The Panama City News Herald