Abraham Lincoln famously liked to ask unwary acquaintances: “If you call a tail a leg, how many legs does a dog have?” The answer, of course, was four – since calling a tail a leg doesn’t make it one.
This past week’s Supreme Court ruling on Obamacare evoked that waggish bit of Lincoln wisdom. Writing for the Court’s majority, Chief Justice John Roberts (a mischievous Welshman as ever was) ruled that the “individual mandate” of the legislation – under which every individual must procure a health insurance policy, or else pay a specified penalty to the government – really constitutes a “tax,” despite whatever tag the framers of the legislation might have hung on it. Since taxation is entirely within the Constitutional purview of the Congress, the legislation was pronounced legitimate and allowed to stand.
The ruling amazed, confounded and enraged millions who had staked far too much hope on the Court overturning this 2800-page monstrosity. Based on the flavor of oral arguments before the Court in late March, both pundits and voters had expected the legislation to be struck down on grounds that the Commerce Clause cannot compel individuals to engage in commerce they are not already participating in.
As it turned out, Chief Justice Roberts and a Court majority did affirm this limitation on the Commerce Clause, thus providing succor to citizens concerned about expansion of the Clause to enable expanding governmental control over more and more aspects of American life. In fact, this part of the ruling caused some news organs to report erroneously that the Court had struck down the entire legislation on those grounds, as expected. But this was found to be incorrect, once the ruling was fully examined.
Chief Justice Roberts noted: “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution… Granting the Act the full measure of deference owed to federal statutes, it can be so read…Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. He added, “Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”
In words which will ring through history books for generations, the nation's top jurist also wrote: “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
In making this historic ruling, the Roberts Court effectively ignored the words of President Obama, House Speaker Nancy Pelosi, and Senate Majority Leader Harry Reid, who all claimed that the individual mandate was not a tax, but a “penalty” or a fee that would be charged for non-compliance with the universal insurance coverage requirement. But the Chief Justice correctly identified it as a “tax.” On this occasion, at least, the Court was not playing semantic games. (Let us all hope for a continuation of such clarity from this august body.)
This announcement that the emperor’s new clothes were a complete fiction enraged many – although not necessarily the people who had steadfastly described the “spectacular colors” of the clothes. The Obama Team had wisely covered all the bases by sometimes calling the Mandate a tax and sometimes insisting that it was not a tax – depending on who the audience was. Thus, they do not seem overly concerned with what the Mandate is called now, since that they have the ruling they desired.
Those making the most noise about the “tax” label were primarily opponents of the legislation. Thus, their complaints would seem to be pro forma, since they can now raise an almighty stink about a new tax being imposed mostly on low-income people by an administration that always promised that such people wouldn’t see their taxes go up “by one dime.” (Of course, it’s true – it will be much more than a dime…)
In truth, the Supreme Court has handed the Romney campaign a supreme gift by ruling that Obamacare can stand as written. At the same time, the Court snatched away from the Obama campaign the issue it was poised to run to victory on – i.e. the Court itself. Had the Court struck Obamacare down, in whole or in part, Mr. Obama would have been able to run against that “politicized and obstructionist” gang of black-robed “Republicans” from now until election day – whilst urging his true believers to give him four more years to reshape the Court with two or even three new appointments.
An adverse decision would have provided Mr. Obama with a perfect excuse for a presidency devoid of any signature accomplishments. And the Supremes would have been the perfect foil, since they cannot answer back with speeches or TV ads. But now, Mr. Obama can run only on Obamacare as his principal accomplishment in office. This is an asset of dubious value. Indeed, the president seldom mentions it, knowing that 2/3 of the American people disapprove and would prefer that it be repealed.
On the other hand, Mr. Romney can run against Obamacare and its newly unmasked “tax” feature, knowing that the legislation would almost certainly not have passed with the Individual Mandate correctly labeled as a tax. He has received an unexpected boon, for he now has the opportunity to keep Obamacare constantly in front of voters. With good handling, the issue can boost his election chances. Mr. Romney is also excused from posing an alternative to Obamacare, since the latter is now on the books as the solution.
Beyond these political considerations, however, the Court has handed the American People the greatest gift of all. Chief Justice Roberts has reminded us (either wittingly or un) that there is no “deliverer” – no hero on a white horse (or wearing a black robe) ready to ride in and save us from ourselves when we do something foolish. In other words, the citizens of a Republic must have the collective wisdom to see through shell games, legerdemain, and semantics when their political leaders engage in them.
The passage of Obamacare was one of the most egregious acts of legislative deception and corruption in history, starting with complete abrogation of Mr. Obama’s campaign promise that the legislative proceedings would be televised. Several outrageous political “deals” were then struck on the way to passage, to the accompaniment of various lies. Perhaps the biggest was the promise that the new plan would lower medical and insurance costs and reduce the federal debt. We need to learn how to see through such rubbish before allowing it to become law.
The Court gave us a lesson in self-governance – starting with the principle that the people must live with the legislation their duly elected leaders enact. If they want different results, they must elect different leaders. It is not the Court’s duty or responsibility to protect the people from unwise law that their representatives have passed, except when that law is clearly unconstitutional. The Court does not rule on whether legislation is well conceived, fair or even a good idea – only on whether the Constitution allows it. On that basis, Obamacare’s Individual Mandate was found to pass muster.
Elections are the People’s tool for correcting where the country is being taken by presidents and legislators. In this milieu, voters need to look at candidates with a cold, clear eye, and not be seduced by promises of unbelievable grandeur. As grandpop liked to say, when something seems too good to be true, it probably is. This was never so true as with Obamacare. We can be “saved” from it, but we shall have to do it ourselves. It’s always up to the People.