Winning a Battle- Lose the War!

Weekly Opinion Editorial

WINNING A BATTLE- LOSE THE WAR!

     by Steve Fair

    

      The ruling on federal mandated health insurance by the Supreme Court of the United States has dominated the news in the past week.  Chief Justice John Roberts joined with the four liberal justices on the court to uphold the individual mandate requiring all Americans to buy health insurance or to pay a fine. 

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     Writing the majority opinion, Roberts and the other four justices evidently based their decision on ObamaCare being a ‘tax.’  President Obama and the Democrats have long argued the mammoth federal health care program was not a tax.  Conservatives had argued that forcing Americans to buy a product was a violation of the Commerce Clause in the U.S. Constitution.  The justices agreed that the government could not force us to buy a product, but then in their 5-4 ruling contradicted themselves by saying it could be done if it was called a ‘tax.’ 

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     Four observations about the ruling:

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     First, this ruling surprised most people because the ‘tax’ argument was not expected to be the basis of the ruling.  It is true Congress is given the constitutional authority to tax, but is ObamaCare a tax?  Not according to Justice Scalia, who wrote in the dissenting opinion, “To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” And President Obama has repeatedly said the fines and penalties imposed on Americans who do not buy health insurance are not a tax.  On Sunday, his chief of staff, Jack Lew said on CNN’s State of the Union that the penalty for failure to buy health insurance is not a tax.   "This is a penalty," Lew said "It's something that only 1 percent of the people who could afford insurance -- (and) who choose not to get it -- will pay."  So while the SCOTUS rules the Individual Mandate a tax, the White House doesn’t want to have it labeled a tax in an election year. 

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     Second, federal mandated health insurance is most certainly a tax.  Webster defines a tax as: a sum of money demanded or required by a government for its support or for specific facilities or services, levied upon incomes, property, sales, etc.   Federal mandated health insurance fits the definition of a tax.  As Shakespeare said, “A rose by any other name would smell as sweet.”  Penalties are a form of taxes just as are tolls, tribute, import duties, customs, and excise fees.   Calling a tax a tax can be political suicide, so politicians have conveniently re-labeled taxes and called them mandates and penalties, but that doesn’t change what they are. 

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     Third, you never know about Supreme Court justices.  Most presidents nominate candidates who broadly share their ideological views, although a justice's decisions often end up being contrary to a president's expectations.    According to the U.S. Constitution, “The President of the United States appoints justices "by and with the advice and consent of the Senate.”   The current nine members include two appointees by Presidents Reagan, Clinton, George W. Bush, and Obama.  Clarence Thomas, the most conservative member of the court, was appointed by President George H.W. Bush.  Once appointed, justices have life tenure unless they resign, retire, or are removed after impeachment.  The current justices age range from 52 to 79.  There are three women on the court.  Chief Justice John Roberts was expected to be a reliable conservative on the court, one who would rule based on the Constitution.  That didn’t happen.  In the dissenting opinion, the four conservatives on the court firmly stated the case should have been tossed out because the individual mandate was unconstitutional.  So how did Roberts, a constitutional expert, get this wrong?  Charles Krauthammer, a conservative commentator who disagreed with the ruling, says Roberts made the ruling to avoid the appearance of politics on the high court and because he carries two identities. “Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court's legitimacy, reputation and stature,” Krauthhammer said.  

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     Fourth, this ruling is really a nightmare for the Democrats.  It allows them to claim victory in a battle, but it could cost them the war.  President Obama said the ruling was, “ a great victory for all Americans,’ but 69% of the American public have said they don’t want ObamaCare.  Rush Limbaugh says it was the largest tax increase in world history.  Now the Democrats must take ownership of that TAX.  In the majority opinion Roberts wrote,  “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

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     The Supreme Court ruling told the American public ObamaCare can be overturned the same way it was passed — elect a new president and a new Congress.