Thursday, July 05, 2012


From the Huffington Post:

Mike Lee On Individual Mandate: 'I Don't Think It Was A Tax'

Sen. Mike Lee (R-Utah) backed up a top Mitt Romney adviser -- and the Obama administration -- on Wednesday, saying he does not personally believe the individual mandate at the heart of the Affordable Care Act is a tax. But now that the Supreme Court has ruled that it is one, he believes it's fair game as a political attack.

"The Supreme Court said it was a tax. I don't think it was a tax,” Lee told “Congress didn’t think it was a tax. The president assured us that it wasn't a tax. There's nothing about the text or the structure of the Affordable Care Act that suggests it was a tax. But the Supreme Court concluded that it was."

Lee's stance isn't entirely surprising, since he once served as a clerk for Supreme Court Justice Samuel Alito, who was part of the dissent that ruled that individual mandate was unconstitutional, period. Chief Justice John Roberts, writing for the majority, ruled that the mandate was constitutional not under the Commerce Clause but under Congress' power to levy taxes.

More here.

I have to admit that I like the outcome, that I really like that Obama's fucked up health care law survived the Supreme Court. Like I said the other day, I have big problems with such an industry giveaway bill, but it does represent a small baby-step forward. So, I'm pleased. But this was an absolutely awful ruling.

Because the Republicans are right: a "penalty" is not a "tax." Indeed, the Democrats fell over themselves to craft the mandate such that it could not in any way be considered a tax, for obvious reasons, which the GOP is now trying to exploit. That is, the law that came before the Court required people to have health insurance, and punished people who broke the law with a penalty imposed by the IRS. After Chief Justice Roberts was done writing the majority opinion, however, the mandate became a tax levied on all citizens, but one that could be deducted in full by people with health insurance. See the difference? I mean, in the end it's virtually the same effect, but that effect is achieved in an extraordinarily different way.

That is, as the minority justices asserted, the majority ruled on a law that did not exist. Of course, it exists now. Now that the SCOTUS has "legislated from the bench."

Really, the issue was whether Congress, under the authority it derives from the Constitution's commerce clause, can require average ordinary citizens to buy a product they wouldn't necessarily have bought of their own free will. And to be honest, I'm kind of uncomfortable with Congress having that power, but, what the hell, countless previous SCOTUS rulings have allowed Congress to do all kinds of shit under the commerce clause, so I was willing to bend over and take it, myself, just because we desperately need some kind of health care reform. And, for the record, I have no problem with Congress doing what Roberts claimed they were doing as far as the mandate being a tax goes.

It's just that Congress didn't write the law Roberts says they did.

It's pretty clear that the conservative Chief Justice was up to something. Rumor has it that the other four justices in the majority were ready to approve the law under the commerce clause when Roberts approached them with this tax scheme and managed to quickly win them over. So what's going on here? We can only speculate.

The best guess I've heard so far is that Roberts was truly worried, after tons of crazy right wing Supreme Court decisions going back to Bush v Gore, that his institution's reputation was in severe danger of being perceived as intensely partisan, rather than objective and judicial. But he couldn't just turn himself into a liberal, couldn't expand federal power, so he pulled the tax thing out of his ass, thereby giving liberals what they wanted, and buttressing the Court's reputation for years to come--a sort of corollary speculation is that he might also be trying to lay the legal groundwork for a massive rollback of federal power by way of weakening the commerce clause, but, of course, we don't really know.

One thing's for sure. This decision represents in full the concept of "judicial activism" that has outraged conservatives since the 1960s. And now that I've seen this shit happening before my very eyes, I'm having kind of a bad taste in my mouth, too. That is, in regard to conservative justices embracing "judicial activism," as Han Solo said, "I've got a bad feeling about this." Roberts did not become a liberal with this decision. He's still a conservative.

What's he got in store for us?