Fact, Fiction, and Bias: Obamacare and the Court

Obamacare is not constitutional, because the infamous Health Care Mandate is not a tax. This decision reveals larger problems with a branch of government that is supposed to be unbiased and fair.

Accepting the Supreme Court’s decision on Obamacare requires creative justifying. It takes a great deal of imagination to see a law that strangles so many basic economic freedoms as within the constitutional limits of our government. Accordingly, Chief Justice John Roberts’ Court opinion on Florida v. Dept. of Health and Human Services v. Sibelius, the great legal challenge to Obamacare, is exactly that: imaginative.

But Roberts is not a novelist. He’s the most powerful judge in America, charged with determining the constitutionality of the actions of the other branches of government. His support or opposition to a law should be grounded in an understanding of the Constitution, legal precedents and nothing else. Roberts deserted this responsibility in his ruling on Obamacare.

Roberts found within his judicial conscience to style a coercive mandate as a “tax” and uphold the abolition of “discrimination” in health care, previously known as insurers charging more to cover people who are more likely to get sick. It remains to be seen what ulterior motives brought Roberts to his decision, be they political or otherwise. But the unconstitutionality of his ruling is clear.

The contrived nature of the Supreme Court’s ruling is all too evident in conversations with those who support it. Challenge a supporter of Roberts’ decision and you will see their eyes widen at your audacity, but they will always give way to a tidy, glib outline of the all-important distinction between taxes and mandates. These people are in love with the outcome of this court case because they believe it gives them an indomitably concise and politically moderate justification of their favorite Barack Obama achievement. Had the law been upheld on a generous reading of the general welfare clause, they would have to be pretty liberal to stand by it. Now they can just smile and say, “It’s a tax, silly!”

But the individual mandate isn’t a tax. Let’s look at the law in exact constitutional terms. It’s easy and it’s what a judge is supposed to do. The Affordable Care and Patient Protection Act requires individuals to purchase some form of health insurance. Broadly, this was justified by the Interstate Commerce Clause, which gives the federal government the power to regulate commerce between the states. What commerce is being regulated by this law? People choosing not to buy insurance? No commerce takes place when someone stays at home and chooses not to see an insurance salesman. Compelling individuals to buy something is not regulation of commerce. Instead, it compels individuals to buy something.

Here we come to the “tax” element of the court decision. Perhaps this incredibly expansive reading of the Commerce Clause can be made a little more palatable if we call the penalty for not buying what the government endorses a tax.

It’s easier to swallow but no more constitutional. There are five kinds of federal taxes: excise, income, sales,  direct taxes and tariffs. In the interest of space, I will assume readers are familiar with all of these but the direct tax. A direct tax is a tax levied by Congress on all U.S. citizens that must be structured so that each state pays in proportion to its population. The direct tax and the other four types are explicitly authorized by the Constitution. Thus, a tax on individuals’ inaction is not a tax at all, as far as the constitution is concerned.

The trouble with the Roberts interpretation of Obamacare is its absurdity. In reading it, you can either accept its flimsy legality because you think it’s about time America caught up with the rest of the world in the health care department or see a dark day for the supposedly apolitical and constitutionally-driven high court of the United States.

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