Mandate upheld: what now?

posted at 10:41 am on June 28, 2012 by Ed Morrissey

After months and months of focusing on Anthony Kennedy as the weak link in the conservative chain at the Supreme Court, it turns out that Chief Justice John Roberts was the one the Right needed to fear.  With the more centrist Kennedy dissenting, Roberts signed off on the individual mandate in ObamaCare, not as part of Congress’ power under the Commerce Clause, or even the ludicrous reference to the “Good and Welfare Clause” from some Democrats, but from the more mundane and substantial power to tax.  The opinion actually ruled that the mandate violates the Commerce Clause, but as a tax that no longer matters.

It’s an interesting argument, but one that should have Americans worried.  Basically, this is a tax that you have to pay to private companies.  For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II].  The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing.  It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.

Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

By the way, don’t forget when Obama insisted that this wasn’t a tax, via Patterico:

So what now?  Mitt Romney and Republicans can now run on repeal as a big issue in the campaign.  They should emphasize the tax argument when they do, because this tax hits everyone.  The ruling may alleviate some of the bad polling the ACA has received, but probably not by much.  It’s going to remain deeply unpopular for the next few months.  On top of that, the decision to uphold the law also means that the fight is still on over the HHS contraception mandate.  We can expect the Catholic bishops to keep up the pressure on the Obama administration’s attempt to define religious expression for the purpose of controlling and limiting it — and we can probably expect the challenge to it to reach the Supreme Court, too.

This started off as a political fight, though, and it’s now clear that it has to get resolved as a political fight.

Update: Bill Whittle explains why ObamaCare won’t work:

Expect the GOP to be making these arguments on the campaign trail over the next few months.

Update II: I clarified what I meant in the second paragraph by editing it a bit.  My argument is this: the tax isn’t just on non-compliance, which is what Roberts and the court ruled constitutional.  The law forces people to give money to private industry, in the form of buying health insurance.  That’s a tax too, imposed by force on Americans, in this case the force of the penalties and the legal consequences of not paying them.


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