It’s alive! Individual mandate upheld by SCOTUS (sort of)
posted at 11:24 am on June 28, 2012 by Howard Portnoy
At 10 o’clock on Thursday, June 28, the nation held its collective breath as the Supreme Court began reading its rulings for June. ObamaCare was number three on the docket, after United States v. Alvarez, which held that it is permissible for a current or former member of the armed forces to lie about receiving a medal.
At 10:08, the opinion everyone was waiting for came down. Crowds milling outside the high court and television viewers alike were told that the individual mandate had been struck down. Within minutes, that reading had been revised. A split 5-4 decision held that the individual mandate is constitutional, but as a tax. The swing vote turned out to belong to Chief Justice John Roberts, who sided with the left-leaning justices. Justice Anthony Kennedy voted with the conservative minority.
On Tuesday, Speaker John Boehner warned his House colleagues not to spike the ball if the ruling went Republicans’ way. Rest assured that President Obama will do precisely that when he speaks on the ruling, which is scheduled to happen shortly. He will almost certainly praise the court—which he assailed three short months ago as an “unelected group of people” guilty of “judicial activism”—for its infinite wisdom and restraint.
His jubilation, however, may be premature—and short-lived. The line in the sand between the two factions has become etched more deeply with today’s ruling, which throws up new obstacles for the administration and Democrats.
One major hurdle that the president must now contend with is his repeated insistence in 2009 that the individual mandate was not a tax. In September of that year, ABC’s George Stephanopoulos put this question to Obama: “Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?” Here is a transcript of the exchange that followed:
Obama: Well, hold on a second, George. Here—here’s what’s happening. You and I are both paying $900, on average—our families—in higher premiums because of uncompensated care. Now what I’ve said is that if you can’t afford health insurance, you certainly shouldn’t be punished for that. That’s just piling on. If, on the other hand, we’re giving tax credits, we’ve set up an exchange, you are now part of a big pool, we’ve driven down the costs, we’ve done everything we can and you actually can afford health insurance, but you’ve just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that’s…
Stephanopoulos: That may be, but it’s still a tax increase.
Obama: No. That’s not true, George. The—for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.
Stephanopoulos: But it may be fair, it may be good public policy…
Obama: No, but—but, George, you—you can’t just make up that language and decide that that’s called a tax increase. Any…
Stephanopoulos: Here’s the…
Obama: What—what—if I—if I say that right now your premiums are going to be going up by 5% or 8% or 10% next year and you say well, that’s not a tax increase; but, on the other hand, if I say that I don’t want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then…
Stephanopoulos: I—I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax—”a charge, usually of money, imposed by authority on persons or property for public purposes.”
Obama: George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what…
Stephanopoulos: Well, no, but…
Obama: …what you’re saying is…
Stephanopoulos: I wanted to check for myself. But your critics say it is a tax increase.
Obama: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but…
Stephanopoulos: But you reject that it’s a tax increase?
Obama: I absolutely reject that notion.
In addition, the court’s decision was unequivocal in its finding that Congress had overstepped its authority in writing this legislation, emphasizing that the individual mandate as a non-tax vehicle was beyond the scope of the Commerce Clause. Its and Obama’s overreach are sure to become a GOP talking point.
Finally, there is the matter of ObamaCare’s abiding unpopularity. For nearly the duration of its existence, the law has been opposed by a majority of voters. A plurality of voters also want to see the law repealed.
Today’s ruling is not likely to alter either of those sentiments. Nor will it change the perception, put forth in recent days by liberal pundits, that Obama squandered the first half of his term as president pushing for passage of the health care law when his sights should have been set on rescuing the economy.
The fight is just getting underway.
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