Whatever else it did or didn’t do, Chief Justice John Roberts’s Obamacare opinion had the effect of cutting away major deceptions and hypocrisies surrounding the president’s health industry takeover legislation.
For from the first, the administration has attempted to protect the truth about the 2,700-page Affordable Care Act with – in Winston Churchill’s characterization of very different protections for very different truths in very different times – a bodyguard of lies.
The president and the Democratic majority of the 111th Congress (the one that passed the ACA) knew the country would reject the new taxes and new entitlement they were proposing, not to mention direct government financing of health coverage, the so-called single-payer option. So to get to where they wanted to go, they jerry-rigged a convoluted legal and bureaucratic contraption, designed to look like one thing while running like another.
Taxes and services were relabeled penalties and mandates. The underlying universal entitlement was masked with the option to obtain private health coverage. But the private insurance had to conform to rigid, entitlement-program-by-other-means Federal rules. If you, a single man or a post-menopausal women, didn’t want pregnancy services… or you, a devout Catholic, didn’t want coverage for contraception and abortions… or who knows what else… too bad, you had to pay for them anyway. A pricing differential was designed into the program that in time would inexorably draw all but a wealthy few into the program.
In other words, though hidden in the statute by what was, essentially, legal rhetoric, the truth was this: Congress did not pass a mandate and a penalty. It passed a universal, single-payer national health plan, funded via a dedicated tax, with an opt-out provision.
By finding that it was “fairly possible” to consider the mandate and penalty together a tax, Roberts has moved the broader political debate a step toward clarity.
Conservative critics of the Chief Justice argue – and the language of Mr. Roberts’s opinion reinforces them – that we will be taxed for inactivity, an expansion of Congress’s taxing power. But if this view fits the language of the opinion and the rhetoric of the statute, it does not fit the facts of the case. Anyone paying the tax (previously penalty) will receive government health coverage in return. Calling the transaction a mandate was a ruse. The president and his congressional allies imposed on us just what they said they wanted to impose, and a majority of Americans rejected – Medicare for all.
Of course, the opt-out stratagem came at a price, not just in dollars but in accepted standards of American liberty. Like furry little Mogwai in Steven Spielberg’s classic Gremlins, the opt-out started life looking benign and then changed. As regulations have popped out of it, particularly those assaulting the Catholic Church and other believer groups, we have already seen how quickly the Democrats’ cuddly creation can generate monsters.
The public has not been amused, undoubtedly all the more so now that the penalty has been unmasked as a tax. To see how the White House received this apparent victory, put a stopwatch on the light speed run of the president’s reelection spokespeople to the microphones for a denial that the “penalty” was a “tax.” Cultivating clarity wasn’t the opinion’s only trap for the Left.
As everyone knows by now, Roberts declared the Affordable Care Act unconstitutional under the Commerce Clause and the Necessary and Proper Clause, the first time the Court has made such a ruling since the 1930s – a precedent in which at least four justices joined the Chief Justice. And, of course, seven justices – including, to her credit, Elena Kagan – joined in imposing the first limits ever on the use of spending power to strong-arm states.
Commentators have lamented that these advances in constitutional doctrine came at the expense of expanded, even unlimited taxing powers. But are they right? If Mr. Roberts’s hypothetical of taxing non-insulated windows is wrong and the present instant to which he applied it is, in point of fact, standard financing of Federal services by another name, has the taxing power been changed at all?
Paul Clement and others on the petitioners’ team may lament that they did not see the tax angle coming. They shouldn’t beat themselves up. The Chief Justice was probably determined to find a route to this conclusion or one like it – and there are signs in the various texts released last Thursday that he may have found his path late in the game.
Mr. Roberts clearly did not want the Court to resolve a heated political fight, not another Bush v. Gore, where the same segment of American opinion, one that is in a particularly dangerous mood at the moment, lost again. Instead, as commentators from Hugh Hewitt to The New Republic’s Jeffrey Rosen have noted, he constructed something like Chief Justice John Marshall’s decision in Marbury v. Madison, giving the president the immediate win he wanted, while laying the foundation for achieving profound constitutional goals.
It is always better to win than lose. Despite all I’ve said, we lost this one. What the High Court has declined to undo must now be stopped at the polls, meaning we must run the table in the coming election, House, Senate and White House.
If I had been on the Court, I might well have voted with the conservative dissenters. And yet, on reflection, I find myself suspecting that the Chief Justice has taken a better course, not for the health of American health care, nor for limiting the immediate and terrifying power that the Affordable Care Act puts in the hands of Washington, but, if we do indeed win the election and dump the act, for the long-term health of the Republic – and the Constitution on which it stands.