This column by ACRU Senior Fellow Robert Knight was published June 29, 2012 on The Washington Times website.
When is a tax not a tax? Answer: When you're busy pushing a major expansion of government like Obamacare. The tax that is not a tax becomes a "penalty" or a "shared responsibility payment" in the text of the bill. In campaign lingo, it becomes an "investment."
That's what the Democrats told us when they rammed Obamacare down America's throat. In a famous clip you can find on YouTube, President Obama adamantly denies to ABC's George Stephanopoulos that the individual mandate is, in fact, a "tax."
As soon as it hit the courts, however, the tax that is not a tax morphed back into a tax as Mr. Obama's attorneys justified it through Congress' Article I power to tax and spend. The White House, which lambasted opponents for calling the mandate a tax, argued in court that the mandate's enforcement under "Assessment" and "Collection" are right out of the code for the Internal Revenue Service, which will collect the tax, er, penalty, er, uh, tax. Yeah, that's it.
Keep in mind that the individual mandate is only one of 20 new or higher taxes Obamacare imposes on American families. Without the mandate, all parties agreed, Obamacare and those tax increases would go down. People would avoid buying insurance until they get sick, and the system would collapse.
Thursday's jaw-dropping 193-page decision, written by Chief Justice John G. Roberts Jr., sounds good at first but ends like a bad novel. By a 5-4 margin, the court upheld the largest tax increase in American history and a massive power grab imposed through trickery, lies, smears, bribes and class warfare. Senate Majority Leader Harry Reid even managed to step on Christmas. Of course, none of this is germane to whether the bill is constitutional. I just like reminding people of how it went down.
The ruling did curb the reach of the commerce clause, the phrase that has empowered several generations of power-hungry liberals, and that part must taste like sour milk in their otherwise delicious smoothie. In his opinion, Justice Roberts wrote: "Construing the Commerce Clause to permit Congress to regulate individuals precisely becausethey are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do."
Citing research that suggests obesity is responsible for 10 percent of health care costs, or about $147 billion annually, the court warned about Congress' temptation to regulate, saying, "Under the government's theory, Congress could address the diet problem by ordering everyone to buy vegetables." Michelle, put down that phone.
Even the court, at least at this juncture, decided that would be a bit much: As Justice Antonin Scalia wrote in his dissent, joined by Justices Samuel Anthony Alito Jr., Anthony M. Kennedy and Clarence Thomas: "If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, 'the hideous monster whose devouring jaws ... spare neither sex nor age, nor high nor low, nor sacred nor profane.' "
Justice Roberts' take isn't as colorful, but it does the job: "The Commerce Clause is not a general license to regulate an individual from cradle to grave."
That's great, but who needs the commerce clause when you can justify the same thing via Congress' power to "lay and collect taxes?" The ruling provides an expansive view of the power to tax: "Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy-efficient windows must pay $50 to the IRS. ... No one would doubt that this law imposed a tax, and was within Congress' power to tax."
Really? We can be forced to buy a type of window - or else? No wonder the court thinks it's OK to tax someone just for breathing and not buying health insurance.
The ruling, as bad as it is, does whack the federal government's ability to punish naughty states that don't take more Medicaid candy from the nice men in the parked van with D.C. plates. The feds can dole out Medicaid money with strings, but "[w]hat Congress is not free to do is to penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."
Most important, the court's shocking decision sets up a scenario similar to the one that produced the Tea Party-GOP tsunami in 2010. Some observers credit Justice Roberts with Machiavellian intent, saying he has guaranteed Mitt Romney's election. Others say the chief justice's ruling, combined with the immigration decision against most of Arizona's law, is proof that he has "gone Washington" and is worrying about what's said at cocktail parties, like many previously conservative GOP appointees before him whose names I won't mention (Justices Kennedy, Sandra Day O'Connor, David H. Souter, John Paul Stevens and Earl Warren).
I hope Justice Roberts is sounder than that, even if this decision rots. His opinion might simply reflect his conservative bent that big issues need to be decided at the ballot box, not in the courts. Indeed, Justice Roberts wrote: "Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."
No, the court won't save us. We must get involved in November's election as if our children's and grandchildren's future hangs in the balance.
That's not too taxing for freedom-loving Americans, is it?