O'Taxacare: Too Clever by Half

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I probably shouldn't start out this conversation with, "Ha!  I knew I was right!" But tonight I find I simply can't help myself, even if I am in lonely company, on deserted, desolate, conservative shores.

Because my first impression, after glancing over the Obamacare opinion -- pictured for you to see, in all it's glory -- was that Chief Justice Roberts's opinion was diabolical.  In short, he turned Obamacare into O'Taxacare, gutted it, and left Congress with no remedy to fix it.  Period.  The end.

It is with great joy and gladness I affirm that my first impression was correct -- even if no one else agrees with me.  Hold tight, my new crush, Chief Justice:  our day will come.

It's taken me some time to process the opinion, due to its density -- not to mention, volume.  The photo below, an aerial view from my kitchen table, captures:  the majority, the concurring, the partially concurring and partially dissenting, the dissenting, and the dissenting separately, opinions.  It took nearly a ream of paper for me to print, and a massive white board to Venn diagram, the blasted thing.

So now then, let's get to it.  We all know there's been much squawking, squatting, hollering, gloating, and confusion -- on both sides of the aisle.  Is Obamacare a bird? A plane? A penalty? A tax? Pen-a-tax? No wait, it's an exaction!

Should conservatives jeer at Justice Roberts, call for his head, or go under cover until they understand his opinion better?

Should liberals cheer Justice Roberts, call for a frugal party in Nags Head?  Draw baths and head for their less intellectually taxing, flat-screen-TV trussed beds?

Blather, blather, yammer and clamor.

Here are my apolitical thoughts (in the sense that while I'm conservative, I have no interest in attacking or defending Roberts;  I've no dog in that hunt. I'm just giving you my legal analysis, straight-up).

And while I'm no constitutional law scholar, I can tell you this:  I have a law degree; listen to oral arguments while I'm cooking in the kitchen, for fun; and occasionally -- though, not often -- beat at chess my 11-year old son.  Which I daresay makes me frightfully better than your average TV analyst Joe.

 

So, let's go.  Without further ado, my take on the whole:

Robertson interpreted the Obamacare individual "mandate" -- which is to say, "you must buy health insurance" -- as a tax.  Not the onerous mandate we envisioned, which would be punishable, but a mere tax, and a tax you can thumb your nose at, at that.

So watered-down a tax it is, carefully crafted by the Democrats to be just so, could not be construed as a penalty.  Just a benevolent, run-of-the-mill tax.  (Now, "benevolent tax" is a bit of an oxymoron, I'll grant you that.  But look at the enforcement provisions in O'Taxacare;  it has almost no teeth.)

"The hell, you say.  There's no meaningful difference!"  A tax is just as horrible, awful, and well, awful as a penalty.  So who gives a damn, except for stupid egg-heads, whether it's called a "penalty" or a "tax"?  It was upheld as Constitutional, damn it, and we'll huff and we'll puff 'til we blow your house down.

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Right, then.  Huff and puff away, my earnest friends.  I'll be blowing right along side you, make no mistake.  

But constitutional lawyers far more schooled than I will tell you the difference between a penalty and a tax is vast.  Immense, even. Far more than a nuance.

In this case, it is the difference between the mandate being Constitutional and flat-out void.  Because Congress's attempt to penalize citizens for not buying healthcare insurance will not pass constitutional muster.

Let me repeat:  Congress's attempt to penalize citizens for not buying healthcare insurance will not pass constitutional muster.

In plain English, if Congress tried to force us to buy health insurance by exacting a penalty -- typically enforced by wage garnishment, for instance, or liens on our property, or criminal sanctions (the usual arrows in the IRS quiver) -- that would make the law unconstitutional.  Void ab initio.  *Poof*

So when the Supreme Court held that any failure to buy insurance is a tax -- and not a penalty -- that is, in Obama's impressive utterly presidential tweeting vernacular -- a "BFD."

After Roberts got through wringing it out, Obamacare is so thoroughly unworkable, and holds politicians now so directly accountable to their constituents -- because it's a TAX, you see -- that the law is rendered virtually worthless.  A joke, if you will.

The jig is up.

Congress's magical commerce clause powers have been decimated.  As for their tax and spending powers?  Almost, but not quite, nada.  Members of Congress are now, finally, fully beholden to the people who put and pay to keep them there. 

The BFD is DEMOCRACY.

With Obamacare now O'Taxacare, it's cheaper for people to pass on insurance -- thanks, Uncle Sam, but no thanks -- and just pay the tax.  That holding alone obliterates the fundamental working premise of Obamacare:  put a bunch of healthy people into the pool with the sick, so that the insurance companies can manage the risk.  

Gone, gone, gone.  Bye-bye, actuarial birdie.

Not to mention, Roberts made sure the states didn't have a federal gun pointed to their head either.  If any state opts out of O'Taxacare, there will be no loss of its existing medicaid funds.  Boom.  Another gun-shot wound.

Alas, for our elected, Roberts's opinion says Congress has no power to fix these fatal flaws.  He clearly signaled that if Congress takes even one step further to force this "mandate" on we, the people, kaboom.  The health care tax will become an unconstitutional penalty and cease to be legitimate.  

And that will be the Constitutional end of that.

So, err, can Congress maybe try again to pass this mandate again under its Commerce Clause powers?  Ha!  That vanquished vampire squid?  Not a chance, said Chief Justice Roberts.  Not a chance.*

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Alrighty then.  What about under Congress's Necessary and Proper powers?  No way, said the Chief.  Don't even think about it.

Well, hells bells, is there anything left to think about?  

Is there anything Congress can do to exact extract itself from this mutilated, swiss-cheesed piece of law -- so that it actually works from an actuarial standpoint for the insurance companies, in any conceivable way that passes Constitutional muster?  Nope.  Nope.  And nope, again.

So all this ouija-board talk of Roberts switching his vote, or getting impeached, or being forced to resign, or ride around town with an apple on on his head, barred from the DC cocktail circus circuit's appellations?  Rubbish.  Enough.

Were I the blunt sort, I'd say, "bless their pitiful hearts, they don't know sh#t."  But that's far too crass and I'm nothing, if not . . . well, not crass.

If it isn't the first bedrock of constitutional law, it is surely a close second:  if Congress passes a law and there is any constitutional basis upon which the Supreme Court can uphold it, uphold it the Court must.  And Congress, too clever by half, made it very easy for Roberts to do just that.

By making the tax so soft -- so "penalty-lite" -- the Court (and its liberal justices, lest we forget) could and did uphold it as tax, unleashing the voters to roar their disapproval at Congress's throat-jamming bait-and-switch, leaving Congress completely powerless to do anything to try to fix this damned, doomed law.

Any talk of the dissenters refusing to engage with Roberts in their dissenting opinion is well, silly and speculative gossip -- which holds no appeal for me.  But were I the sort to engage in silly and speculative gossip, I'd say my hero, Justice Scalia (and you should read no irony there -- because he is my hero, frankly), might just be a tad bit envious he didn't come up with this diabolical plan in the first place.

It's no wonder Obama's new message is:  hey, let's move on from this O'Taxacare debate.

That's what I say, anyway.  A rose is a rose is a rose.  So there.

* And if you want to argue w/me whether that part of Roberts's opinion was dicta, email me.  I'll laugh, respectfully, while we tawk. 

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