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June 28, 2012

Eat Your Broccoli! The Supreme Court Decision on Obamacare

Virginia Attorney General Ken Cuccinelli is fond of saying that if the government can make you buy health insurance, they can make you eat, or at least buy, broccoli. It may seem like an odd way to put it, but he's right.

Liberals usually retort that everyone has to have car insurance, so what's the difference? The difference is that you don't have to own a car. No car, no requirement to have car insurance. But by simple virtue of existence as an American you are now required to buy health insurance. They can call the fine if you don't a "tax" all they want; it's a fine all the same. From Fox News:

The decision to uphold ObamaCare and its individual mandate forcing people to buy health insurance was based on the federal government's taxing authority rather than other powers.

The Roberts majority determined that Congress deserved reasonable deference on the determination of whether the cost incurred for non-compliance with the individual mandate to obtain insurance was a tax or a penalty.

"Congress's authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation -- especially taxation motivated by a regulatory purpose -- can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice," the majority wrote.

Whatever. The take-away is that this is one of the most dramatic increases in the power of the federal government that we have seen in a long time. If they can make you buy health insurance, they can indeed make you buy certain food. Foods they say is good for you. All for your own good, of course.

As Karen Harned put it in an editorial on Fox News, "Americans have lost the right to be left alone.

I don't have much time, so I'll post this editorial from National Review, which sums up what I think:

Chief Justice Roberts's Folly
June 28, 2012 2:00 P.M.
By The Editors

In today's deeply disappointing decision on Obamacare, a majority of the Supreme Court actually got the Constitution mostly right. The Commerce Clause -- the part of the Constitution that grants Congress the authority to regulate commerce among the states -- does not authorize the federal government to force Americans to buy health insurance. The Court, by a 5-4 margin, refused to join all the august legal experts who insisted that of course it granted that authorization, that only yahoos and Republican partisans could possibly doubt it. It then pretended that this requirement is constitutional anyway, because it is merely an application of the taxing authority. Rarely has the maxim that the power to tax is the power to destroy been so apt, a portion of liberty being the direct object in this case.

What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. Congress would almost surely have been within its constitutional powers to tax the uninsured more than the insured. Very few people doubt that it could, for example, create a tax credit for the purchase of insurance, which would have precisely that effect. But Obamacare, as written, does more than that. The law repeatedly speaks in terms of a "requirement" to buy insurance, it says that individuals "shall" buy it, and it levies a "penalty" on those who refuse. As the conservative dissent points out, these are the hallmarks of a "regulatory penalty, not a tax."

The law as written also cuts off all federal Medicaid funds for states that decline to expand the program in the ways the lawmakers sought. A majority of the Court, including two of the liberals, found this cut-off unconstitutionally coercive on the states. The Court's solution was not to invalidate the law or the Medicaid expansion, but to rule that only the extra federal funds devoted to the expansion could be cut off. As the dissenters rightly point out, this solution rewrites the law -- and arbitrarily, since Congress could have avoided the constitutional problem in many other ways.

The dissent acknowledges that if an ambiguous law can be read in a way that renders it constitutional, it should be. It distinguishes, though, between construing a law charitably and rewriting it. The latter is what Chief Justice John Roberts has done. If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken. The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.

The Court has failed to do its duty. Conservatives should not follow its example -- which is what they would do if they now gave up the fight against Obamacare. The law, as rewritten by judges, remains incompatible with the country's tradition of limited government, the future strength of our health-care system, and the nation's solvency. We are not among those who are convinced that we will be stuck with it forever if the next election goes wrong: The law is also so poorly structured that we think it may well unravel even if put fully into effect. But we would prefer not to take the risk.

It now falls to the Republicans, and especially to Mitt Romney, to make the case for the repeal of the law and for its replacement by something better than either it or the health-care policies that preceded it. Instead of trusting experts to use the federal government's purchasing power to drive efficiency throughout the health sector -- the vain hope of Obamacare's Medicare-cutting board -- they should replace Medicare with a new system in which individuals have incentives to get value for their dollar. Instead of having Washington establish a cartel for the insurance industry, they should give individuals tax credits and the ability to purchase insurance across state lines. Instead of further centralizing the health-care system, in short, they should give individuals more control over their insurance.

Opponents should take heart: The law remains unpopular. Let the president and his partisans ring their bells today, and let us work to make sure that they are wringing their hands come November.

Put simply, they destroyed the law in order to save it. Or they twisted the law in order to uphold a political policy.

Some say this will not be a very big issue in the election, which they say will center around jobs and the economy. I agree in that this is what will sway the swing voters. But this ruling, and the fervent desire to be rid of this awful law, will fire up the Republican base and encourage donors to dig deeper in their pockets. While I'd rather have had the ruling go the other way, this ruling will motivate Republican volunteers like nothing else.

Posted by Tom at June 28, 2012 9:15 PM

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Comments

I think this ruling will bring many swing voters to Obama's side, as they have little appetite to re-fight this whole issue and start from scratch. The court's ruling will have the effect of legitimizing ObamaCare like nothing else could have, and the way this country looks at healthcare has been redefined forever. Obviously, none of this is good news for your side, but it is a giant step forward for our country. The train is leaving the station...hop aboard or get left behind!

Posted by: RW Nutbag at June 29, 2012 6:22 AM

Snake Hunter Sez,

The elegant lady, her frumpy husband and 10 yr old
Leroy were at the dining table, and the maid was busy with a beverage, when 'mother dearest' said, "Eat your broccoli, Leroy"...

The skinny little boy's face turned into an ugly grimace, and he let out a shriek, "I say it's Spinach, AND I SAY TO HELL WITH IT!"

reb -- > http://www.lazyonebenn.blogspot.com

Hi Tom.
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Posted by: Ralph E. at July 8, 2012 11:27 PM

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