Monday, July 02, 2012

SCOTUS ruling on Affordable Care Act: a tax or unconstitutional - you can't have it both ways

Since Thursday, I've read a ton of reviews, various commentaries and an analysis from just about everyone regarding the Supreme Court's ruling on the Affordable Care Act, also known as Obamacare.

An interesting point I noticed was that people who were loathe to refer to it as Obamacare when it was just the majority of the nation that hated it are now talking about "Obamacare" as if now it's okay to own it.

But the term "Obamacare" appears to make people instantly think of partisanship and while there are clearly partisan issues, my approach in this post is about the facts and the details, regardless of who likes it and who doesn't or for whatever reason.

I'm going to assume you know enough about the decision and how the justices aligned that I don't have to repeat that.

After a weekend of reading and thinking and ranting and raving, I think the whole thing boils down to one key point: the law is a tax and supporters of the law now find themselves between a rock and a hard place.

One piece (which I cannot now seem to find online) described the 5-4 ruling as really a 4-1-4 vote. I think this is the most accurate description as Justice John Roberts' opinion did sort-of split the baby.

He upheld the claims of the plaintiffs that the law was unconstitutional from the Commerce Clause perspective and from the Necessary and Proper Clause. This is a huge win for the opponents of the law.

However, he did rule that the individual mandate is a tax. This is a huge loss for the President and the Democrats as they specifically and repeatedly claimed 'it's not a tax.'

So now Pres. Obama, members of Congress who voted for it, the Democratic Party and all supporters of the law are in a lose-lose situation.

If the law is a tax, it's constitutional because Congress has the legal authority to tax. Whether they should or not is political matter, not a constitutional one for the court. But, as a result of the decision, we now have an individual mandate that is a half trillion dollar tax hike on the middle class.

If the law is NOT a tax, then it's unconstitutional because they have no other authority on which to enact it.

Going forward, if anyone wants to claim it's not a tax, as many Democrats will do in this election year and are already doing, then they are admitting the unconstitutionality of the law.

It's either a tax or it's unconstitutional - they cannot have it both ways. And we cannot let them get away with pretending anything else.

***I have a lot of other thoughts about the good, the bad and the ugly in this ruling, but I'm still reeling from the implications to individual liberty and our so-called limited government structure, so those comments will have to wait.

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