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.

Quotes of the Day - Supreme Court

Considering that the U.S. Supreme Court justices have completed their hearings on Obamacare are in now in the process of writing their decision, I thought these quotes from Chief Justices were especially relevant.  And here's a bit a trivia for you:  the title is Chief Justice of the United States, not Chief Justice of the Supreme Court.

"The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity is a power originally and always belonging to the states, not surrendered to them by the general government, nor directly restrained by the constitution of the United States, and essentially exclusive."  ~  Justice Melville Fuller, Chief Justice of the United States (1888-1910)

"State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. ... Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. No direct general power over these objects is granted to Congress, and, consequently, they remain subject to State legislation."  ~  Justice John Marshall, Chief Justice of the United States (1801–1835)

"To hold that Congress has general police power would be to hold that it may accomplish objects not intrusted to the general government, and to defeat the operation of the 10th Amendment, declaring that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' "  ~  Justice Melville Fuller, Chief Justice of the United States (1888-1910)

A fundamental problem with the Sotomayor confirmation hearings

I've been reading a lot about Supreme Court nominee Sonia Sotomayor's answers to questions during her confirmation hearing and one point keeps striking me as a fundamental problem.

She seems to be basing her answers on what the Supreme Court has previously ruled - not on the Constitution. The Constitution is the supreme law of the land - not nine individuals in black robes.

In doing this, she fails to reveal her judicial philosophy and her interpretation of the Constitution - which is critical to know when deciding whether or not to appoint or confirm a person to such a position.

My speculation is that this is a planned approach designed to conceal exactly what her judicial philosophy is, or to provide a non-controversial response to difficult questions that might, if answered differently, imperil her confirmation.

It’s a shame that none of the Senators asking her questions have noted this fact and asked her to state her own position - and not just recite what the court has previously done.

After all, that’s what she’ll have to do if she gets confirmed.

Supreme Court nominees

As President Barack Obama considers whom to appoint to the U.S. Supreme Court, I just wanted to remind you about Judgepedia.org which has a host of great information about the courts, the process and even potential nominees like Sonia Sotomayor.

You can check it often for background information about other judges who may be mentioned as replacements for Associate Justice David Souter.

A challenge when it comes to Supreme Court nominees

Friday I filled in for Brian Wilson on the Afternoon Drive on WSPD. One of my guests was Bradley Smith, Professor of Law at Capital University Law School. (complete pod cast)

He pointed out something I did not know and found very interesting.

He said that whomever President Obama nominates to replace retiring Associate Justice David Souter needs to have the support of at least one member of the minority party in order to be voted out of committee, under the current rules of the Senate.

Until this week, Pennsylvania Senator Arlen Specter could have been counted on as that vote, but he's now a Democrat. This means that Republicans on the Judiciary Committee can hold up a nominee if none of them vote in favor.

Of course, as Professor Smith points out, the Senate could also change the rules.

Stay tuned....

And there was great rejoicing!

NEWS ALERT
from The Wall Street Journal

June 26, 2008

The U.S. Supreme Court ruled Americans have a right to own guns for self-defense and hunting, the justices' first definitive pronouncement on gun rights in U.S. history. The court's 5-4 ruling strikes down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment.

The decision goes further than even the Bush administration wanted, but probably leaves most firearms laws intact.