Obamacare Decision

I’ve been thinking about the health care vote all day.  I’m already tired of it.  It is jumble of disparate thoughts, random musings, and attempts at understanding.  Sometimes I feel I have my arms around it, but usually not.

First, I do not agree with Obamacare.  I don’t agree with what it is, how it was passed, what is in it, or what it means.  I wanted Obama to lose, and the conservatives to win. But this is not a football game.  That being said, however, a Court does not decide if laws are stupid, well thought out, or will help or hurt society.  Many times Courts have said things similar to CJ Roberts comments that it is not the Court’s role to decide if law is “good”, but if it constitutional.  Whether a law is good is a political decision.  Unfortunately, the people voted for Obama and the democrats, who passed this monstrosity, got what they should have expected.  If they don’t like it, they can throw the bums out, as they did in 2010.

So where are we?  I long maintained that the mandate was unconstitutional, but the Court could hold the law constitutional if the mandate was a tax.  Do we tax people for “private matters”?  Certainly. We have social security and Medicare.  These are taxes that essentially transfer money from one group to another, from workers to the elderly or disabled, to pay health care premiums for Medicare recipients.  Obamacare could have taxed everyone for healthcare and given those with health insurance a credit for their premiums.  Does anyone think this would be unconstitutional?  Whether these taxes are good ideas is up to the voters.  It is long settled that these taxes are constitutional.

Does it matter that Obama said it is not a tax?  No!  What does the “I” stand for in SSI.  It stands for insurance, and Social security was sold to the public as “insurance” .  It is not.  It is a tax.  Sometimes these taxes are called contributions.  Your payments are not contributions, they are a tax.  Your SSI payments are taxes to support the elderly, because long ago our government decided, under the general welfare clause that the elderly needed support.  Could the government tax us if we don’t eat broccoli.  Of course they could.  They already tax us for not having solar panels, for not buying hybrid cares, or for any of the other amalgams of credits and deductions.  If the government wanted to tax us for drinking sugary sodas, or not eating broccoli, they could.  As long as the public lets them do this.

I have heard other arguments; taxes must start in the house, or the whether this is a direct or an indirect tax.  These are issues in Constitutional history that mean whatever the Court decides, from time to time, what they want it to be.

What puzzles me though is why.  Why did Roberts do this?  The Court has, over the last 220 years engaged in some Machiavellian behavior.  Marbury v. Madison is maybe the first example:  A Federalist Court ruled for the Jeffersonians, but surreptitiously increased Federalist power.  Roberts has long worried about the place of the Court in history.  He has been worried about the perceived political division of the Court.  Five Conservatives vs. four Liberals, voting along “party lines”.   Does Roberts want the Court to have respect as being above politics?  For a court to have any power it must have the support of the people and appear above the petty political fray.  Would Roberts sacrifice the Republican desire to throw out Obamacare, so as to give the court sanctity and respect?  Perhaps.  After all, if the citizens do not want Obamacare, vote out Obama and flip 4 senators, and it is gone.  After all, if Obamacare is such a bad, unpopular idea, why wouldn’t this happen.  For society to buy into the Court as the final decision maker, the Court should not be viewed as 9 senators with lifetime tenure.

If Roberts did this, what else did he do?  By characterizing the Mandate as a tax, it only takes 50 senators, plus the VP to throw it out.  This is much easier than the 60 votes to call up a vote.  Roberts also threw out the mandate, and makes it much more difficult for congress to use the commerce clause.  Then there is the 10th Amendment decision.  When I was in law school, 10th amendment arguments were considered wacky, beyond the normal constitutional thinking, and something for right wing non-lawyers to worry about.  We now have a good precedent on the 10th amendment.  We have all of this with the left, and probably some independents, believing in the fairness of the Court.

Frankly, if the voters do not get rid of Obama, we deserve Obamacare.  As to Roberts, leave him alone.  He did not do this for political correctness, or to curry favor with the NY Times.  Maybe we will just have to wait fifty years  to see what his decision has meant.

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