Throughout the two-year history of the health care litigation, judges have mocked the Obama administration’s have-your-cake approach to the central question debated at the Supreme Court on Monday: whether the constitutional challenge is even ripe for judicial review before the law takes full effect in 2014. During the opening 90 minutes of oral argument, the justices found that they too could not resist…
In defending the law, the Justice Department has taken a legal position — that the health care act constitutes a tax — that contradicts the political stance taken by President Obama. To do that, it has relied on legal semantics to argue that the insurance mandate will be enforced through the tax code even though Congress took pains to label it a penalty and not a tax.
The reality is that the status of the health care mandate as a tax is the central issue all around, as I have noted previously:
It may seem like a semantic difference. But that semantic difference is what got the health care bill passed. Had its proponents–Obama and the Democrats in Congress–done the obvious and proposed a tax to pay for those who couldn’t afford health care, not even Nancy Pelosi could have gotten it through. (We’re already doing that with Medicaid, so that precedent is established). But instead they went the route of requiring people to purchase a product from a non-governmental source that they may or may not want. All the while they characterised the requirement as a “non-tax”. Now they have no right to complain when the courts call their bluff.
I’m not sure that the courts will, in the end, toss this thing out. Our judiciary has a strange way these days of not discerning where their values end and where the law starts. For people with substantial incomes, making others pay for anything might not seem much of a requirement. But how you see that depends upon what end of the economic spectrum you’re at.