In an interview with ABC’s George Stephanopoulos in 2009, when the president was attempting to sell the law to the public, Obama was adamant that the penalty for failing to buy insurance was not a tax.
“I absolutely reject that notion,” Obama said under repeated questioning by Stephanopoulos. “For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” Obama said. “You can’t just make up that language and decide that that’s called a tax increase.”
Obama was desperate not to have the penalty termed a tax because if it were, it would clearly violate his pledge not to raise taxes on the middle class.
And yet after the law was signed, in a cynical slight of hand, Obama’s lawyers argued to the Supreme Court – and before it got there, in the lower courts – that the penalty in fact was a tax.
They did this because once the law was passed, the legal considerations trumped the political. Having the penalty qualify as a tax would make it immune to legal challenge, since Congress has an undisputed Constitutional right to tax.
And that’s exactly the argument that the Supreme Court accepted.
Once again, enormous disclaimer that I am not an attorney – much less a constitutional scholar. That being said, however … from what I am reading, Roberts said that IF the law is a tax on INACTIVITY (not purchasing health care) – then it is constitutional. So – call me crazy – but it seems to me that if the Obama administration (and any other Dems that care to tag along) continue to refer to it as a “mandate” and deny that it’s a tax – then THAT creature IS unconstitutional.
I must be wrong; someone help me out here…..
And – one more thought. I did think that Obamacare said you could fail to purchase insurance and pay the tax penalty instead. IF this is accurate and IF it is also correct that we cannot be denied insurance for a pre-existing condition…….. can someone please explain to me why anyone will buy “insurance” prior to it being medically and financially necessary? I am paying close to $20K a year for insurance for 2 people. The tax would be roughly $4K. Aren’t I a whole lot better off just paying the penalty……. but if I do this – and everyone else with half a brain does – then won’t the whole thing collapse?
Again – help help help all you medical and constitutional scholars!!
A lot of lawyers think Roberts got it wrong.
What I don’t understand is it was argued for under the commerce clause and the necessary and proper clause by those supporting the legislation, yet the court goes with the taxing authority to uphold it. I always thought you were stuck with the argument you brought to the court.
Daniel, I read somewhere that the attorneys actually are allowed to present different, almost competing, arguments. In other words, they can argue that it is not a tax, so it should be allowed to live under x,y,z arguments…BUT – if you don’t like THAT version, then we have a new and improved it IS a tax argument.
And – the Court bought Door #2.
Peg, one of the first things taught in law school is pleading in the alternative. The example I remember is the answer to the assertion,
“You borrowed my vase and you broke it”. To be met with,
“I never borrowed your vase”,
“It was fine when I gave it back” and
“It was broken when you loaned it to me”.
It seems liberals never answer the question, period. They ask Pooping Bear (Elizabeth Warren) “are you an Indian?” She answers: “what the people of Massachusetts want to talk about is the price of condoms at Walgreens.” Say what???
The ironic thing is that a lower court had argued that the “Anti-Injunction Act” of 1867 barred the court from even hearing a tax case until the tax had actually been levied. This is why the Solicitor General had argued against the ACA penalties being a “tax”. As Chris mentioned above, good lawyering involves a series of alternative theories, and Roberts latched upon the one that suited his opinion, ironically the one which opens the ACA up for a challenge in 2014 in its “tax” guise. This legal morass has just begun, even if it appears that Obamacare, or some better variant like single-payer, is here to stay
So the law professor in chief gets an “F”. (BTW will we ever see his Harvard Transcripts?) Congratulations to the Democrats & Obama on their new middle class tax increase. Read my lips, No New Taxes On the Middle Class…. Romney commercial airing soon!
oG17, except that Romney also raised middle class taxesin Mass., proudly said it should be an example for a national plan, and recently said that he thinks “middle class taxes” are good. Moron