Thursday’s surprise ruling by the Supreme Court on the Affordable Care Act stirred shock and aware from observers, so much so that CNN apparently couldn’t be bothered to check its facts before reporting the individual mandate had been struck down.
It hadn’t and the law known as ObamaCare was upheld in full with the exception of onerous requirements on states for expanding Medicaid.
Legally, the argument made by Chief Justice John Roberts – an appointee of President George W. Bush who, ironically, then-Senator Obama voted not to approve – was importantly different than the rest of the majority decision.
Throughout this debate, the Commerce Clause has been the lynch-pin constitutional authority under which, supporters argued, the ACA was legally sound.
President Obama himself argued as much.
Justice Roberts, however, looked to Congress’ constitutional power to levy taxes as the constitutional justification for ACA.
In some ways, it’s hard to understand why this hadn’t been brought up before because the reasoning is so intuitive.
If Congress can’t impose a fine on those who choose not to buy health insurance, then you don’t have an individual mandate you have a suggestion. It’s a guideline at best.
What the government has always had to prove is whether or not you can tax someone for behavior in an economic marketplace.
But the government already does this, only we call it tax breaks.
In this case, government offers lower taxes in exchange for certain perceived economic incentives. For instance, if a company re-invests in domestic labor, it gets a tax break.
Many states have similar tax laws.
This is the first time, however, we’ve seen the tax law applied this way and the ramifications are ominous.
Much as was the case if the Commerce Clause had been the reason ObamaCare were upheld, granting Congress the power to coerce our behavior via taxes creates a slippery slope.
What kind of behavior is taxable? What isn’t?
What kind of behavior serves the common good? To what degree ought we be taxed for failing to act in a certain way?
These are all questions the Supreme Court has now created as a result of this ruling, no matter what clause of the constitution you want to point to.
What the Supreme Court did find is something we’ve known all along and that this is really a new tax. A health insurance tax.
If you don’t buy in, you’re going t0 be taxed. Oh, and we’re going to tax the bejesus out of you to pay for it, since those sustainability claims where Obama said this will pay for itself were based on 6 years of cost projections and 10 years of revenue projections.
This is a trillion dollar new system where costs for everyone go up. That’s the point. That’s what pooling risk means and it’s not dissimilar from a socialistic system of governance, only applied to an economic sector that makes up almost 20% of our GDP.
To be sure, the consumer protection part of the ACA provides myriad new measures for people who have struggled to get by with our current system.
Minimize costs for preventative care, no rejection for pre-existing conditions, low-cost women’s health care, these are all provisions to support.
A massive overhaul, paid for by unsustainable mechanisms, replete with a new tax on middle class families who won’t qualify for subsidies or Medicaid isn’t the kind of solution we ought to be looking for in order to fix our system.
The Supreme Court said as much when it failed to endorse the ACA in the majority opinion, choosing rather to simply state it was a constitutional act.
And unfortunately, they’re probably right.
Justice, in the way the law out to be applied, prevailed over political motivations. But is the outcome just? It seems hard to argue that it is given the dire consequences for the rest of us who will see higher health care costs and higher taxes.
In fact, with Medicare and Medicaid already in serious jeopardy, it’s likely the entire health care system will have to be doubly overhauled in the next 20 years, particularly given the non-sustainability of ObamaCare and its long tentacles of rising costs.