Quack, Quack Mr. President

It seems that no one is really happy with the Supreme Court’s health care ruling.  As Louis Tiemann’s excellent comment to my last post reminds me, court decisions that are politically crafted to appease contending parties often make bad case law. In this instance, as Louis points out, Chief Justice Roberts’ efforts to maintain the individual mandate – but not under the pretense that it is interstate commerce – may have opened up a different can of worms regarding the extent of Congress’ taxing authority.

For political reasons, of course, the Obama administration has always insisted that the health care penalty is not a tax.  Here’s the President in 2009, strenuously denying George Stephanopoulos’ attempts to equate the penalty with a tax:

[youtube  /watch?v=rL7ak__MGyw&feature=player_detailpage]

Despite Boy George’s quoting from the Merriam dictionary to determine the definition of a tax, the President was adamant that the penalty is not a tax: “For us to say that you have to get health insurance is absolutely not a tax increase….You can’t just make up that language and decide that’s called a tax increase!”  And later:  “I absolutely reject that notion [that the penalty is a tax increase]”  Alas, the President’s words were lost on Chief Justice John Roberts and the Supreme Court’s four liberals.  The reality is that because the Supreme Court holds that it is a tax – which Chief Justice Roberts just did – then, legally speaking, the penalty is now a tax.

And yet, the White House continues to argue otherwise! Despite the fact that by calling the penalty a tax, Roberts was able to justify the individual mandate (and with it the perception that the Court is a neutral umpire), White House officials yesterday insisted that the penalty is in fact not a tax.  In this respect, they are siding with the Court’s conservative wing.  In the morning press gaggle, White House press secretary Jay Carney made it clear that the White House would try to distance itself from Roberts’ interpretation of the individual mandate penalty:

MR. CARNEY:  It’s a penalty because you have a choice.  You don’t have a choice to pay your taxes, right?  You have a choice to buy — if you can afford health insurance — and you can, I assume, Jared.  So if you don’t buy it, and you can afford it, it is an irresponsible thing to do to ask the rest of America’s  taxpayers to pay for your care when you go to the emergency room.  So your choice is to purchase health care reform or a penalty will be administered.”

The same argument is being made by Obama’s campaign surrogates, such as Massachusetts’  Governor Deval Patrick, who in a conference call organized by the Obama campaign on Friday  insisted that the penalty is not a tax.  Clearly the Obama campaign is worried that the Republicans  will use the Roberts Court’s ruling as a means to define the Affordable Care Act  as a tax increase. The problem for Republicans, of course, is that as governor of Massachusetts Romney signed into law a law that included a similar provision.  As this Wall Street Journal  article points out “While Republicans wanted the law struck down, they’ve used the court’s legal reasoning to argue that Mr. Obama now is responsible for a huge tax increase. But Mr. Romney approved a near-identical requirement for Massachusetts when he was governor that has since brought in millions in fees, penalties or, as Mr. Roberts would suggest, taxes. The law was signed in April 2006; Mr. Romney left office at the start of 2007, and the requirement to have insurance went into effect Dec. 31, 2007.”

Meanwhile, the public has had a decidedly mixed reaction to the Court’s decision as well. As this Gallup poll shows, there’s a clear partisan divide among Americans, with most Democrats applauding the Court’s ruling, most Republicans opposing it and independents about evenly divided.

So, it appears that neither Obama nor Romney is thrilled by how the Chief Justice sought to thread the needle in a way that protected the Court’s reputation as a non-partisan political actor. Nor, for that matter, is the public.  For all these reasons, I think health care will play a minor role in this fall’s presidential election in large part because opinions regarding the health care law are already baked in, and because economic issues are of far greater concern to most voters. It may energize activists on both sides (already Romney has raised several millions dollars in the aftermath of the Court’s ruling), but it isn’t going to switch many votes.  And money is not going to be the deciding factor in this race.

The bigger impact may occur, as Louis suggests, down the road, as the Court deals with the legal fallout from Roberts’ effort to differentiate a tax from a penalty, as well as from the more restricted interpretation of the interstate commerce clause.  In the meantime, the Affordable Care Act survives thanks to Roberts rejecting the President’s claim that the penalty is really just a penalty.  Quack, quack, Mr. President!  Quack, quack!




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