SCOTUS on Obamacare: I Called It More Than Two Years Ago (and that should scare you)

DrRich | June 28th, 2012 - 11:07 am

Many readers (and you know who you are) think I am a complete dunderhead when it comes to interpreting Progressives and their healthcare system. But the real problem is that I am not a dunderhead, and as disturbing as it is even to myself, I have been right more times than not when it comes to predicting how things related to Progressive healthcare will turn out.

Believe me when I tell you that I wish this were not the case.

Today, the Supreme Court of the United States upheld Obamacare, or at least most of it, and they did so even while declaring an individual mandate based on the commerce clause to be unconstitutional. At the same time, they determined that the so-called individual mandate was, in fact, merely a tax, and they noted that the taxing power of Congress is essentially unlimited. So not only does Obamacare stand, but so does its funding mechanism.  It’s full steam ahead for Obamacare.

As humbly as I can, I remind readers skeptical of my ability to predict the future that, on March 25, 2010, a few short days after the Obamacare legislation was passed, I wrote a post that all but guaranteed that Obamacare would stand, and for this very reason. Specifically, I said that, viewed objectively, the individual mandate could easily be construed as a tax in everything but name. And, I asserted, the courts would find it to be a tax.

I am thus vindicated, though no less saddened, by today’s ruling.

I now reproduce the meat of that old but prescient post,  just to prove my point.  Read it and weep, skeptics.


From The Covert Rationing Blog, March 25, 2010:
“For those among his readers who do not want any constitutional challenge of the new healthcare law to succeed, DrRich has good news. It won’t.

DrRich has come to this conclusion after reading the section of the law that deals with the individual mandate. This section, “Subtitle F – Shared Responsibility For Health Care,” is carefully designed to defeat any constitutional challenge.

The meat of Subtitle F is contained in one sentence (Section 5000A), to wit: “An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” This sentence takes up about 20% of one page. Most of the remaining 42.8 pages of Subtitle F creates a protective shell against constitutional challenge. It does this in two ways.

The first protection against a constitutional challenge is the more obvious. In fact, before we ever get to the individual mandate itself, we are treated to five pages that detail the multitude of ways in which “individual responsibility” in healthcare (i.e., the mandate to buy insurance) “is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” In other words, the individual mandate is wrapped by a formal “finding of Congress” that this mandate is subject to the Commerce Clause of the U.S. Constitution.

DrRich is not enough of a legal scholar to understand whether the five pages of justification that follow (the “paragraph 2,” referred to above) are sufficiently compelling to actually invoke the Commerce Clause. To him, it all sounds like an “ends justifies the means” argument, one that would be equally applicable if Congress decided it would benefit the general welfare to mandate that people purchase all their cars from Government Motors. But whether or not the supportive language itself proves compelling to the courts, it seems very unlikely to DrRich that the Supreme Court would overturn a formal “finding of Congress,” as regards the applicability of a provision of Congress to the Commerce Clause.

But this first protection against a constitutional challenge only covers the first five of the 43 pages of Subtitle F. Most of the remaining 38 pages establishes the second protection. This one is more subtle than the first, but, DrRich thinks, it will be the more difficult one to overcome.

That remaining portion of Subtitle F deals largely with the penalties to which individuals would be subject if they failed to comply with the mandate to buy health insurance. It describes in detail how the mandate is to be complied with, how compliance is to be documented, and how the mandate is to be enforced. This long section of Subtitle F reads like tax law, like IRS code. As well it should. For, what it establishes is that the individual mandate is actually a tax, that is treated like any other tax in its documentation, collection, and enforcement, and indeed, that the IRS will be running the whole show.

If DrRich were defending the individual mandate before the Supreme Court, here is what he would say:

“Your Honors (and you other Justices, too), even if you find that the Commerce Clause is not applicable here (a finding, I respectfully submit, which would create a Constitutional crisis, since Congress has issued its own formal finding to the contrary), you must let this provision stand for an even more compelling reason, which is: This is not really an individual mandate to purchase health insurance or any other product, as our opponents claim. It is, in fact, simply a tax, like any other tax.

It is a tax. A healthcare tax. It is a tax to support healthcare in the United States, payable to the U.S. Government on Form 1040, administered and collected entirely by the Internal Revenue Service. It is not in any way fundamentally different from the Medicare and Medicaid taxes, which also support healthcare services for our citizens, which also appear on Form 1040, and which are also administered and collected entirely by the IRS.

Your Honors, simply look at the language of Subtitle F. After a modest amount of palaver to convince Your Honors that the Commerce Clause applies (and, I remind you, it does), the last 38 pages of this Subtitle is tax law. I mean, really, just try to read it. Can any of you understand it? Neither can I. It’s IRS tax code, plain and simple.

The only difference between this tax and any other federal tax is that Congress, in its wisdom and magnanimity, gives the individual citizen the ability to opt out, to not have to pay it, simply by documenting that they have purchased health insurance. That is, if the citizen chooses to buy health insurance – which, we must all admit, would be a wise decision from that individual’s point of view, as well as a benefit to society – the IRS will forgive the new healthcare tax altogether.

Where is the mandate here? Nowhere in Subtitle F does the word “mandate” appear. Rather, Subtitle F refers to “shared responsibility.” Individuals should feel responsible to do their part for society as a whole, and this Subtitle encourages them to act on that responsibility. They can do so by paying the new healthcare tax. Or, if they choose, they can do so by making sure they and their families are covered by health insurance. To be sure, Congress’ intent was that the large majority of citizens would choose the latter. But for all that, it is in the end the individual’s choice.”

As much as DrRich wishes otherwise, the individual mandate in the new healthcare law has been written in such a way as to almost certainly turn aside any challenges based on its constitutionality.

And now, dear reader, it is time to ask yourself, “What else is he right about?

5 Responses to “SCOTUS on Obamacare: I Called It More Than Two Years Ago (and that should scare you)”

  1. Good call. It is just as depressing although the decision to limit the Commerce Clause may be helpful in other ways. Ot doesn’t help us. Thank God I am no longer trying to practice in this climate.

  2. James Gaulte says:

    In answer to your closing question-I am very afraid you are right about a hell of a lot.


  3. Being a dunderhead myself, I do not understand why Congress cannot now pass laws to encourage all sorts of socially responsible behavior under its power to tax. For example. perhaps to support the taxpayers’ investment General Motors, all adults of driving age should be taxed if they do not own a Chevy Volt. The obese might be taxed (presumably by the pound) if they fail to fall within specific “healthy weight” guidelines, or at least if they do not purchase a DVDs in the “Brazilian Butt Lift” series. In fact, why did our elected representatives not think of this brilliant and creative approach to social engineering previously?

  4. Tamzin Rosenwasser says:

    Hi Dr Rich, and Hi Doug,
    The Obamacare stuff is unConstitutional simply because medical care is not an enumerated power. There is nothing anyplace in the Constitution allowing the feds to involve themselves in anything so personal as a citizen’s medical care.

    The only positive thing I can say is that I’m glad those airheads didn’t go to medical school, or we would already be in our graves.

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