Forum Right, 7/3

Sometimes the Law is an Ass

By David H. Landon

In Charles Dickens’ classic tale, Oliver Twist, Mr. Bumble is the pompous, self-aggrandizing church official who supervises the workhouse into which Oliver is born. Upon being informed that the law “supposes that your wife acts under your direction,” Bumble responds with a comment for the ages. “If the law supposes that … the law is an ass.”   That comment pretty well sums up my initial reaction to the Supreme Court decision which found the intrusive and destructive law know as Obamacare to be constitutional. If the law allows the federal government to tell me what I must purchase or face paying a tax for my non-compliance, ladies and gentlemen, the law is an ass.

Much to the surprise of just about everyone, Chief Justice Roberts found a way to cobble together a majority with the four liberal members of the bench in order to find that the major legislative achievement of Obama’s first term, that being Obamacare, is constitutional. But the CJ managed to reach the majority decision in a most ironic way. For months during and after the legislative process, the administration and the Democratic legislative leaders argued that the funding of the “individual mandate” which required everyone to purchase health insurance of face a “penalty” was a reasonable extension of the commerce clause and as such was constitutional. They specifically argued that it was not a tax on the American people. Our constitutional-law-professor- turned-President guaranteed us that this exercise of Congressional authority under the commerce clause was constitutional.  Well, not according to the ruling handed down by the Supremes. It is a tax.

Let me lay out the Government’s argument to the Court: John Doe has decided to not purchase health insurance. Why?  Maybe he’s young and wants to spend his resources on other priorities. Maybe he feels he can’t afford healthcare at this time. It doesn’t matter why as the Government argues he could potentially be a burden to the Government if he got sick. Although Mr. Doe has not purchased insurance and has not under any reasonable definition of the phrase, “entered into commerce,” our President and Democratic Congress compel him under the threat of a financial penalty enforced by the IRS, to buy health insurance. They argue that they are regulating commerce. Those attorneys general who argued against this expansion of the commerce clause asked: if government can do that under the commerce clause, what can it not do?

So, how in the world did my conservative judicial hero, Chief Justice John Roberts, reach the conclusion that Obamacare was constitutional? The Chief Justice adopted the view that before a court overturns a statute as unconstitutional; it must search out every reasonable interpretation of the statutory language to determine whether the statute can be saved. In Roberts view, this approach guards against a “judicial activism” in which judges are too eager to create law which overrides the will of popularly elected branches of the government. Here comes the part that sucks.  Even though Obama and company did everything possible to disguise the penalty as anything other than a tax, during oral arguments the Justices dragged out of the Government’s attorneys that the mandate could possibly be viewed as a tax. Bingo.  The Supreme Court had its narrow escape hatch whereby it could save the statute by finding the mandate to be what it really has been all along … a tax!

And this is not just any tax. No … Obamacare will be the largest tax increase in the history of the world. Yes … Obamacare is constitutional. However it is now officially a tax.  And there’s no getting away from it no matter how the administration attempts to spin it as something else. The tax starts slowly but then gains pocket share rapidly.  In 2014 the penalty will be $95 for individuals.  By 2016 it will soar to $695 for individuals and $2000 for families. It will continue to increase as costs continue to increase.  In November, Democrats will have to defend a tax increase to justify the Obamacare. This tax primarily will be on the backs of middle-class Americans who can least afford it.

After reading the decision again, I’m back on the Roberts bandwagon. It’s not the job of the court to consider whether this Act or any act embodies sound policies. Roberts argued, and rightly so, “That judgment is entrusted to the nation’s elected leaders.  We ask only whether Congress has the power under the Constitution to enact the challenged provisions. … It is not our job to protect the people from the consequences of their political choices.” The CJ is a strict constructionist and this decision is consistent with curtailing judicial activism.

What’s the bottom line politically? Under Obamacare, Americans are being forced to purchase health insurance. They will be taxed if they don’t. To enforce the new law, 16,500 new IRS agents are being hired to make sure they pay that tax. This is a political argument that Republicans can sell.

The decision by the Court has made the issue crystal clear for all who oppose Obamacare and the unbridled and unfettered growth of the federal government. Elections have consequences. To overturn Obamacare we need to elect a new President and a new Senate in November.  The Chief Justice has probably done us a huge favor.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at DaveLandon@DaytonCityPaper.com.

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