Your Humble Narrator is not a fan of the Patient Protection and Affordable Care Act (PPACA), a.k.a. ObamaCare, or of the decision in NFIB v. Sebelius, which upheld almost all of the PPACA. Here are some of my thoughts on the decision, taken from scribblings in the margins of notebooks at last week’s conference, on the backs of receipts stuffed in my wallet, and on napkins stuffed in my pockets:
1. Back in an aught-nine interview of President Obama, George Stephanopoulos argued that the individual mandate was a tax, going so far as to back up his claim with the dictionary definition of “tax”. Obama argued that it wasn’t a tax, and that “look[ing] up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now.”
In the decision that upheld ObamaCare last week, a five-justice majority ruled that the individual mandate is a tax (so that it could be upheld under the Taxation Clause) and is not a tax (so that the case wasn’t put off until 2014 and so that Obama didn’t look like he was raising taxes). I await the President’s opinion on whether the Court’s logic constitutes a “stretch.”
2. Under the PPACA, the feds could punish states that don’t participate in the new Medicaid expansion by taking away all their Medicaid funds. The Court ruled this part of the PPACA to be unconstitutionally coercive. But if the Court just upheld the taxation of being non-insured, then surely Congress can conjure up some creative tax legislation to punish those states anyway. You don’t want to expand Medicaid the way we want? Fine. We’ll just tax the end users of your Medicaid funds at 100%.
3. The strongest, most cogent argument the Administration could have offered in defense of ObamaCare was: “Look at everything else we already do! Look at Social Security, Medicare, Medicaid, NCLB, corporate subsidies, welfare programs– and you’re gonna tell me that this bill crosses the line? There is no line.”
(It works better if you imagine it coming from Alec Baldwin in Glengarry Glen Ross mode. Great scene.)
I’ll grant that I expected the individual mandate to be struck down 5-4, if nothing else was. But seriously, considering everything the government already does, how can we say anything’s off limits, or reserved to the states? The Tenth Amendment has been nothing more than a sprig of parsley for decades; the same’s been true of strict construction for even longer. So if you want these federal programs reformed, eliminated, or devolved to the states, you’ll have to do it the hard way: through the elected branches, because the Court won’t do it for you.
4. This ruling might not be such a big deal. We’ve already established that the President can ignore policies he deems unconstitutional, can unilaterally create policies that he thinks “America can’t wait for,” and can even grant waivers from his own pet policies. At this point, what would stop a President Johnson or a President Romney from granting everyone a waiver?
5. I think the Broccoli Complaint (i.e., “Now that we have ObamaCare, the government can force you to buy anything!”) rings hollow with the supporters of ObamaCare. Whatever complaints Obama has about his opponents, he probably isn’t afraid that they’re going to make him buy anything. Seriously, what are the conservatives or the libertarians going to make you buy, and tax you if you don’t?
6. An awful lot of folks are mad at Chief Justice John Roberts because of his vote on the individual mandate, because he appears to have switched his vote, and because he appears to have bowed to political pressure. I get that. But I find it interesting that virtually none of the anti-ObamaCare ire is directed at Justices Ginsburg, Breyer, Sotomayor, or Kagan. Didn’t they vote wrong, too? I know that the Roberts vote is far more disappointing because he was expected to strike down the mandate, and that it’s human nature to be angrier at those who disappoint us than at those we expected to screw up in the first place, but he was only one of five justices to go along with the “tax and not a tax” convolution. And those other four considered non-commerce (not buying insurance) to be just as subject to regulation as commerce (buying insurance). Why not call them out on it publicly?
7. I took this quiz, offered by the Henry J. Kaiser Family Foundation, which is pro-ObamaCare, to see whether I knew “the real facts” about ObamaCare. I got all ten right, “better than 99.6% of Americans.” Am I supposed to love the bill now? Or can I reasonably expect the proponents of the bill to listen when I say that the costs will far and away exceed the benefits?