The ObamaCare Decision: When is a Silver Lining Not Really a Silver Lining?

A lot of folks on the right throughout New Media and Old Media seem to have found a silver lining within today’s ultimately disappointing decision on ObamaCare from the United States Supreme Court.  I don’t see it that way.

In case you were unconscious since this morning, or somehow managed to avoid any telephone, television, radio, computer or other person, Chief Justice John Roberts joined the liberal wing of the Supreme Court and upheld the Affordable Care Act by deeming the individual mandate a “tax” that would fall squarely under the taxation power enjoyed by the federal government pursuant to the United States Constitution.  Roberts did this over the dissent of Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy.  Kennedy, traditionally the Court’s “swing” voter, actually came down in favor of striking down the law altogether.

Some on the right are rationalizing today’s disappointing decision by stating that the mandate’s classification as a “tax” devastates Barack Obama politically, and provides Republicans with a legislative mechanism through which they can do away with the mandate.  Insofar as that short-term-political-gain argument is concerned, it stems from the fact that the Obama administration clearly went out of its way to not only say that it would not raise taxes on Americans making less than $250,000 per year, but that on myriad occasions the administration came out and specifically said that ObamaCare–and specifically the individual mandate–was not a tax.

The acting director of the Office of Management and Budget said it wasn’t a tax.

The Secretary of Health and Human Services, Kathleen Sebelius, said it wasn’t a tax.

Even the president himself came out and stated that the individual mandate was not a tax.

In his dissent, Justice Scalia even pointed out that a previous version of the Affordable Care Act was rejected because it deemed the individual mandate to be a tax, and the Democrats did not believe that a new tax could pass.  Framing the health care law as a new tax was a death knell for the legislation.

And therein lies the rub when it comes to that so-called “silver lining” — that somehow, despite the loss at the Supreme Court, that loss forces the president to acknowledge that he has indeed raised taxes on the American public, and that he may have been misleading America the entire time, and that an electorate that has been partially averse to accountability will somehow now be ready to hold the president and his administration accountable.

I.M. Citizen–a pretty cool pseudonym, if you ask me–over at White House 2012 wrote, in a piece entitled Chief Justice Roberts is a Genius, that Roberts switched ideological sides (and likely at the last minute, as the close inspection of Scalia’s dissent shows that he refers to the eventual majority decision as the “dissent,” meaning that the dissent was at one time likely the majority) because he wanted to encumber Barack Obama and the Democrats politically by officially deeming the individual mandate at the heart of ObamaCare a tax.

Next, he stated that, because Congress doesn’t have the ability to mandate, it must, to fund Obama-care, rely on its power to tax. Therefore, the mechanism that funds Obama-care is a tax. This is also critical. Recall back during the initial Obama-care battles, the Democrats called it a penalty, Republicans called it a tax. Democrats consistently soft sold it as a penalty. It went to vote as a penalty. Obama declared endlessly, that it was not a tax, it was a penalty. But when the Democrats argued in front of the Supreme Court, they said ‘hey, a penalty or a tax, either way’. So, Roberts gave them a tax. It is now the official law of the land — beyond word-play and silly shenanigans. Obama-care is funded by tax dollars. Democrats now must defend a tax increase to justify the Obama-care law.

I don’t think that ObamaCare passing constitutional muster due to its status as a tax is such a silver lining after all.

Does it make things more difficult, politically speaking, for President Obama as election day nears?  Absolutely.  Surely the disappointing result, upholding an inherently unpopular law, has once again galvanized the Tea Party-centered opposition to Barack Obama’s candidacy.  Mitt Romney’s campaign reported receiving “millions” in donations following the ruling.  This has certainly steeled the resolve of those on the right, and much like the Japanese at Pearl Harbor, I believe that the left–with John Roberts’ help–has awakened a largely sleeping giant.

Does classifying the individual mandate as a tax mean that the effects will be easier to mitigate? You bet. In fact, any tax may be rescinded through a simple majority, a 51-person vote in the United States Senate.  We’re close to that now, and after November we’ll likely be closer, and it could very well be that the same mandate that was born from nuanced legislative mechanisms like “deem-and-pass” and reconciliation will die through the very same mechanisms.

Still, the fact remains that elections come and go and health care laws can be repealed, but the aftereffects of this decision will affect our constitutional jurisprudence for years to come.  While the Supreme Court–including Justice Elena Kagan–held in today’s decision that the Commerce Clause is not a blank check providing for the limitless expansion of government power, what they essentially did was place limits on the federal government’s Commerce power while simultaneously removing limits from the government’s taxation power.

In his 1825 Declaration and Protest of Virginia, Thomas Jefferson cautioned that “[t]he greatest [calamity] which could befall [this nation would be] submission to a government of unlimited powers.”  Today, the Supreme Court did just that — the Court may have refused to deem ObamaCare constitutional under the Commerce Clause, but it did so pursuant to the government’s taxation power.  I see little difference in tightening one traditional perversion of our Founders’ intent while ripping open another.

In Wickard v. Filburn, 311 U.S. 111 (1942), the United States Supreme Court greatly expanded the scope of the Commerce Clause and, in doing so, held that the federal government could regulate the production of wheat, even if that wheat was grown and produced for personal use by the farmer and never placed in the stream of interstate commerce.  What I fear is that, for generations to come, today’s ObamaCare decision will do for the federal government’s taxation power what Wickard v. Filburn did for the Commerce Clause.  The left already has the General Welfare Clause, the Necessary and Proper Clause, and the Commerce Clause to pervert and misinterpret as they see fit and feel necessary to justify intrusive legislation and regulation — no amount of short-term political gain or legislative loopholes will make up for the fact that today’s decision provided our lawmakers with yet another provision of our Constitution to pervert and use as a blank check for expanding the size, scope, reach and role of the federal government.

With ObamaCare and the individual mandate being deemed a tax, what we have here is a tax by default.  You and I are being taxed for merely drawing breath, and if we want to avoid paying that tax, we either have to (a) die or (b) purchase something that the federal government feels is good for us all.

What if, down the road, the federal government feels the same way about electric cars as it does about health insurance?  Could the federal government write legislation that forces us to purchase an electric car?  Yes, and as of today, it would be constitutional.  After all, so long as those of us who do not wish to roast marshmallows during our morning commute in a fiery Chevy Volt are forced to pay the same sort of tax penalty as those who wish to refuse to buy health insurance until they fall ill, that legislation would fall squarely under the new-found limitless powers of taxation.

The same could be said for our thermostat, if those of us who wish to keep that thermostat below 72 degrees would be taxed for doing so.  The same could be said for junk food, if those of us who make certain choices at dinnertime are taxed for doing so.  The same could be said for even something as extreme as China’s one-child policy.


Suspend disbelief for a moment, and consider how many environmentalist whackjobs consider population control as a mechanism by which we can slow down the farce that is global warming and stem the purportedly rising sea levels.  Let’s say for a moment that Barack Obama is re-elected in the fall and, as a lame duck president, he decides to listen to the dangerously green crowd and push for one-child legislation.  So long as the legislation is written in a manner that provides that those people who have more than one child are taxed for doing so, that legislation would pass constitutional muster pursuant to the same logical conclusions used in today’s decision.

The possibilities are endless, and as much as I hate making that “slippery slope” argument, we’re looking at one of Himalayan proportions.  So long as a tax is levied, Congress now has the authority to force us to purchase something we may not wish to purchase, behave in a way that we may not wish to behave, or enlist services that we may not wish to enlist.  In America, it is the people who should dictate purchases made and actions undertaken by government; not the other way around.  That’s what the damned American Revolution was all about.  And yet today, America did exactly what Jefferson warned against and submitted to a government of unlimited powers.

I don’t consider any of it a silver lining at all.  Any good that comes from limitations placed on the Commerce Clause, or from the legislative options available to deal with a tax versus a penalty, or even from the renewed Tea Party vigor we’ll undoubtedly see prior to the election, is exponentially outweighed by the Court’s insistence upon providing the progressive left with yet again another mechanism through which they may be able to slowly chip away at our liberty.




  1. nanas3 says:

    I agree, Jeff, although I would be ecstatic to think a Conservative outwitted the dimwits, but, I don’t see it. Roberts dropped the ball even if he was trying to hang this around Obama’s neck as a TAX! The question is WHY would he change his mind at the last minute if indeed he was on the side of the majority who felt the whole thing should have been thrown out? Was he threatened? I do feel that there is a chance that this will galvanize Conservatives as we realize only WE, THE PEOPLE can stop this in November! Romney has received a tremendous increase in donations and I hope that he will be capable of leading a formidable, concise opposition to Obama. If we don’t have enough ammunition by now, we never will. Yesterday should inspire more DETERMINATION in all of us, not despair, anger or bitterness. We are about to celebrate our INDEPENDENCE and we must reaffirm our INDEPENDENCE from any oppressive government that seeks to iimit our freedom!

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  3. sharon says:

    My husband warned me on Wed. night before going to bed that it was not a good idea to have a positive feeling on the ruling the next morning. He went to bed on Wed. convinced the law would be deemed constitutional. The fight is for the long term, the Supreme Court has given us such rulings as abortion that we have never been able to over turn. The GOP have failed us miserably, and not for the first time. They were given a mandate in 2010 and the mandate was in response to Obamacare and government over reach.

    The party not in control should have kept this in the forefront every week to garner democrat support. It was what the people wanted. The stupid party allowed the court to decide.

    The ball has always been in our court and we lob it accordingly, each and every time. The powers that be do not listen to our voice. This election cycle is a very dangerous game. Obama ONLY has to win this election by any means possible, including fraud. We have to spread the word and get people registered to vote that use their freedom of choice not to. 2008 was the most important election of our lifetime and the marxist won. We have to get him out of office and put Romney on the back burner for now. I know there was fraud in 2008, I saw it with my own eyes at my very own polling station. My complaint with the city was never acknowledged. This next cycle is a very dangerous game indeed. A big thank you to Mr. Roberts for dropping the ball.

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