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Friday, June 29, 2012

Obamacare- The Individual Mandate As A Tax Boxes Barack Obama In

By Susan Duclos

Barack Obama and Democrats were prepared for the Supreme Court to rule against the individual mandate, part of Obamacare, with whole campaigns based on using a 5-4 ruling against Obamacare to point to judicial activism, a campaign they started well before the actual decision came down. Capaigns based on energizing their base by claiming a ruling against the individual mandate was political and would show a need for more liberal judges, which of course, would only happen if Barack Obama was reelected.

The Supreme Court didn't strike down the individual mandate though, they upheld it, not under the first argument the Obama administration lawyers argued, Commerce Clause, and not under the second argument, Necessary and Proper Clause, but they upheld the individual mandate as a tax.

From the court opinion:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

Conservatives were right, the individual mandate as a penalty for not buying health insurance, under the Commerce Clause or the Necessary and Proper Clause was unconstitutional.

Obama, Democrats and his lawyers knew it, which is why Obama's lawyers also threw their third argument out there- that the penalty was, in reality, a tax.

That is the argument that allowed the Supreme Court to uphold the individual mandate.

That makes the individual mandate. now legally defined as a tax, the largest middle-class tax hike forced on Americans in history.

Daniel Epps over at The Atlantic explains how devastating that ruling truly is, not to conservatives, but to Barack Obama:

So the president was ready for the Court to break right or break left. But instead, Chief Justice Roberts juked. He agreed with the challengers that the mandate couldn't be justified under the Commerce Clause or even the Necessary and Proper Clause -- thereby reinforcing the narrative that the Democratic Congress overreached in passing the bill. His opinion -- though not the result -- may provide much help in the future to judicial conservatives, as it suggests that, with the dissent, five justices are in favor of a more aggressive role for the Court in policing the bounds of the Commerce Clause (and the Spending Clause, which was at issue in the Medicaid legislation). And while Roberts ultimately voted to uphold the Act, he did so on a ground that, for Obama, plays terribly: that it's a tax.

Now, much as Jefferson was two centuries ago, Obama is boxed in. What is he to do? He can't criticize the Court for judicial activism, as it upheld the law (putting aside the way the Court limited the Medicaid provisions, which are not particularly salient to voters). The decision undercuts a potential theme of his campaign -- that a conservative Court is out of control. And yet Obama can't trumpet the decision either, since it states that Democrats overreached in trying to justify the law under the Commerce Clause. Worse yet, it calls the mandate something that Democrats didn't want it to be: a tax.

Conversely, the decision may be the optimal result for Mitt Romney. If the Court had struck down the mandate, it would have taken off the table an issue that Republican base voters care tremendously about. But in upholding the law, the Court didn't just leave that issue on the table; it gave Romney tremendous ammunition he can use to criticize Obama as a tax raiser.
 Not only Mitt Romney, but as the RNC has already shown within 24 hours of this ruling, the campaign to make sure every voter in the country understands that Obama used the mandate to raise their taxes, with the first of many ads that will hammer the point home.


Out of all the hidden taxes written into the Obamacare bill, many of which do not go into effect until 2013, 2014, 2016 and 2018, this tax has been spotlighted to voters across the country because of the very public nature of the whole Obamacare battle.

Not only can Mitt Romney criticize Obama as a tax raiser, but can now honestly label him as the biggest tax raiser in history. Romney can also use obama's own words against him when, before Obamacare passed, Obama accused any detractors of lying, misrepresenting the "penalty" portion of the individual mandate as a tax.

[WATCH Obama deny that the individual mandate is a tax increase on all Americans back in 2009]

Conservatives are also energized to the point of donating over $4.3 million to Mitt Romney within 20 hours of the ruling being handed down.

Timothy Dalrymple over at Patheos looks at a few silver linings for Conservatives in the Supreme Court decision and number two is the one that Romney benefits from the most should American voters, who are still opposed to Obamacare as a whole, agree that Obama needs to be replaced in order to repeal Obamacare and that the U.S. Senate needs to flip four seats to give control to Republicans so that Obamacare can be repealed.

2. By placing the ACA under the umbrella of the tax power, Roberts may have made the ACA easier to overturn by several orders of magnitude. The ordinary process, of course, requires 60 votes to overcome a filibuster in the Senate. But when it concerns budgetary matters, including taxes (like the Bush tax cuts), 51 votes are sufficient to put the law on hold for 10 years. So, theoretically, 51 Republicans will be capable now of overturning the ACA at least for ten years (at which point it could be reviewed again). Fifty-one Republicans could have attempted this in any case, but now they can do so with much greater plausibility because this is a matter of taxing and spending and not regulation of commerce.

Liberal Reactions

To understand how potentially devastating it is for the Supreme Court to legally label the individual mandate as a tax, making it is the biggest tax hike on Americans in history, one only has to take a look at the reactions from far left Liberals, who by rights should be dancing in the streets that their precious individual mandate was upheld, but are instead beginning to understand the ramifications of the exact ruling.

Slate's headline perfectly captures the tone with "Obama Wins the Battle, Roberts Wins the War."

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well)

Ezra Klein, another far left Liberal, "The political genius of John Roberts"

The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”


By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.

But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.

Not only did the Supreme Court legally define the individual mandate as a tax but as Liberals are seeing now, the High Court also just struck a home run for Americans that favor constraining the powers of Congress under the Commerce and Necessary and Proper Clauses.

The Bottom Line

While Democrats and Obama were prepared for an all out campaign, which included an all out frontal assault on the Supreme Court, their weapons have just been disarmed.

Republicans, while not happy the individual mandate was not ruled unconstitutional have been handed more ammunition than they know what to do with.

The largest tax in history placed directly on Obama and Democrats' shoulders.

The Supreme Court rejecting the two main arguments against the individual mandate proving Republicans were correct in saying that under the Commerce Clause and the Necessary and Proper Clause the mandate would have been unconstitutional.

The resonating argument will be, with unemployment over 8 percent, the economy in the toilet and ordinary Americans barely making ends meet, did we need 20 new taxes, written within Obamacare, forced on us?

The biggest of which starts in 2014. triple by 2015 and double again by 2016:

17. Individual Mandate Excise Tax (Jan 2014): Starting in 2014, anyone not buying “qualifying” health insurance must pay an income surtax according to the higher of the following

1 Adult 2 Adults 3+ Adults
2014 1% AGI/$95 1% AGI/$190 1% AGI/$285
2015 2% AGI/$325 2% AGI/$650 2% AGI/$975
2016 + 2.5% AGI/$695 2.5% AGI/$1390 2.5% AGI/$2085