The recent U.S. Supreme Court decision narrowly upholding the most crucial feature of the Patient Protection and Affordable Care Act (“Obamacare”) disappoints many, but shouldn’t surprise serious court watchers.
In 1937 then President Franklin D. Roosevelt bluffed the Four Horsemen (Justices Sutherland, VanDevanter, Butler and McReynolds) into changing their votes away from constitutionalism toward supporting massive governmental intrusion into the marketplace. FDR accomplished this by threatening to “pack” (increase) the number of Supreme Court justices to form a majority with appointees supportive of his policies. The Four Horsemen caved and found the Commerce Clause authorized rulings in cases that upheld expansive governmental authority over many areas of commerce and most notably, agriculture and entitlements. Since that time, the Supreme Court has decided that many laws meet constitutional requirements that previously would have failed to do so.
Serious commentators question the reasoning of the Supreme Court in characterizing the health care act that requires all persons to purchase health insurance (the “mandate”) as a tax rather than the penalty (for failing to purchase) that it closely resembles.
No person yet has been taxed; accordingly the court had no basis for ruling on it as such, and under well established law a person must first be taxed, then fail to pay the tax before he or she could be either prosecuted or bring a taxpayer lawsuit against the government and argue the constitutionality of the tax. Thus the “taxation” issue was not ripe for adjudication by the court in deciding that failure to comply with the mandate results in a “tax” to be imposed.
Since the 1930s the court has contorted the meaning of the Commerce Clause of the Constitution and has upheld most congressional acts regulating aspects of almost all transaction, actual or possible.
For the Supreme Court to base it health care act ruling on the Commerce Clause would be less surprising than basing it upon a tax; either basis would be wrong.
The court could have simply declined to accept jurisdiction, but we would have continued uncertainty over its constitutionality. The court’s majority opinion confuses many and certainly further stains it reputation.
Atty. Carl D. Rafoth, Youngstown