The Supreme Court’s taxing power

Last April, after multiple days of Supreme Court arguments in the Obamacare case, I wrote about the Obama administration’s incoherent defense of its signature legislation.

Obamacare, officially called the Patient Protection and Affordable Care Act, represents an extravagant exercise of federal power over the individual choices of every man, woman and child.

For the first time in the history of the Republic, federal law requires virtually every American citizen to purchase a product. Those who do not must pay money to the federal government.

Today, the mandatory product is health insurance. Tomorrow, look for purchase mandates for electronic cars, solar panels, soybean burgers, vegetables or whatever the nanny state wants you to do.

When the law forces law-abiding citizens to pay money to the government, we call the payment a tax. When citizens must pay money for violating the law, we call it a penalty or a fine.

Obamacare mandates a payment to the government by those who violate the requirement to buy health insurance. Is that a tax or a penalty?

“I can make a firm pledge,” Obama repeatedly and emphatically promised, “no family making less than $250,000 a year will see any form of tax increase.” Obama said his no-new-taxes guarantee encompassed all forms of taxation: “Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes.”

When the Obamacare bill gained momentum in Congress, observers noted that the law imposed a massive tax increase on the very people Obama promised not to tax.

Responding to this charge, Obama said that the mandatory payment is “absolutely not a tax increase.” He and the other proponents of the legislation, which squeaked through the House of Representatives by a margin of just seven votes, sold the law to the American people saying that it was not a tax.

Then, as I wrote in April, the Obama administration shamelessly argued that the Supreme Court needed to uphold Obamacare because it was a tax.

Got that? When you’re selling the law to the American people, it’s “absolutely” not a tax. When you’re selling the law to five unelected, life-tenured lawyers in robes — it’s most emphatically a tax. The people can have their tax and eat it too.

Court-watchers all thought the tax argument was a long shot.

For one thing, not a single lower court had found that the federal taxing power authorized Congress to impose Obamacare’s mandate for everyone to buy health insurance.

For another thing, federal law requires taxpayers to pay a tax before they can legally challenge it in court, and Obamacare’s purchase mandate does not kick in for another two years.

Plus, Obama and many others in the administration had said ad nauseam that the Obamacare payment is not a tax. You would think that federal officials who are taking money out of people’s pockets should own up to what they are doing.

No such luck. The administration and its lawyers had been reading their Emerson: “Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict everything you said today.”

That’s nice personal advice from a pep talk about self-reliance. But it leaves something to be desired when applied to a government of laws, and not of men.