ObamaCare: A Tax is a tax - is a Tax - is a Tax - Except when it's a Penalty

The Republican right wing Chief Justice of the Supreme Court of the United States has thrown a curve ball into the national confusion over the Affordable Care Act (known popularly as Obamacare.)  The SCOTUS determines the constitutionality of federal laws ever since when Thomas Jefferson and the Democratic Republicans defeated the Federalist property owner regime (an alliance of southern planters/merchants and northern bankers) the Supreme Court responded by the chief  judge, a long-time political rival of President Jefferson, asserting the right of the Court to declare laws unconstitutional - he had to use a footnote in a case to declare it - but nevertheless it stuck.

Unlike the US Senate it takes a majority of the Supreme Court to make a decision. So as expected, the four Democrat justices ruled that the law was constitutional under the federal constitution's commerce clause and the necessary and proper clause.  Four Republican justices voted to throw the whole law out and declare it unconstitutional.  Along comes Judge Roberts,  he decides to vote with the four Democrats and he gets to write the decision and say why - so he declares the Republicans are right this law violates the commerce clause but it contains a tax  - the individual mandate - and under the taxing power the law is constitutional.  Now the tax Robert's is talking about is the penalty someone pays if they can afford health insurance (and under the ACA they can buy it without going through their employer) and they don't.  If they are poor enough to qualify for Medicaid then of course they don't have to pay for private insurance.  It is not a Tax it is a Penalty.  And the only way to confirm whether someone can afford health insurance is to look at their federal tax return and at that point determine (voluntarily noted by the taxpayer) whether they have health insurance. Everyone in this country who pays for health insurance is already paying a tax - increased higher premiums to pay the health care at emergency rooms of those who don't have insurance.  This penalty will actually shift the burden of that alleged "tax" to those who should pay it rather than all those who shouldn't.

So in typical dysfunctional American governmental tradition the Supreme Court makes the correct decision for the wrong (compromised) reasons.  The right declares war on the tax and continues its' crusade for the repeal of Obamacare.  The left must now give up its' dream of universal single payer Medicare for All and settle for defending Obamacare. And simply because some of us, myself included, are not unhappy with the ruling on Obamacare does not mean we should now place a halo around Chief Justice Roberts and be quick to bow in reverence to the Supreme Court.

The Supreme Court of the United States, except for a brief three decades after World War II when great liberal jurists like Hugo Black, William Douglas and of course Earl Warren attempted to establish an absolute interpretation of the Bill of Rights and incorporate those rights onto the states through the equal protection clause of the 14th Amendment, has been a wall impregnable to people oriented laws.

In 1856 the Court issued the Dred Scott decision, immoral in it’s very wording, it declared that the constitution was for white people only and Negroes could never be truly free in the United States.  It wrote a color line into the constitution and most historians feel it made the Civil War inevitable.   Forty years late in Plessey v. Ferguson the Court having to live with the emancipation of slaves enunciated the “separate but equal” theory and applied it to all public institutions and accommodations.(even though the equal part of the equation was never enforced)

As the Congress of the United States attempted to deal with the depression of the 1930's (which other countries responded to by installing dictatorships) with sensible legislation that tried to save manufacturing and farming in America and at the same time protect the workers, the children and the elderly, the Supreme Court struck down major legislation passed overwhelmingly by the Congress. During the early years of the New Deal the Supreme Court almost made itself a third house of the national legislature.

And with Citizens United the court has handed the government of this country over to those with the billions and unlimited funds to control it.  A restoration of the robber baron corruption of the Gilded Age is coming about as we witness this years' Presidential election.  In the state of Montana which suffered control by the cattle barons and the railroad magnates one hundred years ago the people of Montana adopted controls on campaign financing.  The same Supreme Court which gives false homage to states rights says No you couldn’t do that one hundred years ago. The government of Montana is not of, by and for the people - it will, like the rest of our governments, be owned lock, stock and barrel by the ultra-rich.

A democracy is based on the rule of the majority of the citizens of a polity with respect for and guarantees of the rights of the minorities.  It establishes a form of government, in our case a federal representative republic, which assures those rights and preserves them from one generation to the next. The Supreme Court is the only branch of the federal government that is not elected. The Justices are appointed by the President (who in a second term is not answerable to the people since he cannot run for another term) for life. And to these unelected nine people we give more power than we give the chief executive or the members of either house of Congress. When adopted at the Constitutional Convention it was assumed it would be just the top level of a federal court system.  None of the founding fathers saw it as what it became a coequal branch of the government.  It was the President’s veto that was supposed to save the nation from unconstitutional laws and even that could be overridden by 2/3 of the people’s representatives. Now with super majorities required in the Senate, and with unlimited and hidden expenditures of money  by the ultra rich in election campaigns; and with the Supreme Court of nine deciding who our President will be (Bush v. Gore) and what laws, even if they get through the labyrinthine processes of the federal legislature and are signed by the President, will be allowed to take effect we have undermined all the promises of democracy that were so nobly proclaimed in our Declaration of Independence and our Constitution. 

30 June 2012