Romney's Other Health-Care Contradiction

In vowing this morning to do what the Supreme Court didn’t—repeal Obamacare—Mitt Romney trotted out all his arguments against the newly constitutionally sanctioned health-care law. Among them were these two points: First, that Obamacare would cause 20 million Americans to lose their health insurance, and second, that it would be a job-killer to boot.

Problem is, these two arguments directly contradict each other.

The 20 million Americans who presumably would lose their health insurance would do so because their employers would decide to cease offering it, letting their employees fend for themselves on the health-insurance exchanges. Why would these employers opt to do that? The only conceivable reason is that it would be cheaper for them to do that. And if it were cheaper for them to do that, they’d then have more money to hire more employees, creating rather than killing jobs. 

You can argue, with serial implausibility, that Obamacare will cause millions to lose their health insurance or that it’s a job-killer. You can’t argue both.

With today’s ruling, the fate of President Barack Obama’s health-care reform will be up to the voters in November’s election. For voters who hate Obama and all he stands for, that’s one more reason to go to the polls—but those voters are probably going to the polls in any event. If Romney decides to ride this issue, it’s not clear he’ll gain anymore votes than he already has locked up. He may motivate some Republicans who don’t particularly care for him but will vote out of their hatred of Obama to care for him somewhat more. (Polling shows that a higher percentage of pro-Obama voters support the president because they like him more than pro-Romney voters like Romney.) But I doubt that raising his positives among voters who are already determined to vote for him anyway matters.

Republicans will doubtless exploit the Court’s upholding the mandate under the Congress’s power to tax rather than under the Constitution’s commerce clause. There’s that T-word again! It’s unlikely that more than a couple percent of the American people, those with incomes adequate enough to decline to buy insurance, will ever be subject to that tax, but you can count on Republicans to depict it as a mass confiscation worthy of Lenin. Obama and the Democrats need to be able to counter this with real numbers—in Massachusetts, the one state that has already adopted a similar law, just 1 percent of taxpayers are subject to the penalty—even as they focus on the benefits most Americans will derive from the law, which was the tack the president took in his statement this morning.


It is important to note that all government spending and taxation have as their purpose the social welfare. In our kleptocracy, however, this has been perverted into opportunities for looting society and channeling wealth to elites and kleptocrats.

Roberts wrote the opinion and the majority was comprised of Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. I want to underline this because the opinion is very much a victory for the corporations and illustrates the corporatist nature of the so-called liberal wing of the Court.

With a Roberts’ opinion, I expect it to be well written with good documentation, and legal thinking that looks superficially good but on further consideration is trite and reflects his political biases.

That said, Roberts is correct that both the government’s Commerce Clause and Necessary and Proper Clause arguments fail. Obamacare sought to force a group of Americans (the uninsured) into commerce (buying insurance). Its intent was not to regulate commerce but, first to create commerce and then regulate it.

The Constitution gives Congress the power to do certain things in certain areas of the national life. The Necessary and Proper Clause is the grant of Constitutional authority to write laws in those areas. This is where things begin to go haywire in the Roberts opinion. Roberts could have just said that if the Commerce Clause is inapplicable with regard to the individual mandate, then its enabling legislation goes by the boards as well. Or put more simply if Congress doesn’t have the authority to write legislation in a certain area, then it can’t write legislation in that area.

But Roberts says something tellingly different. He says yes, the individual mandate is necessary to Obamacare but its mandatory nature is not proper to the enumerated power of Congress (I would assume this means the Commerce Clause) to write legislation in this area. Again this statement is superfluous because Roberts has already thrown out the Commerce Clause argument, unless Roberts means to go somewhere else with it. And he does.

Roberts, you have to understand, is a past master of the sophistic argument. He needs a justification for the universal application of the individual mandate, and he finds one in the Taxing Clause. He does this even though he acknowledges that the Affordable Care Act law specifically calls the penalty for not buying insurance a “penalty” not a tax. Not to be hindered by anything so minor as the black letter of the law, Roberts says forget what it’s called. If it acts like a tax, that is the IRS collects it, it’s a tax. That the purpose is to force people to buy insurance is, for Roberts, beside the point.

Now consider this a minute and the sophistry behind it. Roberts thought that the mandate’s universal application (and penalty) under both the Commerce Clause and the Necessary and Proper Clause represented a vast and inadmissible expansion of Congressional power. But call it a tax, have the IRS collect it, and he has no problem with it. Under this kind of reasoning you could penalize anyone for almost anything. You could penalize all voting age adults for not having a photo voter ID, tea drinkers for not drinking coffee, cat owners for not being dog owners. If the purpose doesn’t matter, which is Roberts’ position, there really is no limit to this. Any group could be penalized for not behaving like some other group.

Nor do I think subtracting out the purpose of the penalty is accidental or incidental for Roberts. The whole rationale behind the mandate and its penalties is to force people to buy a product from a private corporation. And no, this is not like car insurance. It is not saying that if you drive, you must have insurance. It is saying that even if you don’t own a car, even if you don’t have a license, you must still buy car insurance or face a penalty. You see the characterization of the individual mandate penalty as a tax is completely at odds with its purpose. The tax is being levied against those who do not or refuse to engage in commerce with a private corporation. What kind of a tax is that?

I am not going to buy insurance. Put me in prison. I will still not buy insurance. Take away all of my assets. I will still not buy insurance. I do not want to buy insurance. Find someone else to run your con game on.

Taxes are irrelevant. This will be financed, along with all other socialism, by adding more trillions to the national debt.

I agree with the all the right wing opposition to the individual mandate, it is an inefficient and bad way to work toward universal health insurance. What else would one expect from a Heritage Foundation idea! What we need is Medicare for all instead of a Rube Goldberg plan to subsidize the for profit private insurance industry.

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