…Supreme Court Chief Justice John Roberts was looking at Congress’s taxation authority. To be sure, the bulk of the states’ argument rested on the unconstitutionality of the individual mandate under the Commerce Clause, and the Court agreed (with potential long-term implications). But Roberts obviously rejected their reasoning with respect to the taxing power.
Back in March of 2010, at his press conference announcing Colorado’s participation in the Florida lawsuit decided today, I asked Attorney General John Suthers about other constitutional issues that would be brought in the suit. He explained that Congress’s taxation powers would indeed be at issue in the lawsuit brought by the states against ObamaCare:
“The suit will allege that this tax, is a capitation or direct tax that is not apportioned equally among the states as is constitutionally required.
[Quoting the lawsuit] “‘The individual mandate levies a fixed, per-person tax directly on uninsured persons, unrelated to any taxable event or activity.’
“Typically, you are taxed as a result of a commercial activity in which you engage. This is taxing you for not engaging in a commercial activity.”
Because the Administration was simultaneously arguing that the mandate was and wasn’t a tax, we found it easy to dismiss this part of the discussion as not meaningful.
Suthers, who witnessed the oral arguments at the Supreme Court in March, said today that…
“And that was the only prediction I made after the arguments is that they’re not going to call this a tax. And I was flat wrong,” reported KUNC.
On the other hand – and Tevye notwithstanding, there’s always another hand – today’s ruling probably makes it harder for Pres. Obama to win re-election. Some liberal commentators claimed that a Court ruling striking down ObamaCare would simultaneously energize the left and take away the right’s central argument from 2010. Even a ruling eliminating the individual mandate and leaving much of the rest of the law intact would have done that.
But this ruling cannot help but energize those who want the law repealed. Presumptive GOP presidential nominee Mitt Romney is already running on the theme that, “To get rid of Obamacare, you have to get rid of Obama.”
By eliminating the severability clause between the Obama Administration and a very unpopular law, the Court kept alive a very potent issue for Republicans.
