Obamacare’s demise is one of the exquisite ironies of the Tax Bill

Given Obama’s years’ long shell game about whether or not Obamacare was a tax, isn’t it lovely to see the Tax Bill spell the end of Obamacare?

Obamacare Mandate Tax BillOn September 20, 2009, Barack Obama had an interview with George Stephanopoulos during the run-up to the vote on the Affordable Care Act (aka “Obamacare”). Stephanopoulos, showing a surprising amount of journalistic integrity, asked Obama to explain how it was possible that the individual mandate was not a tax.

Reading Obama’s subsequent intellectual contortions is embarrassing in the same way that it’s embarrassing to watch someone’s pants fall down in public. You’re seeing something you shouldn’t see — in Obama’s case, that something being the fact that we elected a con man as president. Obama embarked on a convoluted, incoherent explanation about money flowing to the taxpayer in a way that could never be mistaken for a tax. Since we know he’s not an idiot, he was obviously running a con.

Stephanopoulos tried to stem the tide of words with logic, but Obama was relentless. Eventually, Stephanopoulos fell back on the dictionary (perhaps mindful of the fact that Obama, in 2008, snapped, “Don’t tell me that words don’t matter”), to point out that, no matter which way Obama spun things, he was describing a tax. Obama responded as only he could, with snark and lies:

STEPHANOPOULOS: I – I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax – “a charge, usually of money, imposed by authority on persons or property for public purposes.”

OBAMA: George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what …

STEPHANOPOULOS: Well, no, but …

OBAMA: … what you’re saying is …

STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.

OBAMA: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but …

STEPHANOPOULOS: But you reject that it’s a tax increase?

OBAMA: I absolutely reject that notion.

The lovely thing about being a narcissist, whether as an individual or a political party, is that the truth is always defined by the needs of the moment. So it was that, four years later, Team Obama switched sides on the argument when it came time to defending Obamacare before the Supreme Court. The Court was amused at the time, although the last laugh was on Americans:

On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a “penalty” and a “tax.”

The confusion arises because of the administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power — but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.

The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.

U.S. Solicitor General Donald Verrilli used the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.

“General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.

The remark underscores the fine line the White House is walking in its argument. On one hand, it says the backstop is not a tax, because that could subject it to the Anti-Injunction Act — the focal point of Monday’s arguments — and delay a ruling to at least 2015. On the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the mandate easier — Congress’ power to levy taxes is less in question than its power to require people to do things.

Repeat after me: It’s not a tax. It is a tax. It’s not a tax. It’s anything that will save Obamacare from violating the Constitution.

Ultimately, the Supreme Court concluded that Obamacare was, indeed, a tax. I still enjoy reading Andrew McCarthy’s fire-breathing denunciation of that decision:

Of all the fraud perpetrated in the passage of Obamacare — and the fraud has been epic — the lowest is President Obama’s latest talking point that the Supreme Court has endorsed socialized medicine as constitutional. To the contrary, the justices held the “Affordable” Care Act unconstitutional as Obama presented it to the American people: namely, as a legitimate exercise of Congress’s power to regulate interstate commerce.

To sustain this monstrosity, Chief Justice John Roberts had to shed his robes and put on his legislator cap. He rewrote Obamacare as a tax — the thing the president most indignantly promised Americans that Obamacare was not. And it is here that our recent debate over the Constitution’s Origination Clause — the debate in which Matt FranckRamesh PonnuruMark Steyn, and yours truly have probed the historical boundaries of the “power of the purse” reposed by the Framers in the House of Representatives — descends from the airy realm of abstraction and homes in on a concrete violation of law.

It is not just that the intensely unpopular Obamacare was unconstitutional as fraudulently portrayed by the president and congressional Democrats who strong-armed and pot-sweetened its way to passage. It is that Obamacare is unconstitutional as rewritten by Roberts. It is a violation of the Origination Clause — not only as I have expansively construed it, but even under Matt’s narrow interpretation of the Clause.


Contrary to Obama’s latest dissembling, the Supreme Court’s decision is far from an imprimatur. The president insisted that Obamacare was not a tax, famously upbraiding George Stephanopoulos of the Democratic-Media Complex for insolently suggesting otherwise. Yet, the narrow Court majority held that the mammoth statute could be upheld only as an exercise of Congress’s power to tax — i.e., contrary to Obama’s conscriptive theory, it was not within Congress’s commerce power to coerce Americans, as a condition of living in this country, to purchase a commodity, including health insurance.

Note the crucial qualifier: Obamacare could be upheld only as a tax. Not that Obamacare is necessarily a legitimate tax. To be a legitimate tax measure, Obamacare would have to have complied with all the Constitution’s conditions for the imposition of taxes. Because Democrats stubbornly maintained that their unilateral handiwork was not a tax, its legitimacy vel non as a tax has not been explored. Indeed, it is because Obamacare’s enactment was induced by fraud — a massive confiscation masquerading as ordinary regulatory legislation so Democrats could pretend not to be raising taxes — that the chief justice was wrong to rebrand it post facto and thus become a participant in the fraud.

We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

To recap — Obama and his administration lied that Obamacare was not a tax because that was the only way they could get the Bill passed. Four years later, expediency had them admitting that it was a tax, because that was the only way they could save it from the obvious fact that it was always an unconstitutional attempt to exercise power under the Commerce Clause.

After the Supreme Court decision, the Progressive smug was thick in the air. It remained as a noxious cloud over the years as premiums and deductibles skyrocketed, insurers pulled out of the exchanges, patients lost their doctors and hospitals, and more middle class people elected to pay that tax rather than bear the cost of the Progressively-revamped health care market.

The smug reached peak thickness earlier this year when the Republicans — who happened to own both houses of Congress and the White House — proved incapable of repealing Obamacare. All their promises do so in the preceding seven years were, viewed charitably, baseless optimism and, viewed uncharitably, outright lies.

President Trump was surprisingly sanguine about this Republican humiliation. Perhaps, given how the Republicans too often joined with Progressives in trying to undermine him, he enjoyed seeing them humiliated before America. Speaking as a conservative, not a Republican, this glance at the squirming, spineless worms beneath the Republican rock couldn’t have happened to a less appealing party.

It surely helped, too, that Trump knew that there’s more than one way to skin a cat. And he was so right. Enter the recently passed Tax Bill.

Having lived by the tax lie, and then gaining renewed life by admitting the lie, isn’t it lovely to see Obamacare smashed through tax reform? While it’s true, of course, that the tax bill does not explicitly repeal Obamacare, it nevertheless strikes a deadly blow at the ACA, by following the money . . . and choking the supply to death:

Congressional Republicans, after trying unsuccessfully for months, delivered a major blow to the Affordable Care Act this week by including in their sweeping tax reform bill a provision that repeals the individual mandate.

While that provision was overshadowed by the intense focus on what the passage of the biggest tax overhaul in three decades means for Americans’ paychecks, the impact on ObamaCare could be just as significant.

Already, the White House is casting this as the demise of former President Barack Obama’s signature domestic policy achievement.

“When the individual mandate is repealed, ObamaCare is repealed. That’s where they get their money,” President Trump said Wednesday during a Cabinet meeting. “With this bill, we have essentially repealed ObamaCare. And we’ll come up with something much better. ObamaCare has been repealed in this bill.”

The law hasn’t literally been repealed. But the individual mandate is a linchpin of the ACA, which is why its defenders fought so hard to preserve it — first before the Supreme Court, and later in Congress.

I hope that the government has the wits to open healthcare and health insurance to the free market. George Bush’s healthcare savings accounts was one approach that would empower consumers. I’m sure that there are others.

Incidentally, I’m not defending the old system, which had significant, costly market distortions. One was (and still is) that the person receiving healthcare services isn’t the person paying the bill. I wrote about that problem almost eight years ago:

One of the main problems with medical costs is insurance itself. My son had oral surgery today (tied to orthodontic stuff). The cost was horrific. I didn’t think about it twice. Aside from the fact that the oral surgeon came highly recommended (and it was my son under the knife, after all), I had no incentive to look for someone cheaper or to bargain with the doctor. My insurance will pay about 60%-80% of the cost, and the remainder is, to my mind, a reasonable fee to pay out of my own pocket for the procedure he underwent.

I learned this lesson a long time ago. As befits someone as highly strung as I am, I’m a night-time tooth-nasher (bruxism). Although I belonged to Kaiser when I got my first jaw guard (back in the early 1990s), Kaiser didn’t make jaw guards, so it sent me to an outside provider.

I saw this orthodontist for about 4 minutes, his staff made a mold, he sent the mold to the lab, the lab made the jaw guard, I went back to the office for a 10 minute fitting — and that was the end of it. I paid out of pocket for the jaw guard ($250, which was a reasonable price to me in terms of ending headaches and jaw pain), and Kaiser paid the orthodontist bill, which came to $800!

Because the person working in Kaiser’s payment office, the one who cut the check, had no vested interest in the bottom line, Kaiser never went to that orthodontist and said what any direct consumer would have said: “Are you out of your cotton picking mind?! Are you actually charging me $800 for less than 15 minutes of your time, plus 10 minutes of your staff time? No way am I going to pay that bill.” As it was, Kaiser paid 100 cents on the dollar.

Another problem before, during, and (now) after Obamacare is the way government programs (Medicare, Medicaid, etc.) interfere with the market. Because these huge programs set prices, health care providers have to find other ways to recover their actual costs and to make a profit.

Incidentally, I’m all for the profit motive in health care. Becoming a doctor in America is a huge commitment: Four years of college, four years of medical school, one year of internship, two years of residency, and then, if the person is specializing, up to eight more years in various fellowship and other programs — all so that doctors can provide Americans with quality, cutting-edge healthcare.

Of course, you get what you pay for. Other countries demand less of their medical students, and we certainly could go that route. I have to admit, though, that when I or a family member received care in those other countries, it wasn’t the high quality I was used to. Additionally, even in those other countries, medical students still put a lot more of their young lives on hold, without earnings, in order to get their medical degrees. Without adequate compensation, no matter the system, you’ll end up with a small cadre of passionate people, fewer doctors, and doctors with less skill and knowledge.


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