by Andrew C. McCarthy, June 28, 2012 – 3:39 pm —
Led by Chief Justice John Roberts, the Supreme Court today decided that Americans have no right to due process. Indeed, the Court not only upheld a fraud perpetrated on the public — it became a willing participant.
The assessment charged for failure to comply with ObamaCare’s “individual mandate,” which requires Americans to purchase health insurance, was presented to the country by the administration and the Democratic Congress as a penalty assessed for lawlessness — i.e., for refusing to honor this new legal requirement. It was strenuously denied by proponents that they were raising taxes.
The Obama administration, in particular, was adamant that the assessment was a penalty, not a tax: the president himself indignantly objected to a suggestion to the contrary in an ABC News interview with George Stephanopoulos. Obama officials also vigorously maintained that there had been no violation of the president’s oft-repeated campaign pledge not to raise taxes on the middle class. Moreover, as stingingly noted today in the joint dissenting opinion of Justices Scalia, Kennedy, Thomas and Alito, the Democratic majority in Congress rejected an earlier version of the bill that became ObamaCare precisely because it imposed a tax — lawmakers intentionally substituted a mandate with a penalty for failure to comply so they could continue to contend that no one’s taxes were being raised.
Chief Justice Roberts claims that Congress simply used the wrong label. That is legerdemain. This is not a case in which Congress was confused, or inadvertently used the wrong term under circumstances where the error wasn’t called to its attention. The tax-or-penalty question was a hotly contested issue. As the dissent points out, it is one thing for a court to construe as a tax an exaction that “bore an agnostic label that does not entail the significant constitutional consequences of a penalty — such as ‘license’…. But we have never — never – treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a ‘penalty.’”