Thursday, June 28, 2012

The ACA Tax That Was Not A Tax Upheld As A Tax

I'm not sure I agree with some commenters that I highly respect that this decision was a form of political judo by Roberts that keeps the chance of an ACA repeal and Obama defeat alive.

I fear that's more a form of wishful thinking than anything else.

Even if the Commerce Clause in in eclipse, and that's a big if considering it wasn't needed to uphold this Act so that ruling might well be considered mere dicta, the taxing power is now newly ascendant.

If any regulatory regime that requires an expenditure can now be construed constitutional because it is a tax we're duly and truly hosed.

So ACA Act, with its mandate sold as not being a tax, is then argued before the Court as being both a tax and not a tax, and is then upheld by the Court as a tax.

After all, repealing bad legislation is quite difficult and just because it is upheld because it is a tax is likely to shift any voter's positions come November. Indeed, the left is already trumpeting this as a win with no mention of the little detail that the commerce clause was restricted but the taxing power unleashed.

In short, I fear Judge Roberts just punted and we're going to look back at this case as a lost, and possibly the last, real chance to step back from the morass that is the (un)Affordable Care Act.

1 comment:

ProudHillbilly said...

But but but Charlie Rangel says it's a "fee for services".