Rabbi Pruzansky's Blog

SUPREME COURT UPHOLDS CONSTITUTIONALITY OF OBAMACARE –  Chief Justice Roberts: “The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance.”

The only non-surprise was the closeness of the decision, a classic 5-4 vote. Everything else stuns, especially the critical component of the decision. The Court upheld the individual mandate – the clause that obligates every American to purchase medical insurance or pay a penalty – but not on the grounds that Congress is within its powers of regulating commerce. That notion was specifically and properly rejected, as the Commerce Clause does not permit Congress to “compel citizens to act as the Government would have them act.”

Rather, the Court ruled that the individual mandate can be construed as a tax, which is within the power of Congress to levy. In effect, people who choose not to carry medical insurance will be forced to pay a tax (something less than $1000 per year for most people, technically about 2.5% of household income). The problems with this approach are numerous, not least that the Obama administration and the Democrats in Congress effectively pulled a classic “bait and switch” on the public. Obamacare advocates were outspoken during the “health coverage” debate, while the bill is pending, that the individual mandate was not a tax. Obama himself publicly disclaimed that it was a tax. They said repeatedly it was not a tax, but a penalty.

As I noted earlier, several columns back: “It is interesting that Congress could have chosen to raise taxes to fund a universal health program – but that was politically unpalatable. So the Dems chose the underhanded approach of asserting that the fee Americans must pay for failure to procure insurance a fine, not a tax, but, curiously, a fine to be collected by the IRS.” It was only before the Supreme Court, during oral argument, when the administration (in the guise of the Solicitor-General) sought to characterize the individual mandate as a tax, in case the Commerce Clause argument fell.

That the Supremes now become a party to this subterfuge is reprehensible. The American people were bamboozled.

There is more to the decision that troubles thinking people. CJ Roberts in his opinion duly noted that the Court was not commenting on the wisdom of the law, only its legality. Since the balance of the law was declared constitutional, one part that remains is the obligation on private insurance companies to cover pre-existing conditions – and not to penalize people with those conditions. But what is to prevent anyone from not buying insurance, paying the small fine (pardon me, “tax,” which is much less than the cost of health insurance), gambling that he will not consume $10-25,000 of health services in any particular year, and if he suddenly needs medical insurance because of an unexpected illness or injury? Just go out and then buy insurance coverage, which cannot be denied because of your now pre-existing condition – the illness or injury. So, too, Congress mandated that insurance companies cannot charge higher premiums to those with pre-existing conditions. Sensible employers similarly will cut off employee coverage, pay the fine (i.e., tax) and let employees fend for themselves.

The net effect will be the mass removal of consumers from the insurance market, and a concomitant and drastic increase in premiums for the remainder. Perhaps the Court could have addressed the “wisdom,” at least in passing. Certainly, CJ Roberts surprised, acquiescing to the “bait and switch” and upholding the law in conjunction with the four liberals on the Court. But, as he wrote, “we do not consider whether the Act embodies sound policies.”

    Roberts bought the Government’s argument in the alternative: “Instead, the Government asks us to read the mandate not as order­ing individuals to buy insurance, but rather as imposing a tax on those who do not buy that product,” even though “the most straightforward reading of the mandate is that it commands individuals to purchase insurance.” Nonetheless, five justices decided it was a “tax,” but curiously, under the statute, a tax whose failure to pay mandates no criminal prosecution (because Congress averred that it was not a tax!). At least now we understand why the IRS was to collect this penalty.

But how are insurance companies or the medical industry helped in their obligation to provide coverage for everybody if the “tax” levied goes right to the government? Not everyone who doesn’t carry insurance is Medicaid eligible. The government coffers are thereby burgeoned at the expense of those who are actually providing the services.

As the dissent pointed out, Obamacare will necessitate that insurance companies increase their premiums in order to survive – but as its premiums are already inflated, it is likely to price itself out of the reach of the average citizen. (The analogy would be to government mandates that automobile companies sell only electric cars that are better for the environment. But the cost of those cars is today prohibitive – even considering the government subsidies one receives to buy them – and if made a universal requirement would simply drive people away from buying cars.) Thus, whether the mandate taxes or penalizes, governments’ heavy hand intrudes on private conduct that undermines the proper relationship of government and governed.

The issue of penalty v. tax is more than semantics. It goes to the heart of congressional intent in the legislation itself. While Congress has the “power” to tax, the question here is whether it used that power in this legislation. By its own admission, it did not – so how could the Court construe it as such ? The dissent: “In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.” Almost by definition, a “tax” is never an exaction for unlawful activity but a predictable source of revenue for traditional activity. An exaction for “unlawful activity” – such as failure to buy health insurance – is by definition a “penalty.” Except by the Supreme Court’s awkward and contrived definition.

And the dissenters are clear keen to the politics: “For all these reasons, to say that the Individual Man­date merely imposes a tax is not to interpret the statute but to rewrite it. Taxes have never been popular. .and in part for that reason, the Constitution requires tax increases to originate in the House of Repre­sentatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. “

Here, the Court gave that feckless Congress a pass, even with the vengeance enacted upon the legislators in the 2010 elections.

      “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new de­sign will struggle to retain.”

     In retrospect, Nancy Pelosi was right. She said during the debate that “we have to pass the law to know what is in it.” Even she didn’t realize how correct she was. It took the Supreme Court to expose the tax increase that is at the heart of Obamacare that, along with diminished coverage and increased costs for all, will be its legacy until it is repealed.

Now is the time to hold Obama and the Democrats accountable for this outrage. The President will undoubtedly trumpet the mandate’s constitutionality, but completely ignore that his theory of constitutionality was explicitly rebuffed. And Congress’ public standing should further decrease, although at 10% approval, it doesn’t have that far to fall.

This will be a net loss for Obama politically. Obamacare’s unpopularity will skyrocket as the terms “Obamacare” and “tax” begin to merge in the public mind. It would be fitting if this convoluted and strained decision, a temporary victory, advances and assures his defeat.

     The ongoing massacres in Syria raise a number of compelling issues. The most obvious is the state of the world when the United States takes a back seat in world affairs, or, as in the Obama Administration’s precious phrase, prefers to “lead from behind.” Leading from behind has made the US (and the world) bystanders to the murder and brutalization of more than 10,000 people, all the rhetoric of compassion notwithstanding.

      And the massacres have indeed unleashed a torrent of rhetoric, a nuclear arsenal of verbiage designed to accomplish nothing more than placate the feelings of the bystanders and make a record for posterity. The record? That the civilized world did not stand by idly and watch children being dismembered alive but intervened with forceful and articulate denunciations of such vile conduct. Hillary Clinton might have joined a bit late (as of February, she was praising an Assad-led government for its stability) but her recent and strident declarations of “Assad must go!” resonate with almost-biblical passion. Of course, no one has yet done anything beyond the rhetoric, and only the hopelessly naïve believe that Assad will surrender because he cannot bear to have his feelings hurt enduring the insults of world leaders.

Chalk this up as another great Obama foreign policy success. Few remember that the prior administration had isolated Assad, but the Obama team chose to re-engage with Syria, even sending back the US Ambassador after a long absence. That re-engagement has worked out as well as the “reset button” with Russia which has easily manipulated the US into dismantling the missile defense in Eastern Europe already even as Russia awaits further US concessions after “my election,” as Obama was carelessly recorded saying “when I will have greater flexibility.” Putin plays Obama like a marionette. And the failure is compounded by Russia (and China’s) stonewalling on a UN resolution even condemning Syria for its atrocities, and Russia’s arming of the Syrian government today with the means to kill even more people.

Obviously, history’s narrative requires – demands – UN resolutions as de facto proof of the world’s concern, but of course it doesn’t really matter. A few choice editorials praising the resolutions and denouncing evil are icing on the cake. This recalls the famous statement of W.R. Inge, Dean of London’s St. Paul’s Cathedral, who said in 1915: “It is useless for the sheep to pass resolutions in favor of vegetarianism, while the wolf remains of a different opinion.” No UN resolution – and no sanctions, as we see from Iran’s case – will persuade evil people to desist from their evil. The calculus of evil is completely different from that of a normal, healthy psyche. One who doesn’t care about murdering the young and innocent will care even less about sanctions that starve them. And, as shocking as it sounds, murderers have also been known to lie, and even to renege on written agreements and commitments. Yes, shocking!

The bottom line is – and I know I am breaching propriety and the etiquette of nations – that no one really cares about the death of Syrian civilians. A cynic might argue that no one cares because the rebels in Syria are either worse than Assad or slightly less evil than Assad but they are evil, contemptible people regardless. Dictators – as noted here several essays back –bring a sort of macabre stability to their countries, and even though Assad and father were global trouble-making, Jew-hating murderers for more four decades, they did bring some type of predictability to their affairs. That same cynic might further contend that no outcome here is good for Israel – in fact, what benefits Israel is a long, drawn-out war that devastates Syrian society, much like Israel (and the civilized world) benefited from the Iran-Iraq war of the 1980’s, and probably why the US armed both sides in that protracted conflict. As no one has any great love for Syria or its people, the argument goes, let them stew. Their personal plights are a misfortune but their national collapse and weakness on the international scene is a net gain for all. Additionally, there is no vital US interest at stake, except insofar as the US has occasionally intervened to prevent human suffering – not always but certainly more than any other nation.

We need not be such cynics, but nor do we have to tolerate the rank hypocrisy that passes for the diplomatic discourse in this sphere. The fact is no one cared when Assad Sr. massacred more than 20,000 rebellious residents of the town of Hama in 1982, and then leveled the town to boot. Nor did anyone really care when 800,000 Rwandans were massacred in 1994 – although its aftermath produced a lot of hand-wringing and even a fine movie. But to actually do something ? No. And the massacres in Darfur in the 2000s, in Cambodia in the 1970s, and even the Holocaust for that matter, confirm the sad reality that people just don’t care. And if America does not take the lead – even though it suffers intense criticism for it – then people are murdered in staggering numbers.

That is part of the anomaly – and hypocrisy – in world affairs. Americans will be criticized for invading countries to save the citizens from their dreadful dictators – and then criticized again for not intervening in other places. Faced with such fraudulence, the easiest approach is just to do nothing and say everything – condemn loudly and wave a wet noodle. But then we have to endure the verbal duplicity that is so prevalent and grating, empty expressions of concern and “prayers” for the welfare of the victims.

Or, countries can do the right thing, and the right thing might not always entail military intervention. The simplest form of succor is shelter for fleeing refugees, and any sensible Syrian (or denizen of any dictatorship) should want and attempt to flee given the opportunity. This is primarily the burden of the Muslim neighbors of Syria, but don’t expect much. Indeed, as one wise physician pointed out to me, it is puzzling that Turkey and surrounding countries have not organized a flotilla to sail to Syria with humanitarian aid (and arms). After all, thousands are killed, wounded and imprisoned in Syria, versus none in Gaza, to which the much-ballyhooed flotilla was launched. Curious? Of course not –that is standard hypocrisy. Where is the Mavi Marmara when it is really needed?

Sometimes force is useful in rectifying these situations, and then only the US which remains the world’s dominant power is capable of exercising it. But when the military does not engage and negotiations are obviously unsuccessful, then simple integrity would demand that platitudes and crocodile tears be eschewed, and citizens be encouraged to fight their own battles against their own tyrannies. Syria, like many dictatorships and most Arab countries, is ripe for civil war.

There is something embedded in the spirit of the Left that equates words with actions, and loves to congratulate itself on its rhetoric. (President Obama, last week: “The economy is not doing fine. That’s why I called this press conference,” as if his press conference will somehow improve the economy.) It is difficult to live in a world where civilian life is cheap and dispensable, but spare me the soppy sentimentality, the feigned distress and the cries of “Assad must go.”

For Bashar Assad, the determined dictator, is likely to be in power longer than Barack Obama, the leader from behind.