Commentary: A Supreme Surprise!

Michael Steele discusses Obamacare

Commentary: A Supreme Surprise!

By calling the individual mandate a tax, conservative Chief Justice John Roberts helped save Obamacare.

Published June 29, 2012

Well, I bet you didn’t see that one coming! The Supreme Court in a stunner of a ruling upheld the Patient Protection and Affordable Care Act (affectionately referred to as “Obamacare”). Who knew that the individual mandate was actually a tax? Apparently, even President Obama didn’t know that the lynchpin of his health-care law was a tax, as he insisted rather vociferously to the American people that it wasn’t.


In a now famous interview with George Stephanopoulos (made more so by the Court’s ruling), when pressed that “[u]nder this mandate, the government is forcing people to spend money, fining you if you don't. How is that not a tax?” the president pressed back “…that you've got to take a responsibility to get health insurance is absolutely not a tax increase.” But George, not wanting to let the obvious get away from the president, went to…“Merriam Webster's Dictionary: Tax – “a charge, usually of money, imposed by authority on persons or property for public purposes.” In fact, the president would go on to “absolutely reject the notion” that his health-care mandate was a tax.


That was until his Solicitor General Donald B. Verrilli Jr. argued before the Supreme Court that the insurance mandate should be viewed as a tax and is permitted under Congress’s broad authority to levy taxes.


Chief Justice John Roberts, who wrote the majority opinion, took the bait and upheld the mandate as an exercise of Congress’ power to tax. But why?


Perhaps the most perplexing aspect of the court’s decision wasn’t the complexity of the legal argument, but rather the more subtle pirouette by the chief justice to bring a little respect back to his house.


In the wake of the Bush vs. Gore decision and more recently Citizens United, more and more Americans weren’t feeling the love for the Supreme Court. In fact, recent polls showed that confidence in the Supreme Court hovered around 37 percent; couple that with the broadsides the court has taken recently from the president himself and one can imagine the Supreme Court (or at least the chief justice) may just have a bit of a complex. I don’t mean to reduce this decision to the crassest of personal or political motives, but it cannot be overlooked that a decision which showed the court to be nothing more than an “extension of the nation’s polarized politics” would further undermine its legitimacy, perhaps irreparably.


To get a sense of his judicial temperament, during his confirmation hearings in 2005, Roberts referred to himself as an “umpire” and noted that “I will remember that it’s my job to call balls and strikes and not to pitch or bat.” I don’t think anyone expected him to call a penalty a tax, but he did and in doing so, effectively rewrote the president’s health-care law in order to save it — and the court.


So, Obama gets vindication, the court gets salvation and the rest of us will get, well, taxed.


The long-awaited decision by the court has now set in motion a political battle that will have important and far reaching consequences for our economy, our health-care system and the concept of freedom. On the surface, liberals may be rejoicing and singing the praises of the very court they have vilified in recent years; and conservatives may be scratching their heads at the perceived betrayal by the chief justice, but what each cannot overlook is the court has placed the burden of its ruling squarely in their laps.


Next week, House Republicans plan to introduce legislation to repeal Obamacare. And if that doesn’t work, presumptive Republican presidential nominee Mitt Romney has vowed to take action should he win in November. "What the court did not do on the last day in session, I will do on my first day if elected president of the United States, and that is that I will act to repeal Obamacare," he said.


At the same time the president and leading Democrats now must figure out how to move forward with adding 16 million people to the Medicaid rolls as part of the massive expansion of Medicaid under the law. The Supreme Court’s decision also struck down the provision eliminating all Medicaid funding to states that refuse to expand eligibility (26 states sued the federal government on this provision).


Like Justice Roberts siding with the liberals on the court, no one saw that high, fast ball coming either — except the “umpire.”



Michael Steele served as the first African-American chairman of the Republican National Committee. He is a former lieutenant governor of Maryland and a political commentator. He will be providing commentary on all things politics for each week.

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Written by Michael Steele


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