Our “Play Doh” Constitution – In Health Care Debate Obama Changes the Meaning to Match His Needs
“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.”
~President Barack Obama, September 2009
Back when Barack Obama and the Dems were trying to sell their massive health care overhaul to the American People, they were feverishly insistent that the individual mandate to buy government approved health insurance was absolutely not a tax.
America is typically not too keen on tax increases. We especially don’t like higher taxes when we believe they are being wasted. Now, with 6 out of 10 voters “lack[ing] faith in the president to make the right decisions for this country,” is one of those times. Moreover, we really, really don’t like tax hikes when someone gives their word that there won’t be any. We used to call it the “Read My Lips” moment. As soon as you utter the words you better be prepared to live up to them or pay the electoral consequences.
President Obama already had his “Read My Lips” moment saying, "If your family earns less than $250,000 a year, you will not see your taxes increased a single dime.” Then came health care. He argued it wasn’t a tax increase. The words of the legislation said differently. Page 29 of the Democrats health care bill says, ““The consequence for not maintaining insurance would be an excise tax.” But in the face of their own words, Democrats continued to argue that mandating individuals purchase insurance or pay a fine to the government was anything but a tax.
Now, facing a challenge as to the constitutionality of their scheme, Democrats it seems are ready to begin singing a different tune. As the New York Times reports,
Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.
The sudden flip-flop in arguments signals some doubt amongst the administration in their constitutional claims. David Rivkin, former Justice Department Lawyer during the Reagan and Bush administrations, has argued from the start that the Commerce Clause, albeit broad in scope, doesn’t apply to the health care reform bill. The Supreme Court has said that the “commerce clause is limited to economic activities that substantially affect interstate trade.” The healthcare mandate does not regulate an activity at all, rather it regulates inactivity in that simply being a citizen of the United States would trigger it.
Even the CBO has weighed in on the act, saying in 1994 that,
“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful resident in the United States.”
Perhaps sensing a losing argument the administration has changed its course, deciding to swallow its pride and admit the individual mandate is a tax. This, the administration argued would allow them more sweeping powers to regulate commerce. As the New York Times explained,
Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.
So when it was politically unpopular for Democrats to call the mandate a tax – it wasn’t a tax.
Now that they need to defend the mandate in court – it is a tax.
Democrats don’t really do consistency. But what this comical double-talk does show is that Democrats have an uncanny knack at making the means justify the ends. When it was time to sell the public on health reform, the President and his party were willing to say whatever they needed to in order to shore up public support. People don’t like a tax? Tax is out. What do people like? Universal health care? Ok, we’ll go with that. So long as their bill passed, Democrats couldn’t care less if they fudged some definitions and deceived the American People into supporting it.
Moreover, it may not be a winning argument. Randy Barnett, constitutional law professor at the Georgetown University Law Center, argues that
“Calling this a tax does not change the nature of the “requirement” or mandate that is enforced by the “penalty.” ALL previous cases of taxes upheld (when they may have exceeded the commerce power) involved “taxes” on conduct or activity. None involved taxes on the refusal to engage in conduct . In short, none of these tax cases involved using the Tax Power to impose a mandate .”
In other words regardless of whether you call it a “tax” or a “penalty” the health care law is still an unprecedented expansion of the Constitutional powers of the federal government. Nevertheless, the Democrats decision to view the Constitution as an after-the-fact nuisance to overcome, rather than a guideline to crafting their policy, is troublesome.
People who are so willing to stretch the meaning of the Constitution, so willing to say anything to pass their bills, so unconcerned with the rule of law do not belong in office. Our Constitution deserves better. Americans deserve better.
By Brandon Greife, Political Director of the College Republican National Committee