[Benjamin Lusty is a lawyer and an occasional contributor to Publius Online]
Political dissemblance over the nature of taxes and regulatory architecture looms as an inevitably dark truth of post-Obamacare government. Through the tortuous legislative course of Obamacare’s genesis, Democrats continually denied that the individual mandate was a tax, the heaviest word in America’s political lexicon. Instead, the mandate was a “penalty,” or a “shared responsibility payment.” (A chillingly Orwellian turn-of-phrase). The Democrats knew that truth in taxation would slay Obamacare and scuttle their century-long obsession with state-directed flu shots and hip replacements. So they prevaricated. What do congressmen call a law that amends the Internal Revenue Code, is enforced by the Internal Revenue Service, and forces families to pay up to 2.5% of their incomes into the federal treasury? Anything but a tax.
Federal judges are not elected, and the politicians who voted for the law did not appear to defend themselves. That task fell to elite lawyers who parsed language with forensic care, while insulated from the heat of constituents’ calls, donors’ demands, and lobbyists’ lists. Those lawyers were high partisans engaged in definitive legal warfare. Of necessity, they adopted the tactics of expediency: prevail at all cost and regardless of any incongruity between the facts of the legal case and those of the political case. When the stakes are command of an entire industry, and control over 16% of the economy, a favorable outcome justifies all political carnage.
Partisan achievement of controversial policy goals, however, is not the purpose of representative government. Instead, representative government seeks consensus and accommodation of divergent political aspirations. It only works when legislative process affords principled dissenters all reasonable opportunities to prevail on the merits. This is impossible, however, when the agents of government cannot even agree to the meaning of the words they use to engage that process. When a law is a “tax” for constitutional purposes, but a “penalty” for political purposes, the terms of the debate shift underfoot, confounding the discipline that elective politics is supposed to instill.
Some may counter that this is mere wrestling over words, and that the mechanisms of the law are unchanged by the language used to describe it. But this begs the question over whether it is desirable for officials to tell constituents one thing and judges another. Is it really acceptable for politicians to soothe the masses while winking to the legal elites who patrol the boundaries of the political system? Besides, in its essence, government is simply words. The miracle of self government by words, however, cannot continue if the words themselves are subject to abuse.
In result, Justice Roberts’ opinion sanctioned deception. President Obama told the public that Obamacare was not a tax, but he told the court that it was. The outcome of the affair is that “by-any-means” legislation is entrenched in our government, our constitution, and our political reality. Now, neither political party has any real incentive to discuss tax policy honestly.
By any measure, Obamacare is the most expansive legislation in at least two generations. It fundamentally alters the relationship between the federal government, the states, and the people. It significantly amends the tax code, creates a new class of liabilities, and pours every man, woman, and child into a new, mandated, order of economic transaction. It should not have passed the scrutiny of all three branches of the federal government through variable solipsism. It should have been subject to the most exacting standards of honesty, procedural fairness, criticism, and consistency. It was not. It is the wreckage of political expediency, and the leading edge of continual obfuscation and cynicism. Repeal may spare us bad policy, but not bad politics.
- No taxation by misrepresentation (conservativeread.com)
- GOP lawmakers to Boehner: Defund Obamacare now! (wnd.com)
- WSJ Chief Economist: 75% of Obamacare Costs Will Fall on Backs of Those Making $120K or Less (treeofmamre.wordpress.com)
- Could a single word undo ObamaCare? (hotair.com)
- ObamaCare, the decision, and austerity (hotair.com)