FIRST-PERSON: The health care ruling was no slam-dunk win

I must admit to being stupefied when the news broke June 28 that the Supreme Court had upheld the Patient Protection and Affordable Care Act, often known as Obamacare.

I was astonished when I learned that Chief Justice John Roberts, a man appointed by President George W. Bush, was the deciding vote and author of the majority opinion. My mental state gravitated from dumbfounded disbelief, to aggravated anger and then to the resignation of reality.

What I deemed unthinkable had actually happened. Not only was the health care law found to be constitutional by the Supreme Court, but an avowed “constructionist” jurist had sided with the consistently left-leaning judges of the court in upholding the law.

The whole situation seemed too bizarre.

As the day wore on, I took solace in the wisdom of Psalm 17:22, “A merry heart doeth good like a medicine.” So instead of getting sick, or crying, I decided to simply smile and look for a bright side. I also recalled advice from my father who always took negative news in stride. His philosophy was, “Sleep on it. It probably won’t look nearly as bad the next morning.” You know what? He was right.

A closer inspection of the ruling reveals that it wasn’t a slam-dunk win for supporters. As legal scholars begin to parse the ruling, things do not look as rosy for the president’s showcase legislation.

After reading dozens of articles dissecting the Supreme Court’s decision, the following represent a synthesis and summation of a few salient observations being made by some sharp legal minds.

The first aspect of Roberts’ decision to consider is that the chief justice ruled the individual mandate is unconstitutional under the Commerce Clause — turning back the argument proposed by the administration.

In practical terms, Chief Justice Roberts’ ruling said to Congress, “You cannot mandate, compel or force U.S. citizens to buy any product or service just because they happen to be alive and breathing.”

Some have tried to compare the mandate to purchase health insurance with that of a state requiring a car owner to carry liability insurance. A glaring difference between the two is that a person can choose whether or not he or she wants to own a car; if a person is alive he or she has no choice but to breathe.

A second aspect of Roberts’ ruling is that since Congress cannot mandate the purchase of health care, the only way it can regulate and fund the health care law is through its authority to tax.

When selling the law to the masses, President Obama insisted there was no taxation associated with the legislation, only penalties. However, when his Department of Justice argued in front of the Supreme Court, it admitted the so-called penalty, in fact, could be classified as a tax.

Roberts’ agreed with Obama’s DOJ and said that while Congress cannot mandate that the American people purchase health insurance, the health care law can be funded and regulated via the taxation of people who do not purchase insurance.

As far as I can tell, funding the law via a tax — rather than the president’s preferred penalty — will represent one of the largest tax increases in the history of America and will affect every single person in the United States. This will be difficult for supporters of the health care legislation to downplay and could well be a factor in future elections.

The most troubling aspect of the taxation ruling is that Americans are now going to be taxed on something they do not do or do not purchase. There is no doubt this opens the door for all sorts of future taxes. Are we going to see taxes on failing to exercise, not buying broccoli, failing to get an annual medical exam?

A third aspect of Justice Roberts’ decision dealt with the provision that Congress can coerce states into participation of the Medicaid expansion by threatening to withhold their current level of Medicaid funding. The federal government, the court said, cannot do that. Without the ability to force states to participate, the legislation seems to have lost some of its “national” luster.

Ultimately, only Chief Justice Roberts knows the rationale and motive behind his ruling. And, of course, time will tell how the aforementioned observations will actually play out. My ultimate hope is that the health care law eventually will be repealed. That said, my take concerning the Roberts ruling is while it is not good, it looks somewhat better now that I have slept on it.-BP