On December 26th, 2011, I wrote on my blog post: "the question here is whether or not requiring an individual to purchase health insurance is actually the same as Congress requiring a health insurance tax. And if this mandate falls under the rules of taxes, we are barred, legally, from questioning this." Not many people raised the possibility of a SCOTUS ruling that the mandate required in the ACA could in anyway be construed as a tax. In fact, most of the pundits said that there wasn't any conceivable possibility that the Justices could call this a tax. How could they, since the current administration had even claimed that this could not fall under any legal tax. I went on to say that this could fall under the Anti-Injunction Act, in which Congress has the unilateral authority to raise any tax that they deem necessary, and the we Americans could not even question the tax until after the tax was collected. I then pointed out that Congress had WAY TOO MUCH power, and that this sounded more like a monarchy or a dictatorship, rather than a republic.
Several people have asked me how or why I even thought it plausible that the Supremes might call this mandate a tax, and therefore legal and constitutional. And my answer has remained, it is simple. When one is dealing with our federal government, including the Supreme Court, most things are not what they seem. Our "leaders" enjoy doing the exact opposite of what the American people expect, or want. Much of America has been against the ACA since before it was written. Yet, Congress ignored the American people. Then the state lawsuits popped up in more than half of our states, and the popular decision was that at least the mandate portion of the bill was Unconstitutional. This gave much of America hope that the US Supreme Court in all of its wisdom would also follow suit and declare the mandate unconstitutional. And, as was hoped for and expected, they did just that, the mandate was declared unconstitutional. But, here's where one needs to look at the "leaders" past track records for some insight into their psyche, they have a habit of doing the unthinkable, or supporting the unpopular, or performing a "slight-of-hand" trick.
But, how did I determine that this was still a possibility, you may ask. That's a fair question. I guess the bottom line is "I don't trust these cats!" What you see is NOT what you get. Their yea is not yea, and their nay is not nay! And when they frequently declare that they have your and my best interests in mind, that is NOT true. They actually believe exactly the opposite. Their ultimate goal, as an entire body, is to protect their own power, and to maintain their control over each and every one of us. If this weren't true, there wouldn't even be an Anti-Injunction Act on the books, giving them unlimited power to raise taxes at their discretion!
And then, to accurately interpret the "tea leaves" as I did, one also needs to look at the make-up of the Court. When one analyzes the court and their voting records, it becomes clear that there are two "mavericks" on the Court, John Roberts, and Anthony Kennedy. Both of these two Justices have a history of going against their popular party stance or vote. And so, knowing this, I continued to ask myself, how on earth could either one of these two men find a loophole that gave them the latitude to sway the Court one way or another. And every time I wrote about the ACA, or studied the four questions brought before the Supreme Court, I kept coming back to the Anti-Injunction Act. In my simple way of thinking, it seemed the only place for real "wiggle room" was through the vehicle of a tax. And sure enough, this is exactly what Chief Roberts chose to do. It could have just as easily been Justice Kennedy who performed the prestidigitation. Knowing that either one of them were capable of entertaining the American people with a magic show, I felt strongly that the odds of success for the ACA went up dramatically. If each Justice had remained true to their stated party beliefs, the ACA would have been shot down 5-4, as there are 5 "conservatives" on the Court and 4 "liberals".
One other thing to think about is that Chief Justice Roberts, when he took the oath to become the newest Chief Court Justice, he made it really clear what he thought his responsibility to the Court entailed. He used the example of baseball to illustrate his philosophy of jurisprudence at the highest level. He said that the Chief Justices job was similar to an umpire. When someone attends a baseball game, they don't show up to watch the umpire, they come to watch the players, and the pitches, and the batted balls. The umpire's job is never to become the focus of attention, as this distracts from the game. He seemingly understood that he only wanted to be seen Chief who focused on the constitutionality of any case brought before the Court. He appeared to have a real desire to remain out of the political arena. He sounded like a Chief Justice who wanted to be remembered for his understanding of both the letter and the spirit of the law. And then, in one fell swoop, he made a philosophical about face, and thrust himself smack dab into the middle of the political ring, in spite of all of his past ramblings.
So, you see, Chief Justices Yea is not Yea, and his Ney is not Ney. He is no different than any of the other "leaders" that continually tell us that they have our best interests at heart. They see themselves as free-thinking, superior beings, who have been placed on this earth to assist us, as they know what's best for us, when we are incapable of knowing what's best for ourselves. Of course, many will say, well that may be true for your "leader" or for anyone else's "leaders", but that's not true for mine. My question for these people would be, "are you sure about that?" Just give them some time. It only took what, seven years or so, for Chief Justice to completely flip-flop on his philosophical position. It doesn't look too good for us Americans, does it? And if your banking on repeal, as that's what our "leaders" are telling us, it makes me mighty leery in believing that repeal will actually happen. The "tea leaves" suggest that we should expect the unexpected. And if America wants repeal of the ACA, and if the pundits believe that repeal is possible or even probable, then look out, my friend, that likely means "Obamacare" is here to stay!
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