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Did Justice Roberts Stick it To The President?

(Photo by Pete Souza/The White House via Getty Images)

In 2010, the president felt the need to chastise the Supreme Court Justices, sitting front and center during his State of the Union Address. Here’s what the president said during that speech.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.  (Applause.)  I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  (Applause.)  They should be decided by the American people.  And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

In other words, please correct the problems of the law that adversely affect my party (corporations donating to Republicans). Well, as we all know, no bill was passed to “correct some of these problems.” Why not? Because both parties get donations from corporations. No one is going to bite the hand that feeds it.

His reference, of course, was to the “Citizens United vs. Federal Election Commission” decision, at the end of their last session. Some states challenged Citizens United, Montana being one, but the Supreme Court upheld their original decision. What most voters don’t realize is that the president “dis’d” (disrespected) the high court in public on national TV. And, what makes the presidents insult even more personal is, for as long as he’s chief justice, this is the “Robert’s Court.” That’s historic.

Roberts Three; Obama Zero

Three recent decisions have directly affected the president and his efforts for reelection. The SEIU union lost their suit to use union dues for political purposes without member approval, the “let me see your papers,” portion of Arizona’s immigration law was upheld, and then healthcare was altered from a mandate to a tax. These three decisions would seem to say, “You wanna take me on Mr. President?” And as the president’s spiritual advisor, the Honorable Rev. Jeremiah Wright, would say, “The chickens have come home to roost.” What goes around comes around Mr. President.

The Heath Care Ruling

Roberts is either a genius, or very lucky, or a little of both. He found three ways to hurt the president in one ruling.

One, convert the unconstitutional mandate, that most people didn’t like, to a tax that can easily repealed by a simple majority in the house and senate. And, reconciliation, the same tactic used to pass the healthcare bill, can be used to defeat it. And the real kicker is, the government asked Roberts to consider it a tax if the court found the mandate to be unconstitutional, which is exactly what Roberts did.

Two, Obamacare is the law of the land for the moment. It was based substantially on Romney’s plan in Massachusetts. Over the next few months leading up to the election, if you vilify Romney’s plan you are vilifying the Obama plan.

Three, and it’s a double whammy, first, congress cannot withhold Medicaid money if the states can’t, or choose not to fund, their state Medicaid fund. So look for the states that brought the suit, to not only opt out, but to also de-fund Obamacare in their respective states.

Second, the four liberal judges were backed into corner and had to go with the tax idea or rule Obamacare unconstitutional. Justice Ginsberg wrote a dissenting opinion for a majority ruling. How often does that happen? Almost never.

How Exactly Did Roberts Stick it to Obama?

If the individual mandate part of the plan had passed the constitution test, under the Commerce Clause, or the General Welfare, it would have been much harder to change or repeal. Congress would have had to try to repeal the entire law. The chances of a healthcare repeal happening under the current president, are slim and none. Under the tax issue, congress could virtually kill the tax, and the plan would fall apart on it’s own, do to lack of funding.

We should be high-fiving the court for saving us from a bill that would have to be tweaked for the next 50 years, costing billions in maintenance.

Some Final Thoughts

Here’s the bottom line. The election just got more interesting. Trashing Romney Care is off the table. The model for Obamacare was just declared constitutional by the Supreme Court. Any reference to how bad Massachusetts’ health care was would point directly to how bad Obamacare could be.

The congress could defeat this tax even with a democratic senate and a democratic president depending on what the voting public wants. A simple majority of 51 votes could do it. If, on January 1, 2013, there are Republican majorities in both houses, that would put the president between a rock and a hard place if he chooses to exercise his veto power.

According to the constitution tax bills must originate in the House of Representatives. Obviously, this tax did not. Taxes are usually applied for doing something rather than not doing something.  Gas taxes for those who drive, tobacco taxes for those who smoke or chew, and income taxes for those who earn certain amounts of income.

New York state has a school tax, in addition to a property tax, that is paid whether you have children in school or not. That’s one of the few taxes I can think of where you pay a penalty for not having kids. This is the first time, in the recorded history of the Supreme Court, that imposing a penalty for violation of federal law is, in fact, a tax.

The next few months are going to be very interesting to hear what kind of “positive spin” the two parties will put on this historic healthcare decision. Over the next five months — I for one — will be all ears.

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