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Published on June 28th, 2012 | by Luis Cavalcanti

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How to Divide a Country; the Healthcare Question and why the courts got it so wrong

I’m not a constitutional scholar, I’m not a philosopher, and I haven’t read a law book, but I feel like I might be qualified to say a few words about this because I write a blog… just kidding. But seriously, this is nuts. I thought I’d do my best to dissect the decision from the perspective of a layman.

1) There is no way the Supremes decided this based on the merits of the arguments they were presented. Also, do they have the jurisdiction to even make decisions regarding the law now that they’ve called the mandate a tax?

Remember the first two days of arguments? The administration and the states refused to argue that it was a tax. The court had to bring in a third party to argue the tax case. Then they deliberated because if it was a tax, the court had no authority to decide the case until the first penalties came down and the American people were affected.

Then, this…. Now it’s a tax. Something is fishy. Something in the state of Denmark is rotting or whatever Shakespeare wrote. Something is up. Something stinks. Something isn’t right.

It’s pretty clear by this decision that at least one Justice *cough* Roberts *cough* is concerned less concerned with legal precedent and more with the reputation of the court. Alas, perhaps he doesn’t realize that schizophrenic decisions that are poorly conceived are worse for the reputation of the court than decisions rooted in precedent and consideration. I’m not saying that there wasn’t a way for them to keep the mandate. I’m saying that the “it’s a tax” argument is not sound. Also, Democrats may not see it coming, but if it’s a tax, Obama just broke his biggest promise to the American people.

My favorite: “You will not see your taxes increase one single dime in an Obama administration.”
Hello election season.

2) When has a tax ever included specific exemptions granted by the Executive to specific corporate entities?

Since its passing Obama has granted numerous corporate enterprises and unions special waivers allowing them to be exempt from the healthcare mandate’s affects.

From this wellspring up comes a new sort of corporate wellfare. Since the healthcare mandate is a tax, and since the Obama administration is apparently capable of handing out waivers to companies that don’t want to pay that tax, why can’t the administration do that for other taxes?

“Hey GE, throw my campaign a couple bucks, and when I get elected, I’ll give you a waiver for your corporate income tax. I know it’s been such a burden on you.”

Thanks Chief Justice Roberts. I’m excited about that America. We don’t have enough opportunities corporate welfare and graft already.

3) When has a politician ever been so publicly two-faced about an issue?

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So the administration while it was trying to pass the bill said that this healthcare bill was absolutely positively not a tax increase. Perhaps they will rely on the idiotic semantic argument they have made in the last few days:

In defending the law, the Justice Department has taken a legal position — that the health care act constitutes a tax — that contradicts the political stance taken by President Obama. To do that, it has relied on legal semantics to argue that the insurance mandate will be enforced through the tax code even though Congress took pains to label it a penalty and not a tax.

After losing that argument in a lower court, the government’s lawyers switched positions to agree with the plaintiffs that the litigation was not blocked by the Anti-Injunction Act. But in its brief to the Supreme Court, the administration argued that while the penalty was not a tax that would fall under the Anti-Injunction Act, it should be viewed as a tax when the court considers on Tuesday whether the mandate is permitted under Congress’s broad authority to levy taxes.

In other words, the Justice Department is essentially arguing that the penalty is not a tax, except when the government says it is one.

New York Times

4) When did a tax ever take from people to give to a corporate entity?

If you can think of a time that this has happened, I will give you a high five. The only thing that even comes close to this is auto insurance…. Yes. The only two things I can think of that the government now mandates (auto insurance being a conditional mandate, not a condition of living in the US) are INSURANCE. It’s no surprise to find out that there are six lobbyists employed by the “healthcare” (probably more like insurance) industry to every one politician.

5) When has a precedent ever been so overreaching?

Think of the idiocy that can now occur. If we can call a mandate to purchase a product a tax, why can’t the Republicans mandate that I buy a gun or suffer an IRS penalty? Why can’t the democrats mandate that I purchase an alarm system for my home or suffer a tax? This wasn’t a narrow decision, so far as I can tell. It is deeply problematic and allows for all sorts of problems.

6) When did healthcare become the same thing as insurance?

Healthcare is what happens when you brush your teeth in the morning. It’s what happens when you go to to the pharmacy and buy some over the counter medicine. It’s what happens when you go get checked by a doctor for cancer or diabetes. Healthcare is not what is happening when you send the insurance company a check. At the moment, insurance is a gateway to having some forms of healthcare or participating in some forms of healthcare. The problem is that this entrenches a system that’s really pretty bad. There are other ways to deal with this. And there is a high probability that insurance is a bad gateway to healthcare for a large swath of the uninsured.

Before you call me ridiculous, take a look at one of the innovative ways that the problem is being dealt with in Camden, NJ. I’m not saying this is the answer. But I am saying that by entrenching insurance as THE healthcare gateway, we destroy the laboratory where ideas like this can even be generated.

7) What the hell is wrong with Roberts?

That is all


Here’s the thing, law anymore, is sort of a loosey goosey enterprise. Seperate but equal, for example, wasn’t ever deemed unconstitutional. Rather, the justices (at least as I understand things), said that while seperate but equal is fine, when that seperation necessarily creates inequality, it is not fine. While it’s an arbitrary distinction based on almost no stare decisis so far as I know. So in the case of Brown v. Board the court said that the Plessy v. Ferguson decision was fine, but as it shakes out, the separation that was allowed for in the Plessy case just caused unacceptable inequality. So the precedent established there was that the court gets to make calls regarding not the law itself but, rather the result of the law itself.

In the case of Obamacare, even before “the tax” has been implemented, the administration has given grants to corporations to forgive them of their “tax” burden. The administration told bald face lies about it not being a tax to make it ok for the democrats to vote it through. The tax is very literally flowing through the hands of government to pay insurance companies. The bill itself is a giant Tolstoy-esque piece of legislation. There is no chance that the court read it all and considered each and every piece of it. How could they have? On the inability to consider the constitutionality of the monstrosity alone should have been enough to have it struck down. The truth is, if the court thinks it’s role is in deciding upon constitutionality based on the result of a law and not the law itself, it seems to me that granting giant corporate entities large exemptions from having to pay a tax is an indicator of the graft and incredible inequality that is to result from this bill. Any company that doesn’t have the money to lobby congress will not have the ability to get an exemption. Unions with large membership base will very quickly be proffered exemptions. And if it’s constitutional to give tax exemptions to anyone they think deserves it based on the arbitrary decision of a lawmaker, then you have to understand that it is not absurd to think that lawmakers will start handing out exemptions for any other tax.

Seems like a good scheme to me: Tax behavior, force people to buy goods and services, exempt people who give your campaign money.

All I know is there is no way the courts actually decided this based on the merits of the argument.


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Luis Cavalcanti



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