Has Obama Invited the Supreme Court to Revisit His Obamacare Tax?

Interesting post from Megan McArdle.

Early in the post, she discusses Obama's metric for counting "enrollees."

. There has been a sort of Talmudic debate over the meaning of the word “enroll” -- should we count folks who had chosen a plan and asked to be invoiced, or should we count only those who paid? Some of the people who enroll will not actually end up paying their premium. However, because premiums for January plans aren’t due until December, counting only those who have already mailed in their check or money order will substantially undercount those who will end up enrolling. Myself, I leaned toward counting those who have enrolled in a plan and requested an invoice for payment. But there were decent arguments on both sides.

The Barack Obama administration resolved this debate by choosing a third metric: They counted everyone who had put a policy in their online shopping cart, even if they hadn’t actually gone ahead and signed up. By this logic, I am the proud owner of 28 items in my Amazon.com cart, including a hot pink laptop case and a fridge mount for an iPad model I don’t even own.

But the most important part is this:

The administration is not changing the rules, just declining to enforce them against the insurers. This is becoming a pattern: Obama’s position on the law seems to be that it’s his law, and therefore the law is whatever he and his appointees say it is. That’s dangerous for all sorts of reasons, not least because it makes them vulnerable to court action.

Presumably they will also not enforce the mandate against people who have grandfathered plans. But that raises an interesting legal issue. Remember that in 2012, the Supreme Court ruled that the mandate was a tax. And as a lawyer of my acquaintance points out, taxes have to be enforced uniformly; the Internal Revenue Service can pick and choose who it audits, but it cannot pick and choose who has to obey the law. If it declines to enforce the mandate against grandfathered consumers, it's conceivably opening itself up to a bunch of legal challenges.

There is an old saying that Supreme Court justices are not in fact apolitical actors at all, but are, of course, intensely political people sensitive to the same sorts of things as any other politician, such as politicians: "The Supreme Court reads the election returns too."

It is well known that Chief Justice Roberts reversed his legal opinion on Obamacare, that it was unconstitutional, to offer a political opinion, that it was a tax and thus constitutional, in order to save the law. And he did this for political considerations, to preserve the public's good-will towards the Court and maintain its image of nonpartisanship.

Now, he did so even when Obamacare was already unpopular. But Historic President and all that.

But note, now, how much the political situation has changed. And consider how much he might like to have a second shot at this opinion.

And Obama has given him a pretext to write a new opinion. The Court would never simply reverse itself in a year.

But if the facts have sufficiently changed, and if Obama is interpreting his "tax" in a lawless way, claiming it only applies to groups which aren't becoming a political headache.... That gives Roberts the cover to say not "I was wrong" (which he won't say) but "I was right, and as I said previously this is a tax, and taxes must be levied even-handedly, and therefore this law must be struck for failure of the executive to apply it equally to all citizens."

It's no slam-dunk, I know. And the usual judicial response to a failure to enforce a law even-handedly is to demand the executive enforce it even-handedly, not to strike down the law altogether.

But might as well take the shot and see what happens.

posted by Ace at 11:03 AM

| Access Comments