Many years ago, one of Virginia’s tax collectors pulled my car over. This agent, smartly dressed in a blue suit, had – I know, it’s frightening – a gun at his side, which he’d surely have used if I threw a violent fit about having to pay my taxes.
He had decided on the spot that, though I thought I had already paid all my taxes, I now owed the Commonwealth of Virgina an additional $125, and he gave me a little slip of paper to remind me. The slip said I would pay or he would see me in court.
Now, you wouldn’t really think of a Virginia State Trooper as a tax agent, would you? But many conservatives are applying the same logic to Obamacare, proposing that what is clearly a penalty – just like my speeding ticket was a penalty – is in fact a tax. The same conservatives, mind you, who would have celebrated a ruling against Obamacare under the Commerce Clause and never once suggested the law should be upheld because it was in fact a tax.
I understand the temptation to use this ruling to savage President Obama as the Great Tax Hiker on the Middle Class, the Supreme Hypocrite who promised not to raise taxes on those making less than $250,000 a year and then went ahead and did so in grand style. And I get the anger conservatives are directing at Mitt Romney for agreeing with Obama in order to protect his own legacy as a governor who authored Romneycare but didn’t raise taxes.
Obama of course is a hypocrite. The middle class will feel the lightening of its pockets from a penalty just as surely as it would from a tax.
But there is a distinction, and it’s a distinction with a difference. And it should matter greatly to conservatives, who are suddenly concurring with the Roberts decision in order to snag a campaign talking point – albeit admittedly good one – in exchange for grievous long term damage to their cause.
The law says you must do something – purchase health insurance – or incur a penalty. Roberts said this is impermissible under the Commerce Clause because it falls outside Congress’s right to regulate commerce – since not buying something isn’t commerce – but allowable under Congress’s Constitutional prerogative to assess taxes.
But this is equally pernicious, since it stipulates that Congress’s indisputable right to tax can NOW APPLY TO NOTHING.
Do nothing, get taxed.
What, you didn’t install solar panels in your home? Pay a tax. You didn’t buy at least one item of Native American handicraft last year? Pay a tax. You failed to purchase a slice of fish for your family once a week to help cut down on society’s health care costs? Pay a tax. Just a small one, it won’t hurt.
The opportunities for such mischief are endless.
Some argue that since Roberts has now “settled” the matter by declaring the penalty a tax, conservatives are within their rights to call it a tax too.
Which is about as logical as conservatives declaring there is a right to privacy somewhere between the lines of the Constitution that permits unlimited abortion.
Conservatives should not succumb to the very hypocrisy they claim to scorn. The individual mandate is a penalty, even if it hurts now to say so.