Thursday morning's high drama was intense out front on the Supreme Court steps, where I had the honor of standing with my friends from the Tea Party Patriots. The nervous energy before the decision was palpable. The concern about the future of our country that brought so many activists into the tea party movement in the first place had only intensified since, and the contrast between their intelligent, heart-felt speeches and the hypnotic chants of the counter-protesters was stark.
Then the news broke - I thought. There it was on my Twitter feed, courtesy of CNN: "@cnnbrk Supreme Court strikes down individual mandate portion of health care law." I relayed the information to the crowd, which erupted in applause.
But wait. In the next instant came a text from my wife - who is not only the most wonderful wife and mother in the world, but also a leading employee benefits tax lawyer and expert on the president's health care law. She wrote: "Mandate unconstitutional but surviving as a tax."
So I corrected my earlier announcement. People were confused and disappointed. Activists were prepared for a loss. But not like this. Not with Roberts joining the four liberals - who of course are so political in their decision-making that what they would do was never in doubt.
I explained that this legal sleight-of-hand by John Roberts - transforming the mandate into a tax despite all evidence to the contrary - at least preserved the legacy of the Rehnquist Court, which was to place limits on the Commerce Clause. But if the federal government can compel behavior via "tax penalties" when it can't regulate them as commerce we're left with a distinction but not much of a difference. William Rehnquist was sorely missed on Thursday.
The bottom line is that the John Roberts ignored the entire legislative history of the president's health care law, dozens of public promises from the president himself and supporters in Congress who insisted the mandate was not a tax, and a 20-page explanation in the law itself.
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He did that to rule that the mandate at the heart of the president's health care law is actually a tax on the middle class after all. A tax on people who can't afford the expensive health insurance the government wants them to buy, or have ideological or religious reasons they would prefer not to buy such health insurance.
So now the president's promise not to tax the middle class has been exposed as fundamental deception at the heart of his health care law. Now Congress must repeal the law and pass real health care reform that empowers patients and doctors and doesn't rely on a dishonest mandate tax.
It's clear that we cannot count on courts to provide any meaningful check on the powers of the federal government. But we cannot afford to wallow in that unfortunate fact. Now that nearly every aspect of our lives is subject to interference and control by politicians, we must engage even more forcefully in the political realm and win there. As we learned Thursday, nobody else is going to do it for us.
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