And that affects profoundly the question of how to get rid of it. Mickey Kaus is correct, and Ryan Lizza & David Frum are wrong on this: the only reason that Obamacare was not cast down was because the US Supreme Court decided 5-4 that the so-called ‘individual mandate’ was constitutional if it was considered to be a tax.  The US Supreme Court also decided, 5-4, that the so-called ‘individual mandate’ was not Constitutional if done under the Commerce Clause.  So anyone who wants to argue that the Obamacare health tax is not actually a tax must also admit that Obamacare is unconstitutional.  Supporters of Obamacare do not get to have it both ways.  The Supreme Court has ruled that Obamacare’s centerpiece is a half trillion dollar tax hike on the middle class.  This is a thing that has happened.  And it means, among other things, that the Democrats’ threat of a filibuster is an empty one when it comes to repealing it next January.  We have a Senate majority, we can remove the health tax.  Simple as that.

DO NOT LET THE OTHER SIDE GET AWAY WITH PRETENDING OTHERWISE.  I understand fully why the Democrats don’t want to campaign on the position that their ‘signature’ accomplishment is a horrific, promise-breaking middle class tax hike; it’s only slightly better than campaigning on a promise to give kittens leprosy.  But that’s the Democrats’ problem, not ours.  All we have to do is figure out new ways to keep the gloating albatross around their collective neck until the election.  And one way to do that is to never, ever, ever let any apologist for the Democrats and/or Barack Obama get away with pretending that Obamacare [can be constitutional without being] a tax. If they get upset about that… good.  That means that what you’re doing is working.

Karma.  It’s what’s for breakfast.

Moe Lane (crosspost)

[Since updated for clarity.]

PS: Obamacare passed by reconciliation; it can darn well be gutted by it, too.  But thanks for the precedent!  …You know, I was once told that one should never assume that one’s opponents will never win another election.  The next few years promise to be, ah, instructive in that regard.

PPS: I know that Mickey – who is, after all, an honest Democrat who likes the basic idea of Obamacare – thinks that Mitt Romney won’t necessarily repeal it.  Two problems with that, though.  First off, large portions of Obamacare’s repeal aren’t under his control; it’s under Congress’s control, and the 113th Congress will be full of people who ran on the promise to kill the stupid thing.  Second, Mitt Romney knows full well that when the Republican base makes a Deal with a candidate, we expect the Deal to be upheld.  We don’t forgive as readily as the Democratic base does; in fact, you can make a case that we don’t ever forgive at all

5 thoughts on “Repeat after me: THE OBAMACARE ‘MANDATE’ WAS ACTUALLY A TAX.”

  1. Is it a tax? Only 1 of 9 Supreme Court justices says so. Politically, if Dems want to deny that it’s a tax, we can’t “prove” that they are “lying.”

    But with regard to reconciliation, there are two reasons why we can use it to repeal Obamacare.

    It was passed by reconciliation. To say that something could be passed by it, but not repealed by it, is absurd. It would create a power imbalance where laws are easier to pass than to change.

    At least 5 out of 9 Supreme Court justices would find that repealing Obamacare by reconciliation is lawful. Roberts would because he considers it a tax. The other conservatives (and AK) would because they think it’s unconstitutional. And some of the liberal justices might even agree (because it was passed via reconciliation and because it affects budgets and because, out of a sense of federalism, they don’t want to muck around in the Senate’s rules).

    In fact, if Obamacare was repealed by reconciliation, and that decision was challenged, I would expect the Supreme Court to rule unanimously, or to refuse to hear the case.

    1. Of course we can prove it: five of nine Justices ruled that it was Constitutional as a tax. Four of nine didn’t agree that it was Constitutional; those same four thought that it was Unconstitutional as a mandate… and a fifth Justice agreed. There is simply no way that you can say that the Supreme Court found the ‘mandate’ as Constitutional as anything except as a tax. The burden of proof that it’s not a tax is the Democrats’ problem, not ours. As is the fact that they’re self-evidently lying. All we have to do is refuse to let the Left off of the hook. Tedious, perhaps, but nobody said that being a citizen was inherently fun.

      Moe Lane

      PS: This is a political issue where we are backed up by legitimate legal analysis, not a legal issue. The difference is subtle, yet important. 🙂

  2. Moe: Assuming we get both the WH and Senate and have enough R’s with spine, the question will be what does the Senate parliamentarian believe? By the letter of the law, it’s a penalty. By Roberts, it’s a tax. With all of the Dems still screaming “it’s a penalty” will they be able to apply enough pressure to sway the parliamentarian to say “Hey, the law says it’s a penalty, not a tax. I’m just being a strict constructionist here.” Yes, I know the R’s can hire whoever they want to be the parliamentarian. Tell me, in the aftermath of Thursday, that that matters.

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