It’s not a penalty, it’s a tax. It’s not a tax, it’s a penalty. John Roberts’ ObamaCare decision draws laughs in the US Supreme Court on Monday. Hint: it’s not funny.
We all remember the 2012 ObamaCare decision in which Chief Justice John Roberts pulled a dipsy doodle and saved ObamaCare by rewriting the law to say the individual mandate was a tax. “Such legislation is within Congress’ power to tax.”
Roberts made sure the issue of the ObamaCare individual mandate penalties was argued as a tax even though the Obama Administration argued it was not. After initially believing the Affordable Care Act was unconstitutional as it was written, Roberts contrived to turn it into a tax and –voila!–part of the president’s cornerstone program was upheld.
On the upside, the Chief Justice limited the Congress’ ability to abuse the Commerce Clause in the future, but Constitutional originalists may never forgive him for allowing ObamaCare’s forced insurance purchase to be viewed as a tax instead of penalty.
The subject came up in the oral arguments of Hobby Lobby and Conestoga Wood Specialities on Monday. ObamaCare covers abortion drugs. These companies did not want to have anything to do with them. The issue is should companies owned by sincerely religious people be forced to denounce their religious beliefs to accommodate a government program? Hobby Lobby’s insurance pays for all kinds of birth control but wanted nothing to do with abortion drugs.
On pages 23-24 of the oral arguments Hobby Lobby’s attorney, Paul Clement, was asked by the liberal (and female) faction of the court about why the company doesn’t just drop insurance altogether and pay the penalty! Isn’t that nice of them? They’re just looking out for the financial well being of Hobby Lobby and by simply paying the extortion, they get to retain their religious rights!
Some choice. Heads: the government wins, tails: the companies lose.
11 JUSTICE KAGAN: No, I don’t think that
12 that’s the same thing, Mr. Clement. There’s one penalty
13 that is if the employer continues to provide health
14 insurance without this part of the coverage, but Hobby
15 Lobby could choose not to provide health insurance at
16 all. And in that case Hobby Lobby would pay $2,000 per
17 employee, which is less than Hobby Lobby probably pays
18 to provide insurance to its employees.
19 So there is a choice here. It’s not even a
20 penalty by in the language of the statute. It’s a
21 payment or a tax. There’s a choice. And so the
22 question is, why is there a substantial burden at all?
23 MR. CLEMENT: Well, just to be clear, we
24 were talking about the same thing. So the option, the
25 choice, is between paying a $475 million a year penalty
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1 and a $26 million a year penalty. That’s what Hobby
2 Lobby faces. So $2,000 per person
3 JUSTICE KAGAN: No, between paying $2,000
4 per employee per year if Hobby Lobby does not provide
5 MR. CLEMENT: That’s $26 million.
6 JUSTICE KAGAN: You know, Hobby Lobby is
7 paying something right now for the for the coverage.
8 It’s less than what Hobby Lobby is paying for the
9 coverage. There are employers all over the United
10 States that are doing this voluntarily because they
11 think that it’s less.
12 CHIEF JUSTICE ROBERTS: I thought I
13 thought that part of the religious commitment of the
14 owners was to provide health care for its employees.
15 MR. CLEMENT: That is true, Mr. Chief
16 Justice. It is also true that this
17 JUSTICE SOTOMAYOR: Well, if they want to do
18 that, they can just pay a greater salary and let the
19 employees go in on the exchange.
20 MR. CLEMENT: Exactly, which is, by the way,
21 why comparing the $2,000 penalty to the cost of the
22 health care is a false it’s a false comparison.
23 JUSTICE SOTOMAYOR: It’s not called a
24 penalty. It’s called a tax. And it’s calibrated and
25 it’s calibrated
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1 CHIEF JUSTICE ROBERTS: She’s right about
4 MR. CLEMENT: And it has been treated for
5 some purposes as a penalty. And I think for this
6 purposes, it certainly feels punitive.
It certainly does feel punitive. And that’s not funny.