There were a couple of fairly momentous U.S. Supreme Court decisions last week. Here are just a few quick observations about those rulings. First, the highest court in the land ruled against most of Arizona’s immigration law. Second, the court upheld the constitutionality of the Patient Protection and Affordable Care Act, more commonly known as Obamacare. There were a couple of stunning ironies here that I want to address. First of all, I can’t say as I disagree with either decision by the high court. First, the court said Monday that the federal government has the sole power to enforce the laws against illegal immigration. In doing so, it struck down three key provisions in Arizona’s immigration law. On the other hand, the court cleared the way for the state to begin enforcing the most contentions portion of the law, known as the so-called “show me your papers” provision. That’s where police are admonished, during the course of a lawful investigation, to check the immigration status of people who may be in the country illegally. Now, the court included a caveat, via Justice Kennedy, that these status check can’t result in “prolonged detention.” But nonetheless, it was a partial victory for Arizona. But the court was clear about the remaining portion of the law. Justice Kennedy: “Arizona may have understandable frustrations with the problems caused by illegal immigration, but the state may not pursue policies that undermine federal law.” Right. Agreed. But here’s the irony. Isn’t that precisely what President Barack Obama did a week earlier when he instructed immigration officials not to deport the children of immigrants? Didn’t he undermine federal law by executive order? And again, I am not saying I disagree with President Obama’s position on this issue, but it’s a little chilling to me. What’s the next law that gets usurped by executive order because the executive and legislative branches can’t work together to craft salient legislation? Then there was the health care ruling. That ruling was stunningly ironic. You may recall that the court ruled that the individual mandate – the most contentious part of the health car law – was unconstitutional under the commerce clause. But at the same time, the court said that the mandate that everyone buy health insurance wasn’t under the commerce clause anyway. Since payments for the insurance would be collected by the Internal Revenue Service, it was a tax. Basically, the court rendered the Obama administration’s commerce clause argument moot. So even though the court disagreed with the administration’s argument, it upheld the law anyway. A “lost the battle but won the war” situation. Even more ironic was the fact that the court called the mandate – which, you may recall candidate Obama was against – a tax. That’s because President Obama – himself a constitutional law scholar – argued vehemently that it was not at tax. Of course, that was when he was for the mandate after he was against it. Here’s an exchange in September 2009 between the president and reporter George Stephanopolous: G.S.: You were against the individual mandate… Obama: Yes. G.S.: …during the campaign. Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax? Obama: Well, hold on a second, George. Here — here’s what’s happening. You and I are both paying $900, on average — our families — in higher premiums because of uncompensated care. Now what I’ve said is that if you can’t afford health insurance, you certainly shouldn’t be punished for that. That’s just piling on. If, on the other hand, we’re giving tax credits, we’ve set up an exchange, you are now part of a big pool, we’ve driven down the costs, we’ve done everything we can and you actually can afford health insurance, but you’ve just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that’s… G.S.: That may be, but it’s still a tax increase. Obama: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. ... G.S.: But it may be fair, it may be good public policy… Obama: No, but — but, George, you — you can’t just make up that language and decide that that’s called a tax increase. ... G.S.: I — I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax — “a charge, usually of money, imposed by authority on persons or property for public purposes.” Obama: George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what… G.S.: Well, no, but… Obama: …what you’re saying is… G.S.: I wanted to check for myself. But your critics say it is a tax increase. Obama: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but… G.S.: But you reject that it’s a tax increase? Obama: I absolutely reject that notion. Know why President Obama so forcefully rejected that notion? Because he knew there was no way Obamacare could pass if the mandate was viewed as a tax. Blue Dog Democrats in the House would have ran kicking and screaming from the legislation if they had to tell constituents the mandate was really a tax. A Congressional Budget Office analysis estimated the income levels of an expected 3.9 million uninsured who will pay higher taxes. More than three-fourths of them are not rich. Fully flying in the face of the president’s pledge not to raise taxes on anyone making less than $250K. Aside from the ironies, a couple quotes from the court caught my eye: “It is not our role to forbid it, or pass upon its wisdom or fairness” Read that, “We think this is a really dumb law, but it isn’t unconstitutional. And: “We do not consider whether the act embodied sound policies. That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenge provisions.” Read that: “If you folks don’t like this law, throw out the guys who enacted it.” The November election just got a little more interesting.
