'Constitutional Scholar' Obama Grandstands on Facebook After ObamaCare Struck Down – But Gets Something Right

P. Gardner Goldsmith | December 18, 2018
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Barack Obama (or his PR team) Saturday scrambled onto increasingly censorious Facebook to “reassure” frightened American sheeple that Federal District Judge Reed O’Connor’s December 14 strike-down of the so-called “Patient Protection and Affordable Care Act” (also known as “Affordable Care Act” or “ACA”), shouldn’t dissuade folks from believing in the future of his socialist-fascist medical scheme.

And what’s fascinating about his harangue is how dramatically it reminds us of the applicability of that the old adage “a broken clock is right twice a day.” Why? Because, deep inside his paternalistic “reassurances,” the “constitutional scholar” offers us a real lesson in Judicial review, while, of course, missing the larger constitutional, ethical, and economic points.

First, we need to travel back to 2012, when the United States Supreme Court (SCOTUS) under Chief Justice John Roberts decided the case of “National Federation of Independent Business (NFIB) et al v. Sebelius.” Ruling five to four, the majority claimed that the Obama “Individual Mandate” was “constitutional”…

And in order to understand two of the major problems with that, we need to travel back a bit further, to the 2012 period when people were wondering whether the SCOTUS could take the case at all.

In 2012, the individual mandate of the ACA was challenged on the grounds that there was no constitutional power to punish people for not buying something. That argument was, of course, sound. But here’s where things get tricky…

Before the bill was passed (before any of us great “unwashed” pawns could actually see it in all its unconstitutional splendor) Obama, Pelosi, and most of the royal Democrats appeared reluctant to define the penalty for not buying insurance as a "fine", and just as reluctant to call it a "tax increase". Instead, they skirted questions. 

But when the NFIB challenged the case, it was realized that if Democrats considered the penalty a “tax”, a 19th Century statute called The Tax Anti-Injunction Act would prevent the court from hearing it.

And what does the Anti-Injunction Act do?

It prevents any citizen from bringing a legal challenge to a tax until after the citizen has paid it.

Since Obamacare was not implemented until 2014, no one had actually paid the tax in 2012. So, in order to hear the case, the individual mandate was framed as a “penalty”. This allowed the case into the court where, you guessed it, it was promptly flipped, and, in the end, the penalty was labeled a “tax” that was a-okay to apply to citizens.

Pretzel logic for everyone. Get it while it’s hot.

Which brings us to better understand the new District Court Obamacare ruling…

Judge O’Connor’s decision, was excellent, as far as it went (which was not far enough). The case was a challenge to Obamacare brought by the Attorneys General for Texas and fourteen other states, and the judge reminded observers that in 2012, the Supreme Court of the United States had (erroneously, or course) done its little dolphin-flip of calling the Obamacare fine a “tax”, and that, as Obama and his pals had argued, it was “integral” to the working of the rest of the law.

But why is the penalty “integral”? It’s essential because Obamacare unconstitutionally mandates “Guaranteed Issue”, that all health insurance companies accept people with preexisting conditions, and that when they do, the companies must put them into “rating communities”, making younger, healthier people subsidize older, sicker people within the brackets.

So Obamacare is not really insurance. Insurance is a hedge against future liability. By paying premiums, a client offers money to a company on the bet that if he or she gets ill, the company will pay a lot to cover their expenses. The company, meanwhile, bets based on the health of the client, seeing his or her risks, and charging accordingly. If one can get health insurance after he or she gets ill, it’s not insurance, it’s politically mandated health coverage. Certainly we can see that politicians forcing home insurance companies to offer policies to people after their homes catch fire is not insurance.

Along those lines, once politicians mandate that insurance companies accept people with preexisting conditions (the policy is called “Guaranteed Issue”), this inspires young people to avoid getting insurance until after they become ill. This leaves older, often sicker, people in the pool of insureds, and forces companies to raise rates. As a result, the ingenious politicians in DC decided to include the “penalty” for not buying (and Dems and RINOS made sure that the penalty was very low, because they have been intent on driving private insurance policy prices higher and inspiring people to move towards a government “solution” of single-payer).

So the “fine/tax” was born.

And this was the facet of Obamacare on which Judge O’Connor ruled.

O’Connor noted in his ruling that in 2017, the GOP passed the “Tax Cuts and Jobs Act”, which made the Obamacare tax zero. But since the Dems argued that the tax was “essential” for all other facets of the law to function:

Congress stated many times unequivocally—through enacted text signed by the President—that the Individual Mandate is “essential” to the ACA. And this essentiality, the ACA’s text makes clear, means the mandate must work “together with the other provisions” for the Act to function as intended.

As a result, O’Connor determined, none of the ACA can stand.

This has upset many leftists. The pop news nets have begun their expected knee-jerk emotion-based stories about people losing their health insurance, and O’Connor is being demonized, when, in fact, he could have gone further, and stipulated that the “Guaranteed Issue” mandates on the insurance companies are unconstitutional.

And so His Wonderfulness, Barack Obama, the “Constitutional Scholar” who dumped us in this vast, unconstitutional sewer, decided to reassure the sheep that they can still apply for Obamacare. On Facebook, he offered:

As this decision makes its way through the courts, which will take months, if not years, the law remains in place and will likely stay that way. Open enrollment is proceeding as planned today. And a good way to show that you’re tired of people trying to take away your health care is to go get covered!

So, like a drunk partier hitting the barroom floor, but never understanding how he got there, a clearly emotional “Obama” is offering a lesson to us, but possibly not understanding the deeper lesson himself.

He is correct in that rulings by courts, even the Supreme Court, do not strike away laws. The laws still stand until the legislative branches eliminate them. Court rulings merely signal prosecutors that, should citizens run afoul of laws that courts have found to be unworkable or unconstitutional, the courts will likely find the citizens who ran afoul the law “not guilty” until the court composition is different.

So, right now, the court still has the five who voted in favor of Obamacare, and Brett Kavanaugh, who just joined, was a key thinker behind John Roberts’ pretzel logic to call the Obamacare “tax” a “fine”, then call it a “tax” again.

This doesn’t bode well for O’Connor’s ruling to be upheld, or, more important, for the “Guaranteed Issue” mandate to be struck down. In fact, President Trump, Mitch McConnell, and most of the GOP save for Rand Paul continue to live in the fantasy world that the “Guaranteed Issue” mandate is a good and legal thing.

Just like Barack Obama does.

This O’Connor ruling is epic, and logical, and correct, within the context of their so-called rulebook, The Constitution. But don’t expect Barack Obama to ever recognize the deeper issues. He’ll float around the surface, as his Facebook post indicates.

And so will most of the politicians and judges in DC, marching along, thinking it’s perfectly fine to force companies to do business they way they want. Because, of course, they’re the government, and they believe they can do virtually anything they desire.