Obamacare and the Supreme Court
Today’s biggest health care story is obviously the Justice Department’s request that the Supreme Court review the 11th Circuit Court ruling overturning Obamacare’s individual mandate. Stories on that can be found in the New York Times here, the Washington Post here, the Wall Street Journal here, The Hill here, Politico here, and the Associated Press here. The filing itself largely trod upon previous ground; only two key points of note stand out. First, the Justice Department indicated it would NOT attempt to argue that a ruling on the mandate’s constitutionality should be deferred until after its implementation in 2014, due to the provisions of the Anti-Injunction Act. This law was the basis for the Fourth Circuit’s refusal to speak to the merits of the mandate in its ruling. DOJ’s position makes it likely (but not certain) that any Supreme Court ruling would speak to the merits of the mandate itself, as opposed to issues of standing.
Second, while other stories have previously commented upon this, it’s worth reiterating the contradictions between the brief’s arguments about the mandate’s status as a tax and prior comments from the President. Here’s what the Obama Justice Department said about the mandate yesterday:
“The ‘practical operation’ of the minimum coverage provision is as a tax.”
Here’s what President Obama said about that very subject in 2009:
“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.”
Again, the Obama Justice Department in yesterday’s filing:
“There is no such magic words test [for determining whether the mandate is a tax].”
And Obama in 2009 on the same subject:
“You can’t just make up that language and decide that that’s called a tax increase….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.”
Now that we’ve cleared all that up…