The court’s ruling that Congress does have the power to pass Obamacare under the taxing power is, to put it mildly, unconvincing. The court acknowledged that the Patient Protection and Affordable Care Act itself refers to the mandate by describing the consequences of a failure to obtain health insurance as a “penalty.” It says that the use of that description is “fatal” to the applicability of a law that says the court can’t hear a tax case at this stage of things, since it’s a penalty and not a tax. Then it turns around and says it’s not fatal to the ability of Congress to use the taxing power to pass the mandate in the first place. This is what the Chief Justice of the United States, John Roberts, calls a “functional approach.”
Our guess is that distinction will strike most people as a lawyer’s self-parody. But we’re for bowing to the Court and throwing oneself into the political fray. The Court’s ruling sets up Governor Romney to remind us again that the taxing power is the most dangerous of the powers handed to the Congress. And that when the Democrats get ahold of the Congress, they will use it in every way they can — even in requiring an innocent, law-abiding citizen who is beyond the reach of the Commerce Clause to purchase health insurance. It is a moment to remember that if the Obamacare mandate is a tax, then it is something that can be cut or repealed, as thousands of other taxes have been in the history of our country, almost always to beneficial effect. That is, after all, the bedrock on which our entire revolution began.