GABlog

June 30, 2012

Why not

Filed under: GA — adam @ 4:10 pm

say a few words about the Supreme Court’s recent decision upholding “Obamacare”? I’m somewhat detached from it, more so than I would have expected, since I though the Court would overturn the law—I’m as surprised as anyone that it was Chief Justice Roberts who not only cast the deciding vote but did so in a decision that is convoluted enough to be a Borges story, a work of conceptual art or, more simply, a joke (and not a bad one, at that). He actually gave me a new way to think about the word “tax,” which one doesn’t expect from a Supreme Court ruling. So, the government can’t impose a mandate requiring you to buy a product, but they can fine you for not buying that product, as long as that fine is considered a “tax”; nor does the fine or penalty actually have to be called a tax in order to be a tax—indeed, those who passed the law can have, and can continue to, vociferously insist that it is not a tax. I would not be at all surprised if a new lawsuit charging that the “tax” is invalid because it didn’t originate in the House of Representatives were to be rejected, again in a decision authored by Justice Roberts, on the grounds that, for the purpose of this new lawsuit, it was not, in a fact a tax. In other words, what we might actually have here is a “nonce” tax.

And there’s even more! There is a trap for Democrats and, more broadly, the Left built into the decision: Roberts agreed with the dissenters that the Commerce Clause would not have permitted the mandate, hence, presumably, embedding some limits upon federal over-reach. But, one might say (and I would agree with one on this), that over-reach can continue, as long as Congress just says it is introducing new taxes. But there’s the brilliantly laid trap!—the whole point is to tax without admitting you are doing so.

There’s also a trap for Republicans, who have gotten themselves a bit entangled in their eagerness to rid us of this monstrosity—they began by insisting that the mandate was, in fact a new tax (this insistence lay behind the famous interview wherein George Stephanopolous pressed the President on precisely this question) but, then, for the sake of the lawsuit, were quite happy to deny its “taxness” in finding the quickest route to its overturn; and, now, seem thrilled to take the Supreme Court (which did decide wrongly, didn’t it?) at its word and run against this enormous new tax of Obama’s. This game might not end well either.

I am grateful to the Chief Justice, though, and not only due to my love of word play, self-reflexivity and arbitrary constraints in writing—in trying to decide for myself whether it is, indeed, “fairly possible” to see the mandate as a tax I had to construct the following, intriguing, analogy (which I assume Roberts himself relied upon). The government provides all kinds of tax breaks for activities it would prefer us to engage in more of: having children, winter-proofing our homes, sending our kids to college, and, really, God knows what else. So, in that case, why can’t we say that the government is taxing those who don’t have children, don’t winter-proof, don’t send kids to college, etc.; or, if we want to follow the Mobius Strip around the other side, that the government is “mandating” having children and all the rest? Sure, we can define “tax” and “mandate” in such a way as to answer these questions, but does anyone really believe in such fixed definitions anymore?

In other words, Roberts’ final trap is for us—all of us who have accepted the continual growth of government and its extension into every area of life, every choice we make, bribing, blackmailing and manipulating us at every turn, with our approval. And I think he knows it. Roberts has written a little postmodern play, in which the audience has to perform the denouement. That’s not such a bad legacy.

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