Imagine that the decision of the Supreme Court was not ObamaCARE, but ObamaCAR. It might have been.
In the bailout of General Motors the Obama administration chose to reorganize the bankrupt auto company by stiffing its creditors and bondholders leaving a very big company owned largely by the taxpayers and the autoworker’s union.
The Democrats owned both houses of Congress and the White House. They could have crammed through a partisan law mandating that every American own a car.
Photo Credit: REUTERS/Jonathan Ernst
They would not be so gauche as to argue on behalf of profits for the taxpayer. They might say that the Emergency Medial Treatment and Active Labor Act of 1986 mandating that emergency rooms treat everyone regardless of citizenship, legal status of ability to pay was meaningless if the afflicted party had no transportation to get to the hospital.
We could call it ObamaCAR. It would save lives as well as help the taxpayer and the unions. Failing to buy a car would result in a fine to be levied by the IRS.
To be fair to the poor a subsidy would be provided based on income. The subsidy would only apply to purchases from dealerships willing to let the federal government set the terms of the sale.
The language limiting the subsidy to approved dealerships was repeated nine times in the bill without ambiguity. Early drafts of the IRS rule-making also reflected the limits.
When Deputy Assistant Treasury Secretary for Tax Policy Emily McMahon discovered the limitation she instructed the staff to ignore it. Henceforth all drafts of the IRS rules were written to include all auto purchases.
Thus the law was amended without burdening the Congress and a $700 billion entitlement was created out of thin air.
The law clearly would have a broad impact on the society and the economy. Many people, who have never before been able to afford a car would now have one with the taxpayer’s help.
Untold numbers of lives would be saved with the ability to transport Grandma to the emergency room without delay. ObamaCAR eliminated the anxiety about deaths due to unmet transportation needs.
There would, of course, be legal challenges questioning the government’s authority to mandate that we buy any product irrespective of good intentions.
Public life attracts people who almost always desire to “do good.” Judges are no exception.
For Chief Justice John Roberts that desire to do good seems to be driven by a desire to satisfy the appetite of a Congressional majority that has prevailed in a democratic process.
Rather than strike down ObamaCAR as an affront to the Commerce clause, Roberts would ignore an entire year and a half of debate and discussion, in which it was promised repeatedly that the fine was not a tax. “We’ll just call it a tax,” Roberts said. There. That settles that.
When the newly created $700 billion entitlement was discovered another challenge rose.
Roberts would, of course, conclude that the Congress’ good intentions were more expansive than the words they wrote to define them.
Roberts wrote: “Congress wrote the law to improve (auto dealer) markets. Not to destroy them.”
Perhaps he slept through that debate in which the majority wanted to outlaw the dealerships entirely and to have “single payer” auto sales to be delivered by a government bureaucracy that would treat everyone fairly and equally.
Prominent Democrats said then, and repeat now, that the ultimate goal is to end the private auto dealer market and the outrageous profits of the dealerships.
The votes weren’t there to stiff the auto dealers so a compromise was reached to allow private dealerships to continue under strict federal rules.
Roberts concluded that the words, “those dealerships approved under the law” really meant “those dealerships operating legally under the laws of the United States.”
The fact that Roberts chose to interpret the words as he did can be understood in the context of his desire to genuflect before the legislating mob. He decided that they just wanted to do the most good for the most people.
When John Roberts was testifying at his Senate confirmation he said that judges are referees. They call balls and strikes. They don’t pick up the bat and swing at a pitch. In two out of two court challenges of Obamacare, Roberts stepped up to the plate and took a huge cut at the ball.
In his defense it has been said that he believed that the Bush v. Gore decision put the court in a political place that had diminished its stature. As Chief Justice he sees himself as a protector of the reputation of the Court.
He whiffed that one too.
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