We’re all familiar with the classic shell game. We follow the ball. We know the huckster's tricks and we know he is moving it around to trip us up, but we believe our eyes are faster than the huckster’s hands.
Since the day in November of last year when the Supreme Court announced that it would hear the ObamaCare case, Americans have watched the ball of the individual mandate. We reckoned that we knew where the huckster was going to put it and some of us thought there was even a chance that it would fall off the table completely.
Then yesterday, after we all had placed our bets, confident that it would show up under the Commerce Clause shell, the huckster ended the game by revealing the location of the individual mandate ball: It was under the Taxation Clause shell. We all guessed wrong and we all lost.
Perhaps the strangest part of Thursday’s Supreme Court ruling upholding the constitutionality of ObamaCare was the reasoning relied on by Chief Justice John Roberts to justify the decision.
In plain language, Roberts said that although the government cannot force you to buy a commodity (health insurance), it can tax you if you don’t.
And therein lies a bit of a sticky wicket for the Chief Justice, as well. Despite the government’s attorneys arguing that the individual mandate is a penalty and not a tax (President Obama himself adamantly made such a denial), Roberts dismissed the administration’s label, declaring that the penalty was a tax and therefore permissible under Article I, Section 8 of the Constitution.
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Photo: In this Jan. 27, 2010 file photo, President Barack Obama greets Chief Justice John Roberts before he delivered his State of the Union Address on Capitol Hill: AP Image