SCOTUS Pwns Obama with a “Schrodinger’s Cat” Solution

“Bite me, Obama.”

In essence, I think that is what Chief Justice John Roberts just said to the spoiled child who set about to “fundamentally transform” this country.  Obama just got hit right between the eyes with Justice Roberts’ Schrodinger’s Cat decision on the fate of Obamacare.

While all of the liberals are whooping it up and celebrating their “win”, they have lost sight of one very important thing:

The Supreme Court’s ruling gave them nothing.

In fact, in ruling the way that he did, Chief Justice Roberts may have, indeed, been playing 11th-dimension chess with someone who doesn’t appear to be able to see any further than his own naked ambition.

Let’s dig a little deeper into the weeds of the Obamacare decision, shall we? Here are the key points that Chief Justice Roberts raised:

The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.

As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.[340]

The Federal Government does not have the power to order people to buy health insurance. Section 5000A [of the Internal Revenue Code] would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.[341]

The MOST important thing that SCOTUS decided was that Congress does not have the right to compel citizens to enter into commerce. In ruling on the mandate under the Commerce Clause and the Necessary and Proper Clause, SCOTUS determined that the mandate – as an instrument of compulsion – is NOT constitutional.

That is a huge win for the American people – and really, that was the main argument that conservatives had with Obamacare. Citizens cannot be free if they are not allowed to make their own choices.

And now we come to the 11th-dimension chess game:

The people who were paying attention always knew that “Obamacare” was never about providing healthcare for American citizens. Obamacare was always about raising taxes – cleverly disguised as “insurance” – on American citizens. Chief Justice Roberts just laid that bare for everyone to see.

SCOTUS ruled that the ONLY thing that Congress can do under Obamacare if people choose to drop their health insurance is to impose a fine/tax on them – and you can bet that there are already lawsuits being drafted to question that power under the Constitution (and yes, this is a HUGE issue that needs to be resolved).

If people were to decide tomorrow that they are no longer going to purchase health insurance – they decide that they will just pay the “penalty” – there isn’t a damn thing that Congress can do about that under the Commerce Clause.  A doctor/hospital can still offer their services to patients, and patients can pay doctors for the services that they need.

By the same token, if employers were to decide tomorrow that they are no longer going to provide their employees with health insurance, but opt instead to pay the penalty, they will be in compliance with the law, and  Congress cannot penalize them any further.  An employer CANNOT be compelled to provide health insurance to their employees.

Now, here’s the kicker: That “penalty” was added as a result of the RECONCILIATION BILL that was passed; it was never part of the original Obamacare bill. It is possible that Congress can repeal just two sections of this “amendment” to the healthcare  bill without having to deal with repealing Obamacare, and they can do it with a simple majority in both the House and the Senate (or they can do nothing, and the entire reconciliation bill will expire in 2020).

Section 1002 of the Amendment – Individual responsibility: Starting in 2014 everyone will be required to maintain health insurance. If you go without insurance, you will be subject to a tax of $695 per year.

Section 1003 of the Amendment – Employer responsibility: Large companies will be required to provide health insurance as a benefit to its employees. Companies that do not provide this benefit will be imposed a tax of $2,000 a year per employee.

If those two provisions are repealed, anyone who wants to can refuse to purchase health insurance, and they can’t be penalized AT ALL

… is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.

The “regulated activity” in Obamacare is Health INSURANCE, not Health CARE.  We are free to find healthcare however and with whomever we choose.  So, we can go and see a doctor and just pay out-of-pocket costs as needed.

Legally, we can’t be turned away from any hospital – that law is already on the books (thanks to a previous Congress’ boneheaded decision).  Whether we can prove that we have paid the “penalty” for not carrying health insurance or not, that law still applies.

Obama can squawk all he wants to about this, but there is NOTHING that he can do to prevent a scenario like this from happening.  The Supreme Court just ruled that no American can be required to purchase health insurance – they can only be taxed for not having it.

The entire health INSURANCE industry can collapse in upon itself, and Americans will still be able to get health CARE.  In fact, that has always been the case.  The last time I checked, a doctor/hospital is free to offer care to ANY patient who is willing to pay them for their services.

You want to make it so that Congress can NEVER tax us for choosing not to participate in commerce?  Amend the Constitution to protect us all from a penalty-happy Government (and, yes, Mr. Obama – the Constitution is most definitely a “Charter of Negative Liberties”).

It doesn’t have to be complicated; in fact, the simpler, the better.  And to be honest, it’s possible that a Constitutional Amendment limiting the government’s power is EXACTLY what Chief Justice Roberts was going for with his ruling.

In the meantime, Mr. Obama has his bill – now let him try and implement it.***

*** (With sincerest apologies to Andrew Jackson….)
[Cross-posted at RedState]
[Update 07/02/12]: Thanks to Nice Deb for linking this in her awesome “round-up” post about Justice Roberts’ decision. If you’re not alreazdy following her, you should be – she’s got a fantastic site (and she really is nice)!

[Update 07/07/12]]: Just had to add Iowahawk’s devastingly hilarious – and brilliant – post about the discovery of the “Roberts’ Taxon“…..

About Teresa in Fort Worth, TX

A short, fat, over-the-hill, happily-married mother of 4 daughters. I know just enough to get myself in trouble....
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15 Responses to SCOTUS Pwns Obama with a “Schrodinger’s Cat” Solution

  1. Pingback: SCOTUS Pwns Obama with a “Schrodinger’s Cat” Solution | RedState

  2. pepelp2 says:

    You’re making my head hurt. Regardless of the theoretical legal nuances, this will be interpreted as an avenue to increased federal power. Now, instead of taxing you to modify your behavior ie. taxes on cigarettes, sugary drinks, they will see it as an opportunity to tax you to compel behavior. Overweight people use more resources, so get on the scale and we’ll look at our federally approved chart and see if where you fit in. Ooops, you’re overweight, guess you owe the fat bastard tax. Politicians never met a tax they don’t like.


    • See my previous post about a proposed Constitutional Amendment which could address this very issue.

      I agree – these bastards can tax us for economic inactivity – but if we don’t comply, what are they going to do? If all of the taxpayers are sitting in jail – getting 3 hots and a cot (and FREE HEALTHCARE!!!!) in some minimum-security country-club facility – where is all of the money to pay for this boondoggle going to come from?

      They didn’t think this through, and now it’s going to come back and bite them hard….. 😛


      • pepelp2 says:

        The only reason there isn’t income tax revolt is withholding. If employers didn’t withhold money, forcing you to file a return to get it back, nobody would file a return and pay. They couldn’t arrest everybody.


      • Yup.

        Maybe we should do like Wisconsin and have our states refuse to collect income tax/Social Security/Medicare for the Federal Government…..(A girl can dream, can’t she?)


  3. Jay in Ames says:

    Good article, but the danger is the precedent, to me. Now there has been a decision regarding taxes, and the door is open.

    Should have done all the legal maneuvering AND struck down the law. There is plenty there to do it, no reason to give a bone to the administration.

    Sanctity of the court indeed.


    • I agree about the precedent.

      The good thing is that now we know what we have to change – how hard do you think it will be to convince liberals that with this kind of power that if Republicans are in charge, they can use this precedent to require EVERYBODY to purchase a gun or pay a penalty? Or to buy 5 pounds of red meat every week?

      (I can already hear them screeching, “You can’t make me buy something if I don’t want to!!!!!!”)

      You think they won’t be beating down their Representatives’ doors to get an amendment on the books?

      This COULD work to our advantage…… 😛


  4. Sarah says:

    Sorry to be a Debbie Downer, but I still can’t believe some are still thinking Roberts was some kind of genius in doing this–it was stupid for Roberts to do this—someone “got” to him, OR he just wanted to be “popular” in the DC liberal cocktail parties! 0bama intimidated Roberts when he came out & DARED the SC to rule against 0bama, & Roberts crumbled like a cookie, that’s all that happened. He was more worried about saving reputation of the Court than he was in preserving our Constitution—he said that if we don’t like laws we should elect different people. Funny, I thought the Supreme Court was there to rule whether laws were constitutional or not? He broke the oath he took when was appointed! He did NOT do his job! They had the 5 votes to overturn 0bamaDEATHcare & he agreed w/all the 4 conservatives as to why it was Unconstitutional, but he then pivots around like some Wizard of Oz & did contortions & uttered gibberish all to REVIVE it by saying the mandate was a tax. Just an excuse.
    Anyway you say it, 0bama won—he may not like the mandate being an official “tax” but the Dems are so good at denying the truth, they’ll worm their way around it.
    Now, saying that, if anything good comes out of it, maybe Someone up above is smiling on us & will turn Roberts’ evil deed into something good for the good people of this Nation! (Making lemonade out of lemons.) But Roberts DID NOT dream up this scenario to help the repubs–he’s just morphed into a LIBERAL! He’s NOT that “smart by half”. In one week he voted w/the liberals on the court to open our borders and two days later to validate 0bamaDEATHcare….I’m NOT crediting anything good to Roberts in this attack on our Constitution, & I’m not assigning any “smarts” to him on this one.
    The article at this link details more on the way I see it. Hope it’s o.k. to post it—don’t know if you’ve read it or not, but he pretty much expresses how I feel.
    Sample from the article: “I have noticed a curious phenomenon in which some conservative commentators seem to be so desperate to find a silver lining to the ruling that they have abandoned all logic. This is an unmitigated disaster. You see, the political situation may permit us to repair the law, but it doesn’t permit us to immediately repair the damage done to the body of case law upon which future courts will rely as precedents in their own rulings….you realize the legal contortions through which Roberts arrived at this ruling, it makes no sense whatever to claim he hadn’t acted as an activist. The convoluted logic by which he found a tax in a law that plainly states it does not contain one is an onerous breech of any notion of strict construction.
    Ladies and gentlemen, there exists no silver lining to this ruling. All of.… the delusional happy-talk from some conservatives in media is designed to make you feel better. You’ve just lost both arms and legs in a brutal assault, but they tell you, you should consider this a happy opportunity to enjoy the comforts of a new wheelchair and mouth-controlled joystick. You’ve just lost your family to a violent home-invasion, but, they tell you, you should view this as a chance to start over. The intention here is to keep you calm. The intention now is to serve a political end, while your country is dying around you. Your most sacred law, the US Constitution, has been crumpled and tossed into the ash-bin of history, and you are told you should do a happy-dance to the calming sounds of “Oh Happy Days….
    The danger of self-imposed delusions is that you come to believe them, like a pathological liar. It is by this form of self-delusion that we’ve permitted our country to lose its roots in reverence for the Constitution. We cannot defeat the statists by pretending this isn’t the disaster that it is, if we can defeat them at all. I believe some talking heads know this, but do not want to yield to what will come in the wake of such a monstrosity. They’re hanging on, stubbornly telling us that the stench of smoke reaching our nostrils is merely an air freshener of a novel scent. Rather than screaming “Fire,” and warning conservative Americans that the house is ablaze, the barn is wiped out, the surviving farm animals running loose in a frantic bid to stay ahead of the flames licking at their heels, many are now telling you that it’s all okay. It will be fine.
    No, it won’t.”


  5. Sarah says:

    Good Take by Mark Levin, constitutional expert, relating to my previous post:
    “This decision I would go as far to say is lawless. Absolutely lawless!” Listen to his First Segment from June 28’s Show.


  6. Pingback: A Man For All Reasons « Nice Deb

  7. Pingback: So Much For “Patient Privacy”……. | Koch's Tour

  8. Pingback: Schrödinger’s Cat In Hospital « Omnium Gatherum

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