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The debate and indeed ruckus over the Chief Justice’s ruling in the Obamacare case may be quite confusing for non-Americans.

In order to understand it, one must focus on the federal nature of the USA. The question posed in the Supreme Court is not whether it is good to have the type of plan proposed. The question is whether the federal government has any power to pass such a law.

This may seem quite strange. But that is because most of what is considered government in Europe is handled in the United States by the governments of the states, such as the State of New York or Texas. Indeed, no one debates whether a state government has the power to pass a law like that in question. INDEED, one has: it was done in Massachusetts, as strange as it may seem, during the time that the Republican contender for the presidency, Mitt Romney, was governor there.

What, you may be asking, is the problem on the federal level? The problem on the federal level is that the federal government is generally thought of as being one of enumerated powers – only. Either the Constitution gives the federal (U.S.) government the power, or it just doesn’t have it. (The states retain it.)

The law was passed by under a certain theory: that the commerce clause of the Constitution is wide enough to give power to pass the law to the federal government. The main problem here was that there was a penalty attached to failure of an individual (citizen, human being) to purchase insurance. Thus, he had to purchase insurance or pay a fine: that was what the law called for. This puts the federal government in a position of telling a citizen he has to buy something – which is quite a radical proposition.

In the Supreme Court decision, a majority of the justices ruled that the federal government just does not have the power to do this under the commerce clause.

One justice, the Chief Justice, ruled that it would have had the power to do so if the penalty were a tax. He joined four other justices (a minority) who were of the opinion that the commerce clause is wide enough on its own. Thus, the law as it stands, and it was permitted to stand, treats the penalty and indeed the insurance payment as a tax. The claim is that the Federal Government can tax in this manner.

The matter is further complicated in that the argument was not really raised in any meaningful manner. (Arguments are usually raised in the procedure; they are talked out, as it were; both sides are heard.)  Roberts just kind of made it up. He may believe it, or it may have been a maneuver to keep the Court from being too criticized for over-activity. (Increasingly, it is being viewed as a giving-in to outside pressure.)

It is all very strange indeed. One would imagine that the matter would be left to the state governments. But some must feel strongly otherwise.

My own opinion? I have more respect for the four justices who thought the commerce clause wide enough to justify the law. At least they were intellectually completely and clearly honest. The Roberts tax ruling is too weird for me. I don’t like it as a lawyer, and as a leader, if it is a ploy of some type, it is highly unlikely to succeed; it therefore exhibits poor leadership.
I also think it dangerous. If a tax, it is a direct tax, which is prohibited by the Constitution without an amendment. Apart from anything else, it is unwise to drive such divisive measures, measures of such consequence, by brute force, as it were.


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