Saul Loeb/AFP/Getty Images
Tea Party protesters demonstrate against the Supreme Court ruling upholding the constitutionality of the Affordable Healthcare Act outside the Supreme Court in Washington, D.C. on June 28.
Tea Party protesters demonstrate against the Supreme Court ruling upholding the constitutionality of the Affordable Healthcare Act outside the Supreme Court in Washington, D.C. on June 28. Saul Loeb/AFP/Getty Images
Ilyse Hogue is a columnist for The Nation.
In perhaps the most highly anticipated decision of the Obama administration, the Supreme Court voted 5-4 today to uphold the individual mandate as constitutional. Justice Roberts, who sided with the liberals to tip the balance, voted to uphold the measure not under the Commerce Clause, as the Solicitor General had argued before the Court, but under the power of Congress to "lay and collect taxes." The ruling surmises that the individual mandate amounts to nothing more than a tax charge levied on those free-riders who choose not to buy insurance and might otherwise end up sticking the rest of us with the bill.
How easy was that? No more arguments about the limits of Congress' power under the Commerce Clause or the merits of forcing broccoli on Americans. So why didn't the Obama Administration make the free-rider tax argument all along? Because to do that would be to admit that the President had proposed a new tax on Americans, even if only on the most irresponsible scofflaws among its ranks.
In a desperate attempt to salvage their political win, the minority argued in their dissenting opinion that even though the effect of the mandate is that of taxation, it cannot be upheld under that jurisdiction because the framers of the law used the "wrong label." Just when you thought that conservative logic couldn't get more twisted, these judges "reasoned" that if the concerted anti-tax campaign was successful enough to force legislators to swap the word tax in order to sell a proposal, then they can't then have the protections associated with taxes. It's almost the legal equivalent to "you snooze, you lose!"
Confused? You're not alone, since confusion is an intended effect of the linguistic gymnastics key to the right-wing's win-at-all-costs game plan. But at least we can thank Chief Justice Roberts and the other four justices for striking a blow today for cognitive coherence. The Court affirmed by a razor-thin margin that a rose by any other name remains, constitutionally, a rose.
This comes as a blow to conservatives who, for years, have understood the power of language to shape reality. A nostalgic walk down memory lane of the healthcare reform fight is littered with catchy opposition phrases completely devoid of truth. Who can forget the summer of 2009 when town halls were filled with citizens terrified that Obama-appointed death panels would be administering their care if the bill passed? Anyone still have their "Obama lies, Granny dies" bumper sticker? Someone might want to tell Granny that it's safe to come out of the basement now.
And how about that mandate that's at the center of the frothing Tea Party rage? This "radical" initiative was introduced in 1993 by Republican Senator John Chaffey of Rhode Island as a means to undercut the employer mandate central to Hillary Clinton's infamous health care proposal. Shifting the burden of responsibility from business to individuals proved to be such a popular conservative position that Mitt Romney made it the centerpiece of his Massachusetts healthcare reform bill. Rationally, Democrats assumed that Republicans would never attack their own idea. However, ever attuned to the power of language, Republicans made the "mandate" sound even scarier than a small tax applied to a few bad seeds.
Now that that the Court has ruled that mandate is the semantic equivalent to tax, the questions seem endless. Can we expect "no-tax Norquist" to withdraw support from the Republican presidential candidate who effectively raised taxes on Massachusetts residents when he signed RomenyCare into law? And was Romney lying to his constituents then, as Sarah Palin claimed that Obama is now in her tweeted response to the ruling?
@SarahPalinUSA: Obama lied to the American people. Again. He said it wasn't a tax. Obama lies; freedom dies.
It's worth noting here that what their side lacks in originality, they make up for in brevity, lyricism and consistency. Truth comes in a distant fourth in the Republican message hierarchy.
But this whole linguistic rabbit hole we find ourselves at the bottom of raises the question: why not just call the whole thing what it is? Given how much Americans tend to love tax breaks and how relatively few "free-riders" there are who would incur unsubsidized new taxes under Obamacare, what political cost calculation led to all the talk of a mandate and a commerce clause in the first place?
The answer lies in a decades-long war on taxes that has left Democrats paralyzed when faced with an advantageous opportunity to reclaim the term. Conservatives, well aware of their victory in this strategic front of the language war, use the weaponized word prodigiously. In 2009, a Democratic-backed (but really quite conservative) market mechanism to put a price on carbon and begin the slow process of mitigating the disastrous impacts of climate change was killed in Congress after being labelled "cap-and-tax." Never mind that even more taxpayer dollars are going to fight unprecedented forest fires in Colorado or biblical-scale floods in Minnesota, both obvious effects of record heat and shifting weather patterns.
The full frontal assault on taxes was birthed by conservatives with an agenda to squeeze the life out of popular social spending initiatives in the latter part of the last century. Given how normative taxes were in American culture, the intellectual architects of the "Starve the Beast" strategy saw no way to force spending cuts without a high-profile campaign to destroy the funding mechanism. The fact that the Federal Treasury would be collateral damage was of no concern to these men, and any political consequence for an incoming Democratic administration was icing on the cake. George W. Bush's deficit spending and casino style regulatory approach drove the American economy straight off a cliff after systematically dismantling the rescue squads. The subsequent mess is one that Republicans have delighted in watching Obama try to clean up, a task made even more impossible by Republicans who would rather see the economy destroyed than vote for an increase in tax revenue, even — or especially — on the country's wealthy.
But the impacts of this scorched-earth campaign are ominously visible not only in a policy agenda skewed towards the 1 percent but also in newly embedded cultural norms. When fire services were rendered optional in rural Tennessee as a way to curb spending in 2011, many residents opted out. After all, who ever believes that their house will burn until the sparks start flying? But in at least two heart-breaking instances, firefighters were forced to sit by and watch as peoples' homes burned to the ground because of unpaid fees. The parallels are strikingly similar to the conservative outcry against the healthcare mandate, without which we would be forced to sit idly by while people suffer. As I wrote last week here, Justice Scalia's endorsement of the "let them die" faction of the tea party in the healthcare hearings gave judicial credibility to a fundamentally anti-American posture of indifference — a position reinforced by his dissenting opinion this morning. Do we really want to embrace an America where we watch our neighbors' lives go up in flames?
Given all of this, the irony of this much-reviled three letter word offering a parachute for a plummeting healthcare initiative is not lost on this progressive. As millions sleep easier tonight as a result of this ruling, it's important to remember a few lessons as we forge ahead: Obama didn't kill your granny, freedom is not actually dead and constitutionally protected taxes can — and often do — create a stronger America. That may be language actually worth fighting for.