A Persistent ObamaCare Factoid

It used to be standard practice in journalism to corroborate. A responsible news outfit would get a second source (at the very least) to back up a story, and a good reporter would try to get it straight from the horse's mouth. This standard practice is slipping away in today's corrupt media environment. In contemporary journalism, if a factoid is being repeated by enough outlets, it's permissible to repeat an inaccuracy.

A recent example of a factoid (i.e., a spurious "fact") that the media continues to circulate comes straight from New York Times columnist Nicholas D. Kristof. In his October 12 column "A Possibly Fatal Mistake," Kristof wrote:

President Obama's care plan addresses this problem inelegantly, by forcing people like Scott to buy insurance beginning in 2014. Some will grumble about the "mandate" [...] Obamacare does address these problems, albeit in a complex and intrusive way, forcing people by a mandate to get insurance.

Notice the date of Kristof's column: three and a half months after the Supreme Court handed down its ruling on ObamaCare. Despite having plenty of time to read the Court's opinion, Kristof asserts that ObamaCare forces people to buy insurance -- precisely what the Court found to be unconstitutional.The November 18 Sunday morning editorial in the print version of the Kansas City Star began with this: "The U.S. Supreme Court ruling upholding the constitutionality of the individual insurance mandate in President Barack Obama's health reform law..."

It should be noted that the term "individual mandate" does not appear in the text of the Affordable Care Act, aka ObamaCare. What that term refers to is "the requirement to maintain minimum essential coverage," which ObamaCare foisted upon the individual. The explanation for the mandate begins on page 143 (PDF 162). Congress used the Commerce Clause to justify the mandate, and the Court found that unconstitutional. Yet, nearly five months after the decision, America's media, including my hometown newspaper, the Star, continues to misreport on this landmark case.

It is very significant that the Court found that the Commerce Clause cannot justify the "individual mandate," for on page 43 (PDF 49) of the majority opinion, Chief Justice John Roberts writes (italics added):

Third, although the breadth of Congress's power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

If Roberts is correct in all that, Americans should be thankful that he drew the line on Congress's expansive interpretation of the Commerce Clause. But Roberts allowed ObamaCare to stand. And he did that by transforming the penalty for not owning health insurance into a tax. That tax has been dubbed the "ObamaTax," but it really should be called the "RobertsTax."

On July 4 in "John Roberts' Travesty, Point by Point" at the Center for Individual Freedom website, Quin Hillyer analyzed the ruling on ObamaCare. Hillyer pretty much lays waste to Roberts' reasoning on the mandate, and his brief summation is particularly powerful. However, Hillyer's seventh point could have added that Roberts' invoking of capitation is inapposite because the RobertsTax only hits 53 percent of Americans. For those who don't want to pay the RobertsTax, Hillyer's fourth point is a must read:

Fourth, Roberts makes the extraordinary claim that "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS" -- and that the IRS is forbidden from using criminal prosecution to penalize those who refuse the mandate. The problem here is that the IRS can withhold income tax refunds from those who refuse to pay the penalty, and it can choose to apply ordinary income taxes to the penalty first, before crediting the citizen with having paid his due income taxes -- and then the IRS can impose a penalty for failing to pay those taxes, and then prosecute or garnish wages for failing to pay that penalty.

In effect, just as funds are "fungible," so too are the enforcement mechanisms of the IRS fungible so that, in the long run, there are indeed some hugely "negative legal consequences to not buying health insurance."

But if one doesn't want to pay the RobertsTax for not owning health insurance, the way to circumvent the problem Hillyer addresses supra is to simply adjust one's payroll withholding and/or quarterly payments so that one owes the IRS on April 15. And this is all perfectly legal. As long as one owes the IRS less than $1,000 on April 15, one isn't supposed to get a penalty for underpayment. (Taxpayers ought to stop giving the feds interest-free "payday loans" anyway. We should engineer our payments over the tax year so that we don't have a refund coming. Being "overpaid" on Tax Day is for chumps.) In short, make sure you owe on April 15 if you don't want to pay the RobertsTax.

A July 30 blog by Sarah Kliff at the Washington Post also serves to perpetuate our little factoid. Its headline: "The individual mandate is constitutional. But will people actually comply?" To answer that, Kliff cites a colleague who went to Oklahoma:

The idea that the federal government will persuade reluctant people here to get insurance elicited head-shaking chuckles at Cattlemen's Steakhouse, an iconic old restaurant in the Stockyards City neighborhood, which is lined with street banners reading "Where the Wild West still lives."

Compliance with ObamaCare is going to be a problem in states like Oklahoma, "where a quarter of the population fails to comply with the requirement to purchase car insurance." It's doubtful they'll cotton to the RobertsTax, either.

Perhaps the media's factoid that the mandate was found constitutional can be seen as a form of shorthand; even legal minds have alleged that "the mandate survived" or "was upheld" or recast "as merely a tax." But that's shortsighted. The subtext of the media's reports on ObamaCare is that it was given a clean bill of health. It was not. One isn't being a tedious stickler on some narrow point in semantics to insist on a modicum of accuracy in media reports about a law that affects one-sixth of the American economy.

On the penultimate page of his opinion, Justice Roberts wrote: "The Affordable Care Act is constitutional in part and unconstitutional in part." Just so, one can reasonably assert that Roberts' ruling is correct in part and incorrect in part. It is correct in its findings on the Commerce Clause and on Medicaid expansion and incorrect in letting the Act stand. Because the Act was unconstitutional on two key points but didn't have a severability clause, the Court could have justly struck down the entire Act. Instead, Roberts chose to "re-rationalize" the Act. At Volokh Conspiracy, a group blog of mostly law professors, Randy Barnett writes that Roberts had to bend "himself into a pretzel to uphold a law." (Articles at Volokh on the individual mandate can be found in this archive.)

There are more constitutional challenges to ObamaCare headed for the Supremes, including cases that involve the First Amendment. Those cases should be fast-tracked. For if Roberts wakes up and begins to understand the violence he's done to the Constitution, he might unbend himself from being a pretzel and undo the harm. To help Roberts understand his error, start using the term "RobertsTax."

Jon N. Hall is a programmer/analyst from Kansas City. 

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