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Obamacare’s Individual Mandate Returns to the Fore

6:02 AM, Jul 10, 2013 • By JEFFREY H. ANDERSON
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After a year spent largely out of the limelight, Obamacare’s individual mandate is back — as the core symbol of Obamacare’s unprecedented threat to Americans’ liberty.  In truth, the mandate never really left; it simply faded a bit from public view. The means of its reemergence, however, is clear:  the Obama administration’s lawless decision to delay the employer mandate (Obamacare’s requirement that businesses with 50 or more workers offer government-approved health insurance) until a year after Obamacare says it should go into effect.  (Who needs a legislature to make — or change — laws, when we have an executive?)

Obama doctors

That decision — a naked violation of the separation of powers (and hence of the Constitution) — has left a great many people wondering why this administration has chosen to delay the mandate on Big Business, but not the unprecedented mandate on individual Americans.

The answer, presumably, has a lot to do with Big Government’s natural alliance with Big Business (not to mention Big Health).  This is an administration, after all, that has presided over large gains in the Dow Jones Industrial Average, while the percentage of Americans who are employed and the real median American income have both dropped noticeably on its watch.  In other words, this is an administration that has been something of a boon for Wall Street (or at least for 30 large blue-chip companies) and nothing but a bust for Main Street. 

This should hardly be surprising.  The little guy triumphs when exercising the God-given liberty to use his talents and ideas in creative and enterprising ways, under the equalizing protection of the rule of law.  The big guy, meanwhile, often triumphs by hiring teams of lawyers and lobbyists to persuade Congress to pass laws to his liking — or, in this case, to persuade the White House to ignore laws not to his liking.  It is a lot harder for the little guy, or the American people writ large, to get on the White House calendar.

Thus, even under the increasingly arbitrary and malleable exercise of power that is Obamacare, certain things remain fixed.  Among those is the requirement that Americans must buy federally approved health insurance. 

The Obama administration and its Democratic congressional allies claimed to have the authority to impose this burden under Congress’s power to regulate commerce among the several states.  The Supreme Court rejected that novel claim, rightly distinguishing between a power to regulate commerce and a power to compel it.  The individual mandate survives only because a bare five justices, with four others in disagreement, decided that the mandate could plausibly be construed as a tax — albeit a seemingly unprecedented tax on inactivity — which Congress did have the power to impose.  The Court ruled in this manner despite the plain language used in the legislation, and by President Obama (on national TV), conveying that the individual mandate is not a tax.

In upholding the constitutionality of the mandate (as a tax), moreover, the Court couldn’t have been much clearer in noting that it wasn’t saying that the mandate was wise or just, only that it was (barely, and not for the reasons the Democrats argued — and not at all in the eyes of four justices) constitutional.  The opening paragraph of the majority opinion states, “We do not consider whether the Act embodies sound policies.”  Later, it declares, “Members of this Court…possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.”  Its very last words are, “[T]he Court does not express any opinion on the wisdom of the Affordable Care Act [Obamacare].  Under the Constitution, that judgment is reserved to the people.”

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