Chief Justice Roberts' neat tricks

Chief Justice John Roberts did something I like in regards to the Affordable Care Act, aka Obamacare - it was certainly not a dirty trick, but a fairly neat one in its cleverness and simplicity.

After a few days of celebrating, chest-thumping, and self-congratulation, the hangover from the people who wanted ACA upheld will leave them thinking about something else.  "ACA is upheld, but what did they say about that tax thingy?"

In an election year, raising taxes in an election year is an election killer.  Walter Mondale, when running for President in 1984 against Reagan, stated thus when nominated by his party: "By the end of my first term, I will reduce the Reagan budget deficit by two-thirds. Let's tell the truth. It must be done, it must be done. Mr. Reagan will raise taxes, and so will I. He won't tell you. I just did."

Little wonder why Mondale was trounced; Reagan won 49 states; Mondale his own home state of Minnesota plus the District of Columbia.  525-13 was the soundest trouncing of a Presidential candidate since 1936.

If you were running for office, would you want to celebrate imposing tax increase on those who don't have health insurance?  If a person doesn't obtain health insurance in the first year of ACA in 2014, they pay a $95 per year/1% of income fine.  Later on, it increases to $220/2.5% of income fine.  Multiply that by hundreds of millions of people who can't afford or choose not to purchase health insurance and you have the biggest tax increase in American history, as the ACA will be funded not just with people who elect to pay the fine, but people who might be fined for not having adequate health insurance as defined by the government.  Update 7/1/2012: Terry Keenan of the New York Post has more - including fines for small businesses paying anywhere from $40,000 to $140,000 for not supplying health insurance to workers.

Chief Justice Roberts' tricks?  First, he took away Obama's ability to implement the ACA through executive order, which might have happened if the ACA were struck down and caused even more problems (executive branch usurping the judicial branch would have caused a huge firestorm).  Second, he gave Obama and the remaining Democrats the distasteful task of telling voters why the ACA must be funded through taxes.  Voters who brought in the Republicans in 2010 through a "shellacking" will now likely make sure those who mention ACA as "good for them" be drummed out of office.  Third, and most importantly, Roberts assured the public that judicial activism - ruling from the bench - does not replace or circumvent the right to vote to strike down laws.

Hence, you could be a judge who is hell-bound to rule for their own whims and biases, yet it ultimately comes down to the voters who will make the final, absolute decision to uphold or strike down a law, directly through referendum or indirectly through voting in someone who will strike down the laws in question.  That's what voters did with Scott Brown in 2010 and with Congress months later - they took their displeasure to the ballot box.

Chief Justice Roberts handed the Obama administration a victory - but not a victory they want to promote.  In effect, Chief Justice Roberts said, "Try to defend your law as a tax increase on every single American - and don't be surprised if more voters decide to speak loudly through the ballot box."

Full disclosure: I work for a health insurance company.  My opinions do not reflect those of my company and are wholly my own.