Analysts on the left and right are misreading his bottom line constitutional analysis by mixing up two different concepts. It could be pivotal to tomorrow's decision from the Supremes.
by Paul Goldman
While I still believe the Fox News article written by Professor Rozell and myself offers the right constitutional approach - namely, the Supreme Court has no business deciding this case in the middle of a presidential election, two years before the key part of the President's health care law goes into effect - it appears we are alone among constitutional writers on this score.
Assuming, therefore, that the Supremes are intent on doing something they have not done since their foolhardy 1936 efforts to derail FDR's re-election campaign (they tried to further gut his New Deal, but this only helped FDR win a landslide) put the Court's legitimacy up for grabs, it raises this question: Will the Court side with a basic construct proposed by Mr. Cuccinelli?
Based on his legal case and our conversations, it seems his basic argument - admittedly reduced here to short strokes - is misunderstood by both the left and the right.
Mr. Cuccinelli's position is this: Obamacare - which is now the term used by both sides - would be CONSTITUTIONAL had the Congress passed it under the taxing power. This isn't to say he would like the policy, or the fact the Constitution gives the Congress and President such enormous power. But it is what it is relative to the Constitution.
Indeed, the Solicitor General tried to turn the penalty for not having insurance - the key part to the individual mandate without a penalty then what in practical effect would it all amount to?) - into a taxing power argument for this very reason. He gets it.
Moreover, the Congress understood this duality from the start, as did the White House. But the politics dictated staying away from calling anything a tax, even though it was to be administered by the IRS like a tax, if you ask me.
Medicare, which is based on the payroll tax, is constitutional without any question. Moreover, the Supreme Court has the authority to so declare the controversial penalty a tax under the theory a "rose by any other name is still a rose." The Justices aren't constitutionally bound to accept what the Congress said it was doing.
Take the reverse situation. Suppose the Congress were to decide to call something a tax because it was really a penalty, but illegal under the other parts of the Constitution. Would the Court be bound to go along with this sleight of hand? No.
SO THE SUPREMES COULD SAY THE PENATLY IS REALLY A TAX.
However, in that case, the 1867 Anti-Injunction Act comes into play. This post-Civil War law intended to make it impossible for the courts to decide on the constitutionality of such a levy until a taxpayer actually had to start paying it.
Since, in the case of "Obamacare," this doesn't occur until 2014, then under the taxing power theory, the Supremes have to refuse to decide the case tomorrow. Moreover, conservatives do regard the penalties as TAXES IN DISGUISE. So, in that sense, the conservative position, when extended logically, would have the Supremes announce tomorrow they are prohibited by federal law from deciding the case, unless of course they want to overrule the Anti-Injunction Act. But they have already declared that to be constitutional. (also, a respected Circuit Court found the Anti-Injunction Act to be controlling when asked to rule on an Obamacare appeal).
The tax vs penalty analysis is of course not unique to Cuccinelli, nor was he the first to make it in terms of the health care debate. But it is an aspect to his legal analysis which seems to have been mostly overlooked by the left and the right. In this context, it should be pointed out that the original approach to "universal" health care starting with FDR and Truman envisioned it as part of the payroll tax system.
BOTTOM LINE: The federal government, organized for the general welfare of all the people, thus has the constitutional power - as intended by the Founders - to provide for such health care. This can not be questioned by any sensible analysis. But did the Congress do it correctly as a matter of law? That's a different question.
It is important to keep the two concepts in mind as the discussion goes viral tomorrow depending on what the Court decides.