Michael Gaynor
Shock: Chief Justice Roberts approves President Obama's Obamacare "bait-and-switch"
By Michael Gaynor
June 28, 2012

Bottom line: The voters need to fix this mess by electing Mitt Romney to replace Obama and people such as Wendy Long as United States Senators and Representatives to repeal and replace Obamacare.

The late Chief Justice William Rehnquist must be aghast. One of his former law clerks, now Chief Justice John Roberts, ratified President Obama's "bait-and-switch," casting the critical vote to uphold it under the taxing power, joining the United States Supreme Court's four liberal justices, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, in upholding ObamaCare, instead of Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas in rejecting it as unconstitutional.

Bait-and-switch is a deceptive sales technique that involves advertising a low-priced item to attract customers to a store, then persuading them to buy more expensive goods by failing to have a sufficient supply of the advertised item on hand or by disparaging its quality.

The Obamacare "bait-and-switch" involved insisting that the individual mandate was not a tax until Obamacare was enacted and then challenged in court, then claiming it was a tax after all, even though it was advertised NOT to be a tax.

Talleyrand famously said of the murder of the Duc d'Enghien by Napoleon I, "It was worse than a crime, it was a blunder."

Upholding Obamacare as constitutional on a ground expressly denied as a predicate for it by President Obama was a huge blunder that undermines public confidence in all three braches of the federal government.

Arty Swagdowski: "So let me get this straight, Obama said the individual mandate is constitutional because of the commerce clause and the necessary and proper clause of the Constitution, and that this fine is NOT a tax, and the supreme court says what Obama said was constitutional is not constitutional, and what Obama said was not a tax is a tax. So Obama misinterpreted the Constitution and lied, great."

Arty didn't really mean "great."

If Chief Justice Roberts voted as he did for the sake of the reputation of the United States Supreme Court, he blundered terribly.

The Supreme Court is supposed to provide a check on the executive and legislative branches of the federal government by upholding constitutional principles, not to ratify taxes that are denied to be taxes when they are enacted.

Judicial approval of Obamacare is an affront to the Constitution that especially undermines public confidence in the courts.

Did Chief Justice Roberts realize that the Obama administration had based its claim that Obamacare is constitutional before it was enacted on the Commerce Clause and NOT the taxing power.

Surely he did.

While the liberal media be nicer to him than it otherwise would be?

Of course.

Is THAT a legitimate reason for upholding Obamacare?

Of course not.

Dick Morris:

"The Supreme Court did not let Obama off the hook. By the time the election comes around, it could be lethal.

"The decision makes Obamacare a tax increase that falls primarily on young people and poor people who can't afford it. With the Medicaid provisions struck down, government will not be there to help middle and low-income families who have to pay a huge percentage of their income for insurance or pay a large fine.

"That is not politically attractive, which is why Obama postponed the effective date of this law until after the election."

I think that Morris is right, but that's not a legitimate justification for treating an unconstitutional law as constitutional either.

Putting aside that taxes should not be access for not doing something and that the "logic" of the decision means that the federal government cannot make us eat broccoli but can tax us for not eating it, the decision is contemptible because it permits misrepresentation for political purposes.

Congressman Steve King (Republican-Iowa): "Leading up to today, the lower courts were split on a handful of issues. One issue they were nearly unanimous on was that the individual mandate was not a tax therefore could not be upheld under Congress's power to tax. Today the Supreme Court disagrees with the vast majority of lower court decisions and contradicts President Obama himself, who vehemently denied that the individual mandate was a tax."

When is a tax not a tax? When calling it a tax would mean that it would not be enacted!

Courteous New York Republican/Conservative United States Senate candidate and former Supreme Court law clerk Wendy Long:

"Although I have yet to read fully all the opinions in this complicated ruling, I respectfully disagree that Obamacare's individual mandate is justified as a tax.

"But now that the Court majority has called it a 'tax,' as New York's next United States Senator, I will work to repeal this tax and replace it with a sensible plan to improve health insurance coverage for all Americans.

"Today's decision simply means that the fight to repeal Obamacare, and to lower all other taxes, rests with the elected representatives of the people, not with the Court. It is critically important now, more than ever, to elect Mitt Romney as President, and to elect U.S. Senators and members of Congress who will repeal and replace Obamacare. Otherwise, the Obamacare taxes will continue to suppress our economy, kill jobs, and damage American health care.

"Most New Yorkers, like all Americans, do not support the 'Affordable Care Act.' It is actually the opposite of 'affordable,' and it must be repealed."

Bottom line: The voters need to fix this mess by electing Mitt Romney to replace Obama and people such as Wendy Long as United States Senators and Representatives to repeal and replace Obamacare.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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