- The Washington Times - Wednesday, July 4, 2012

Several issues are being distorted in the wake of the Supreme Court’s contradictory, backdoor ruling that up-held President Obama’s health care law on a disputed word definition. Others are virtually absent from the discussion, such as who will pay the onerous penalty tax and what it will cost them if the uninsured refuse to obey Mr. Obama’s order to purchase medical insurance?

It turns out, the court’s decision means Mr. Obama’s tax will fall most heavily on lower- to middle-income people whom he has vowed to shield from his proposed tax increases. It will be a lot costlier than you think, but more on that in a moment.

First, it’s not exactly true, as often misreported on the network nightly news, that the high court found that the law did not violate the Constitution.

In fact, the majority opinion written by Chief Justice John G. Roberts Jr. specifically ruled that Congress could not order uninsured Americans to buy health insurance under the commerce clause of the Constitution - the legal grounds on which the Democrats and Mr. Obama built their statist plan and defended it in oral arguments before the court. “The federal government does not have the power to order people to buy health insurance,” Justice Roberts wrote in the 5-4 decision.

Indeed, Justice Roberts went to great lengths to say he flatly disagreed with proponents of the law who argued that the commerce clause gave them the authority to force citizens “to act as the government would have them act.”

“This is not the country the Framers of our Constitution envisioned,” he wrote. “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.”

If there was any victory in this ruling for the opponents of big, unrestricted government, it was the court’s ruling that this time, Congress‘ use of the commerce clause to poke its nose into every aspect of the nation’s commercial life had gone too far.

“If it had declared that this provision could be used to compel private citizens to engage in commerce so the federal government could regulate it, the court would have put our basic freedom as Americans at risk,” writes Grace-Marie Turner, a noted health care analyst.

But even though Justice Roberts said, “The federal government does not have the power to order people to buy health insurance,” he acknowledged that it clearly had the power to tax - in this case, the power to imperiously “impose a tax on those without health insurance,” one of 20 new and onerous taxes in the Obamacare law.

Mr. Obama and the Democrats fiercely reject the notion that the punishment they would inflict on Americans who will not do what they are ordered to do is a tax. They still insist it is a penalty or fine, no more of an imposition than the charge bill collectors may impose for late payment.

Besides, if their punishment were defined as a tax, crafty White House strategists feared Republicans would use it against them in the upcoming election. But a tax it is, the chief justice ruled, handing the GOP a lethal political issue in the presidential and senatorial elections on Nov. 6.

Not only is it a tax, but it’s one that will be levied on people who can afford neither to buy health insurance nor to pay an annual tax to the government.

Certain Americans will be exempt from the tax, such as those who would have to shell out more than 8 percent of their income for a health care policy, those who fall below the tax threshold, those who are exempt for their religious beliefs, members of Indian tribes and those in prison.

But the rest of us without insurance will get a tax bill from the Internal Revenue Service - $95 in 2014, $325 in 2015 and $695 in 2016, with annual tax increases after that.

Nearly 4 million uninsured Americans will pay this tax, according to the nonpartisan Congressional Budget Office, though there are estimates running higher than that.

In his popular economics blog, Stanford University economist Keith Hennessey points out that according to CBO’s analysis, “More than three-fourths of them are not rich.”

“CBO says that under this law in 2016, there will be 400,000 people below the poverty line who will be uninsured and pay the tax,” Mr. Hennessey wrote on June 28.

Moreover, if you add in the groups with income up to 500 percent of poverty in CBO’s analysis, “we see that under this law there will be, in 2016, 3 million people with incomes less than $59,000 (singles) or $120,000 (families of four) who will be uninsured and have to pay the tax,” he adds.

“These 3 million people are not rich, they will be uninsured, and they will be required to pay higher taxes. The tax increases on these people … clearly violate the president’s pledge not to raise taxes on anyone earning less than $250,000,” he reminds us.

There is the increasing likelihood that many more Americans will choose to pay the fine rather than buy an insurance policy, which will be much more costly under the Obama law. A typical family health insurance policy would cost them $20,000 a year, Ms. Turner says.

Meantime, Justice Roberts may have found a clever way to alter the defined terms of the law, but that does not lessen its unjust assault on economic freedom.

Justice Anthony M. Kennedy, who wrote the dissenting opinion for the four justices who wanted the law struck down in its entirety, took aim at Justice Roberts‘ legal wordplay. “[W]hat Congress called a ‘penalty,’ the court calls a tax. What Congress called a ‘requirement,’ the court calls an option … in short, the court imposes a tax when Congress deliberately rejected a tax.”

Now the fate of Obamacare rests in the hands of the voters. If the Republicans win back the White House and take control of the Senate, this law surely will be repealed.

Donald Lambro is a syndicated columnist and former chief political correspondent for The Washington Times.