Streetcar Line

Obamacare’s Hideous History, Recounted

This law remains utterly illegitimate.

By 7.3.12

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Amid John Roberts' craven surrender to "the political branches" on Obamacare -- a bizarre capitulation, at that, since Roberts honored a statute that he hallucinated, but neither Congress nor the president authored nor authorized -- Americans should remember just how many rules, standards, and traditions had to be twisted or bulldozed in order for the [un]Affordable Care Act to become law.

For Obamacare to be enacted in the first place required each of more than a dozen, highly unlikely or even suspect, occurrences or actions. It then took some serious constitutional hocus pocus for it to survive in court. Consider the awful litany:

First, rogue prosecutors, drunk with bloodlust, had to break all sorts of rules in order to secure the conviction of Alaska's U.S. Sen. Ted Stevens. (Stevens, in his hubris, also had to insist on a speedy trial he thought would clear his name before the election of 2008, when in fact it resulted in the conviction that sealed his electoral fate.) Also, Judge Emmet Sullivan, a no-nonsense jurist, had to decide not to declare a mistrial before the verdict despite growing evidence of prosecutorial misconduct. (Sullivan didn't necessarily err; he just didn't have enough proof of misconduct yet. When it came, post-trial, he cracked down fairly hard on the scofflaws.) Had Stevens been re-elected, he presumably would never have voted for Obamacare, which therefore would have failed by one vote… even if none of the other, subsequent abominations (as we will discuss) were forestalled.

Second, the Democrats had to succeed in flat-out stealing the election for a Minnesota-based U.S. Senate seat from Republican Norm Coleman. In addition to securing the counting of highly questionable "votes" throughout the recount process, the Democrats also likely benefited from the illegal votes of hundreds of felons. Had Coleman been re-elected, there is no way he would have voted for Obamacare, which therefore -- cue the refrain -- would have failed by one vote… even if none of the other, subsequent abominations (as we will discuss) were forestalled.

Third (although chronologically first), the Washington Post had to succeed in its unprecedentedly and viciously unfair coverage of the U.S. Senate race in Virginia, both capitalizing on Sen. George Allen's missteps (he ran a terrible campaign) and skewing the "news" relentlessly against him even when he didn't make mistakes. Had he not lost by a tiny 8,805-vote margin, there is no way he would have voted for Obamacare, which therefore -- cue the refrain -- would have failed by one vote… even if none of the other, subsequent abominations (as we will discuss) were forestalled.

(Parenthetically, without as direct a link either to skullduggery or to a the clearly relevant time frame, would-be Obamacare opponents also likely would have been in office in several other states under ordinary circumstances. In New Jersey, liberal Democrat Frank Lautenberg had returned to the Senate in 2002 due to a logically and legally unsupportable state supreme court ruling allowing him to replace Robert Torricelli on the ballot after the legal deadline. In Montana, Republicans shot themselves in the foot in 2006 by not pressuring incumbent Conrad Burns into retirement following his association with the Jack Abramoff scandal; he lost an otherwise safe seat by less than one percent of the vote. And it didn't help that in Oregon, incumbent Republican Gordon Smith lost another close race largely due to votes siphoned away from him -- perfectly legitimately, but still frustratingly -- by a candidate of the Constitution Party.)

Fourth, there clearly were good reasons to believe Sens. Ben Nelson and Mary Landrieu would refuse to keep the Obamacare legislation alive had it not been for (respectively) the infamous Cornhusker Kickback and Louisiana Purchase agreements. Granted, horse-trading is always part of politics (e.g.: Louisiana's John Breaux handing a key vote to Ronald Reagan after declaring "my vote isn't for sale, but it is for rent"), but these special Obamacare deals smelled particularly rancid. (For that matter, Democrats had to promise more compromise than they ever intended to deliver in order to secure support in committee from Republican Olympia Snowe, who voted to keep it alive only to have her hopes forsaken by the final shape of the bill. Yes, the bill would have passed committee anyway, but it's also incontrovertible that some Democrats in both chambers excused later procedural votes for the package by describing it as "bipartisan," based solely on Snowe's committee vote.)

Fifth, Harry Reid had to play parliamentary hardball (and Mitch McConnell had to let him get away with it) in order to force the key vote on initial Senate passage before the Senate left for Christmas break of 2009 -- whereas if senators had gone home for Christmas and heard first-hand the intensity of public opposition, not even the various Kickbacks and Purchases (and other special deals) would have sufficed to keep some of the senators on board for the one-vote victory.

Sixth, the Senate had to pull other procedural rabbits from its hat in order to make up for not letting the House originate a revenue-raising bill and to make up for the loss of Massachusetts' Senate seat to Scott Brown. Chief among these was taking an orphan House bill and stripping everything from the bill but the number, replacing the entire text with the text of Obamacare. Again, this is legal, but hardly an admirable way to force through a bill of this size and importance on a party-line vote.

Seventh, Arlen Specter abandoned the entire five previous years of his public pledges and posturing -- pledges without which he never would have been re-elected in 2004 -- by switching parties in a nakedly unprincipled bid to somehow, some way hold onto power. Had he been running for re-election in a Republican primary rather than a Democratic one, there is no way on Earth he would have voted for the health-care monstrosity.

Eighth, Nancy Pelosi and Harry Reid had to orchestrate the most dishonest set of bait-and-switch procedural maneuvers seen in Congress in decades in order to secure shifting bare-majorities for elements of ObamaCare, so as to give their own members various degrees of deniability for passage of the whole -- which, clearly, could not and would not have passed in a straight-up vote held without any subterfuge.

Ninth, the administration and congressional Democrats had to use major legerdemain to avoid budgetary procedural shoals by mis-labeling some spending, and double-counting some savings, in order to claim to be not busting budget rules that rather clearly were actually being busted. Had the Congressional Budget Office been able to officially (and accurately) project the bills as budget busters, Democrats would never have been able to muster the super-majorities needed for passage.

Tenth, Barack Obama had to twist more arms than a championship wrestler in order to get enough House members in line to bring passage of the bill even within striking range.

Then, eleventh, he had to fool enough pro-life Democrats (who had to be stupid enough or cynical enough to let themselves be "fooled") into believing that an executive order from him could carry enough of the force of law to ensure that no public funds would be used for abortions, and that his administration would actually observe both the letter and the spirit of that order. (The final, official House tally was 219-212, but the de facto passage was by only one vote -- several of the "aye" votes would not have switched in that direction at the last minute unless they had enough "cover" to say they weren't the single vote that pushed it over the top.)

Twelfth, as has been well documented, the administration and Democrats had to argue first that the individual mandate's penalty was not a tax (in order to round up congressional votes), then had to argue in some courts that it was a tax (for some purposes) and in other courts that it wasn't a tax (for other purposes), and then have to use the "it's a tax" argument as a Hail-Mary afterthought in its Supreme Court argument even while knowing full well that if they somehow won the case on that basis, they would immediately disavow in public the very argument they used to win the case.

That, therefore, was the rancid sausage John Roberts apparently felt he had to salvage in supposed deference to the sanctity of the legislative process.

Even then, with the law having already experienced numerous near-death experiences and survived only on the basis of trickery and sheer dishonesty, this unconstitutional and illegitimate law -- and a deeply unpopular one with a majority of the public -- was on its death-bed again before Roberts lost his nerve. Roberts reportedly sided originally with those who would kill the law in its entirety. Logically, legally, constitutionally, he knew the law did not pass muster. Logically, legally, constitutionally, he also knew that the mandate's penalty in particular was not a tax. That's how he voted in conference, and that's what he was prepared to announce -- until Obama's pressure and public scolding from some editorial boards made Roberts blink.

So, in illegitimate moves number thirteen and fourteen, Roberts both said that 13) something not called a tax and not located in the revenue section of the bill and not really resembling a tax in most respects, and not amounting to a tax according to the "most straightforward" or "most natural" reading of the law, could nevertheless be assumed to be a tax for constitutional purposes if he squinted hard enough, used his imagination, and climbed through Alice's rabbit hole; and that 14) such a tax would be constitutionally legitimate even though it fits none of the definitions of acceptable taxes provided for in the Constitution's text itself.

As noted eloquently enough in so many other columns that no elaborate re-explanations will be attempted here, it is also worth noting that Roberts also had to strain for constitutional "support" by citing a mere aphorism of a private letter from Ben Franklin, with a highly pregnant ellipse to make the quote applicable at all; and that he had to wildly conflate tax breaks or incentives on ownership or activity with a new tax on inactivity (as if the two -- a tax on the one hand, and a tax exemption on the other -- are among the same species and breed of beast).

In sum, then, this most sweeping of economic legislation ever passed by Congress has survived every step of the process by trickery, dishonesty, or breathtaking sophistry, while being defibrillated back into a heartbeat several times only with the aid of hack science and dark arts worthy of an illicit union between Dr. Frankenstein and a skilled necromancer.

There will be time aplenty in the coming months to take apart Roberts' slipshod, intellectually illegitimate opinion clause by clause and argument by argument. There will be time enough to show that his transparent hackery quite devastatingly undermined the very "legitimacy" of the court that he made such a purely political decision to try to protect.

For now, though, it is worth studying the foregoing litany of injustices, committing it to memory, and letting its lessons burn with a cold fury in our brains and souls -- a well-considered and purposeful fury that impels us all to do everything necessary to counteract the baleful effects of this abomination, and to make sure such a creature never raises its horrendous head again. This law is (figuratively speaking) the spawn of vile political beasts. It must be decapitated.

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About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.