Message to GOP: It’s Not a Tax

By Betsy McCaughey

Republican politicians, including presidential contender Mitt Romney, should stop calling the ObamaCare penalty a tax. It is not a tax.

Calling it a tax legitimizes Chief Justice John Roberts’ twisted decision, adding credibility to the dangerous notion that Congress can tax us to force us to do almost anything. That’s too high a price to pay for scoring political points against President Obama as a tax-hiker.

No one who read the Affordable Care Act would accept Roberts’ claim that the penalty is a tax. But of course, few people have read the Act. How could they? A law that is 2,572 pages gives the public the runaround. It’s undemocratic. Politicians slip in pork barrel spending and self-serving privileges.

In this case, the Obama administration lawyers covered their bases in court by calling the penalty for not having insurance a tax, in case it would not squeak through as an exercise of Congress’ commerce power.

Section 5000A of the law, imposing a penalty for not having government-prescribed insurance, uses the term “penalty” consistently and never uses the word “tax.” Not that Congress was shy about calling a tax a tax. There are some 20 new taxes or tax hikes in the law, and each is called a tax.

There is no ambiguity about the taxes on medical devices, tanning salon services, the sale of your home or business, and high cost employer-sponsored health coverage. In contrast, the mandate penalty is intended to compel everyone to have insurance, and if it succeeded, there would be no revenue at all.

Every lower federal court rejected the Obama lawyers’ backup argument that the penalty is a tax. “Courts, which have otherwise reached sharply divergent conclusions on the constitutionality of the individual mandate, have spoken on this issue with clarion uniformity,” said the 11th Circuit Court of Appeals.

On March 23, during the Supreme Court’s oral arguments on the individual mandate, Justice Elena Kagan said she was skeptical that the penalty could be a tax. “Congress determinedly said this is not a tax.”

Justice Antonin Scalia raised the question, “is this a tax or not a tax? The president didn’t think it was.” Scalia confessed that having to read the entire law — all 2,572 pages — would amount to a violation of the 8th Amendment’s ban on cruel and unusual punishment.

Nothing in the law suggests that the penalty for not having insurance is a tax. But Justice Roberts rewrote the law to reach the conclusion he desired. That would have been harder to do if the law had been 20 pages in plain English.

Soon after Roberts’ ruling, the White House declared: “The law is clear. It’s called a penalty.” More political acrobatics. The president doesn’t want to be accused of raising taxes on the middle class, and three quarters of those expected to pay the penalty will have household incomes below $120,000 according to the Congressional Budget Office.

No law over two thousand pages is clear. It allows politicians, and unfortunately even judges, to play games with us.

It’s no surprise that Romney is flip-flopping with the other politicians. After first taking the correct position, insisting the mandate cannot be justified as a use of the taxing power, he fell in line with the GOP and said, “The Supreme Court has the final word, and their final word is that ObamaCare is a tax.”

Fortunately, that Supreme Court does not have the last word. We do, at the polls in November. After we elect a new Congress to repeal and replace this monstrous health law, we should insist that any new legislation be 20 pages in plain English and that members of Congress read it before voting.

Twenty pages should be enough. The framers established the entire federal government in just 18.

McCaughey is a former lieutenant governor of New York State. Her own 20-page bill can be found at

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