The “Free Riders” Now Have A Political Party To Defend Them

All weekend long, I heard Republicans and right-wing pundits essentially suggest what Rush Limbaugh falsely claimed last Thursday:

From Limbaugh’s monologue:

What has been upheld here is fraud, and the Internal Revenue Service has just become Barack Obama’s domestic army.  That is what we face now.  We were deceived.  Obamacare was a lie.  It was a stealth tax on all Americans, and nobody knew it until today.  Not officially.  Obama told George Stephanopoulos it wasn’t a tax.  And Stephanopoulos was trouble-making for trying to suggest otherwise.

Get it? The Supreme Court held that the Affordable Care Act’s mandate “was a stealth tax on all Americans.” On all Americans. That’s the way Republicans are spinning the ruling, as they once again smear Democrats as incorrigible taxers, particularly taxers of the middle class.

And many journalists let them get away with it, including George Stephanopolous, who has been on the receiving end of a lot of right-wing attacks for being in the tank for Democrats. Watching him do his journalism is sometimes painful. It’s as if he is trying to avoid any criticism at all from conservatives.

On ABC’s This Week on Sunday, Stephanopolous grilled White House chief of staff Jack Lew over what to call failure to comply with the ACA’s health care mandate. Lew wanted to call it a penalty, which it is, and Stephanopolous insisted that Lew acknowledge it was in fact a tax. Stephanopolous was so proud of his aggressiveness against a White House staffer that he posted this blog:

Good for Stephanopolous that he tried to pin down a spokesman for President Obama on something the journalist thought important: whether failure to comply with the ACA’s mandate engenders a tax or a penalty. But by doing so, Stephanopolous was aiding the obvious Republican effort to falsely attack Democrats for raising taxes on the working and middle class, an effort given new and possibly everlasting life by the Supreme Court’s ruling on Thursday.

But why didn’t Stephanopolous’ aggressiveness work both ways on this issue? GOP budget guru Paul Ryan appeared on the same program and our fearless journalist was, uh, suddenly not that interested in whether the mandate is a penalty or a tax. Here is the part of their exchange in which Ryan brings up the mandate:

RYAN: No. Look — look at the hypocrisy. The president on your show said this is not a tax. Then he sent his solicitor general to the Supreme Court to argue that it is a tax in order to get this past the Supreme Court.

The broken promises and the hypocrisy are becoming breathtaking from the president who says one thing to get this past Congress and then another thing to get it past the Supreme Court. Look, I was here fighting this bill, George, in the last session of Congress. Believe me, if this was brought to the public as a tax, there’s no way this law would have passed into law in the first place. That’s what’s so frustrating and disappointing with this law.

STEPHANOPOULOS: I think you may be right about that…

That, my friends, is what happens to journalists who are afraid they will get charged with friendliness toward the president or Democrats in general. Why didn’t Stephanopolous attempt to pin Ryan down on what he would call failure to comply with the mandate? Is it a tax or is it a penalty, Mr. Ryan?

Since Ryan said he agreed “with the dissenting judges” in the case—who were emphatic about calling it a penalty—why didn’t he get asked if he in fact thought it was a penalty? Or whether he agreed with Mitch McConnell when he said,

Well, the Supreme Court has spoken. This law is a tax. The bill was sold to the American people on a deception.

Is it really a tax, Mr. Ryan? Why didn’t Stephanopolous make him contradict McConnell by acknowledging he doesn’t believe it is a tax?

Or why didn’t Stephanopolous ask Ryan—who may be Romney’s VP—what the same mandate was called in Massachusetts, when Mittens was selling it to the folks there? While governor, Romney did not call the mandate—designed to get something out of those he called “free riders“—a tax, as Romney senior adviser Eric Fehrnstrom admitted to Chuck Todd on MSNBC this morning, as Todd pressed him on the point:

TODD: What did you call it in Massachusetts? Were you guys calling it a tax or penalty?

FEHRNSTROM: A penalty.

Fehnrnstrom said a bit later:

The governor has consistently described the mandate in Masschusetts as a penalty.

Then Todd pressed on:

TODD: What you just said is that Governor Romney agrees it is not a tax. You guys called it a penalty.

FEHRNSTROM: The governor disagreed with the ruling of the court. He agreed with the dissent that was written by Justice Scalia, which very clearly stated that the mandate was not a tax.

TODD: So, I think we’re talking around each other. The governor does not believe the mandate is a tax? That’s what you’re saying?

FEHRNSTROM: The governor believes that what we put in place in Massachusetts was a penalty and he disagrees with the Court’s ruling that the mandate was a tax.

TODD: So, he agrees with the President that you shouldn’t call the tax penalty a tax, you should call it a penalty or fee or fine?

FEHRNSTROM: That’s correct…

Republicans, of course, want to have it both ways. They want to embrace Justice Scalia and the dissenters in the ACA case—who claim that John Roberts simply rewrote the statute, “imposing a tax through judicial legislation” that “inverts the constitutional scheme”—while they campaign against Obama and Democrats as imposing a new “tax” on the American people.

The truth is that whatever one wants to call the mandate—how about a Scab Tax?—Romney and Republicans know that one-percent or less of the American people will ever pay it. And those folks, “free riders” as Romney has so famously called them, who want to have something for nothing, now have a champion in Rush, Romney, and the Republican Party.



  1. ansonburlingame

     /  July 2, 2012

    To all,

    Of course I have been waiting for Duane’s views on this point, is ACA a “tax” or what. But Duane seems to avoid providing his own views on the subject and relies on quotes from others. I suppose, trying to glean Duane’s view, he would call the payment to the governent for those that still do not purchase private HC insurance a “penalty” and NOT a “tax”.

    Fine. That is simple semantics in my view.

    But semantics aside. here is the result of the Court ruling and ACA as approved two years ago, at least in my view.

    Some 50 million folks today have no HC insurance. By law everyone of them, all 50 million MUST now purchase HC insurance with money out of their own pockets or money provided from a government subsidy (money which has yet to be budgeted for). If they refuse to purchase such insurance they must pay the government money, again, out of their own pockets. Call it a penalty or tax as far as I am concerned. But at least call it government force to cause some Americans to spend more money, money they had previously chosen not to spend.

    50 million Americans are going to HAVE to spend more money or be held accountable to the federal government thru the IRS (not any “police”). Refuse to comply with the IRS and of course individuals can then wind up in a legal court of law as well.

    So how much money, individually, are we talking about for those 50 million or so Americans. More than a dollar and less than some much higher amount is all I can tell right now. NO ONE knows right now the real cost of such insurance in 2014 or the amount of “penalty” or tax that must be paid.

    Finally, Duane makes a big deal of the Limbaugh term “All Americans” (will be ACA). I “think” (but again am not sure) that is not the case. With ACA as it is currently written my Medicare costs will not go up as far as I can tell, at least not because of ACA as it is now written into law. It MAY go up in the future however, but who knows for sure right now.

    Finally, Duane says Republicans or conservatives or etc. call “it” (ACA) lots of terrible things including a “tax on the middle class”. He also thinks that conservatives side with the dissenters to that Court ruling.

    Well not this conservative in either case. I support the Supreme Court ruling. Why? Because Congress does have the power to tax all or any part of Americans, in my view, as long as it does so democractically. What is a “tax”? By and large it is a law that tells me I MUST spend money out of my pocket, usually to the “government”. In this case it is a requirement to spend money and give it to private HC insurance provider instead!!!

    The Court also said that politically Congress, in the case of ACA does not even have to call it a tax. Instead the Court simply said if it looks like, smells like, walks like or seems in the Court’s view to be a TAX (or “duck” for that matter) then it is a tax, legally, but not politically.

    No matter how you chose to call it or “cut it”, ACA as currently written is going to levy a direct demand on at least 50 million (or so) Americans to spend more money (on HC insurance). It MAY indirectly cause other Americans to spend more money as well but none of us know that for now.

    And who exactly are those 50 million Americans? In my view they are the youngest and poorest (by a large) of all Amerians, those currently not paying for HC insurance.

    Combine the two, government FORCE causing people to spend more money that they previously wanted NOT to spend and “picking on” the youngest and poorest Americans to do so is one helluva lousy political maneuver, in my view.

    And my guess at least 50 million Americans are mad as hell or will be when the bills come due in 2014.



  2. Duane,

    I’m no lawyer, nor a Constitutional scholar, though I do make an effort to get educated about the Constitution. That said, I have found that when it comes to the judicial review of a particular statute, the general rule is to first determine the “legislative intent.” However, SCOTUS did not apply this standard to the ACA’s “individual mandate.” I haven’t read the Congressional Record to review the debate when the ACA was moving through Congress, but I’m pretty sure the “intent” was to impose a “penalty” on those who did not buy health insurance, which penalty was understood to be allowed under the Commerce Clause and collected via Form 1040. I’m pretty sure that very few Congressmen on either side of the isle voted on the ACA (for or against) thinking the mandate was actually a tax.

    Nonetheless, here comes the Honorable Chief Justice of SCOTUS saying, in effect, the legislative intent of the penalty part of the individual mandate was really a tax. The Congress just forgot, that’s all. But to show that the Court is not going to be divided by politics going forward, Roberts left his common sense, along with the basics of jurisprudence, at the door. Roberts thus intended the penalty be considered a tax and to hell with the intent of Congress. Through highly tortured and bewildering logic, Roberts writes:

    “….it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.”

    Well, John, taxes on inactivity is not abundantly clear at all. Another general rule in the law, as explained to me long ago by a very wise City Attorney, is that you can’t do indirectly what you can’t do directly. But that is exactly what Roberts and the Court have done in this ruling. I won’t go into the details here but suffice to say a capitation tax and an income tax are two completely different things. The Conservative think tank, “The Heritage Foundation,” has a really good analysis of this issue at:

    I guess the bottom line for me is that taxes, capitation or income, do not and can not apply to something you don’t have. I might get a tax break if I buy a highly fuel efficient car and I might have to pay a tax penalty for buying a gas guzzling luxury car. But there are no tax consequences if I don’t own a car meeting either of those criteria. Likewise, there should be no tax consequences for not owning a health insurance policy. Roberts agues taxes apply to mere existence. To be consistent then, if I have no health policy, by definition such policy doesn’t exist for me, ergo it can’t be taxed.

    Of course this should not be surprising. After all, this is the same court that gave us “Citizens United.” As Alice in Wonderland said, “It just gets curiouser a curiouser.” And scarier and scarier.



    • Herb,

      Look, I’m no fan of Roberts and I’m no fan of his ruling. For whatever reason, he hitched himself to a tertiary argument the government presented and off he went, whether it was to further the long-term conservative agenda (as George Will argues) or whether it was to protect the integrity of the court (which is still in serious danger) or whether it was to protect his own legacy (history will find him a neanderthal, if we wait long enough, in my opinion).

      The penalty for not purchasing insurance is not a tax, as Democrats argued at the time. But I can see where it could be construed as one, as Republicans argued when the ACA was being debated (how else could there have been a “deception,” unless one side claimed it wasn’t a tax and one side did?). What essentially happened was that Roberts bought the argument Republicans made in 2009 that the mandate was a tax.

      Now we can say that it has been ruled a tax in a constitutional sense, in that it is within the government’s constitutional taxing power. That doesn’t have to mean that it is a traditional tax, like an income tax or a poll tax, only that it falls within an interpretation of the government’s powers under the Constitution. As I said, I don’t necessarily agree with it, as I believe the mandate should have been ruled constitutional under the Commerce Clause, however technically challenging it was to understand and explain that. I believe such things because I don’t have my head in the 18th century. I am breathing 21st century air.

      Finally, odd that you linked to The Heritage Foundation for a negative discussion of the individual mandate, which first introduced the idea to the wider public. More on that later.



      • Duane,

        My dad, a lawyer for 70 years, once told me that it only takes eight people in this country to make a law: One District Court judge, two Circuit Court judges, and five Supreme Court Justices. We’ve seen this happen time and again throughout our history. In Marbury v. Madison, Chief Justice Marshall declared that the Court was the final arbiter of what the Constitution means (although some legal scholars disagree with that opinion). So we must all comply with its rulings whether we like it or not.

        The classic exception to this condition being Andrew Jackson, who, upon hearing that SCOTUS ruled in favor of the Cherokee Nation, simply ignored it, saying, “They’ve made their decision, now let them enforce it.” That bad attitude gave us the Trail of Tears and me a lot of Cherokee neighbors.

        My commentary here, however, was just my own little insignificant “dissenting opinion,” with “opinion” being the operative word. That said, this decision should be concerning to all Americans, even those that agree with it. The Court is becoming increasingly political, the evidence for which is that most decisions are now split 5 to 4, across party lines, with the fifth being the “swing” vote. To the extent that is true, we can now say it takes only 4 people to make a law.

        As to the Heritage Foundation, when I research a subject like this one, I tend to go with those entities that provide what to me is the most reasonable ans well thought-out explanation. I really don’t care where they are on the political scale. I think I’m informed enough to trust my own judgement. Sometimes I’m wrong, sometimes I’m right. But what the hell, It’s only an opinion and it’s not binding on anyone.



        • Herb,

          I respect the thought you put into your opinions, and I wasn’t trying to discount this one at all. I actually like such discussions, and my reference to the Heritage Foundation was because when I followed your link I remembered its prior opinion on the mandate, which I spent some considerable time reading. That led me to the 1993 Republican plan and watching Lincoln Chafee on the Senate floor present something similar to what we have today, as the alternative to HillaryCare, which in turn led me to a slide presentation by none other than Mitt Romney who made an excellent case for the mandate. I wrote a piece about it but haven’t had time to finish it.

          Your mention of Marbury against Madison made me recall just how our Founders failed to specifically authorize judicial review in the Constitution itself (although it was understood that that courts would have that power), Marshall then being obliged to find it hiding in the penumbras, or something like that. That seems like a stunning oversight to me, which goes to prove, I suppose, that the Founders were not gods, which may surprise some Teapartiers who don funny hats and wigs whenever the word “ObamaCare” is uttered.

          Finally, as a liberal, I am troubled by many aspects of the health care decision, as I believe on balance it has the potential to set back our march toward a more perfect union, but there will be plenty of time to revisit the ramifications of the decision.

          Again, in the vast reaches of the universe, none of our opinions matter that much, but here I value yours highly.



  3. Treeske

     /  July 2, 2012

    Not a lawyer nor Constitutional expert but have lived under several Healthcare systems in the industrialized world. The US is the only one that yells Judeo/Christian values but refuses to accept Healthcare as a moral issue, no wonder the citizenry is confused. The other, some secular countries, do and we all know surpass us in overall health and the care at less expense.
    About the costs and the rights of those who do not want to purchase Insurance, I can only say this; Go sit in any hospital ER and watch those without insurance with a cough or snot nose and figure how much that costs us all. In no way do I complain about having to share, instead grateful I’m able to, just want to address something hardly ever mentioned.


    • Treeske,

      I’d be interested in reading about your worldly experience with different health care systems. If you care to, please feel free to share with us some of your thoughts and experiences.

      And I am also grateful that I live in a civilized country, or at least what I thought was a civilized country. Lately, with the advent of the Tea Party, I am having serious doubts.



  4. ansonburlingame

     /  July 3, 2012

    To all,

    How the Supreme Court arrived at its ruling is a matter for legal debate which none of us are really qualified to engage in. But the simple FACT is that a ruling has been issued and ACA is now the law of the land, in its entirety.

    To me it would seem that the political debate should now be “what next” given the Court ruling. I think I understand how the “50 million” might vote come Nov. “Don’t take MY money to pay for this thing (ACA)”. But take their money in a pretty big chunk is what is going to happen, as I see it, unless ACA is changed, rather dramatically.

    I suspect both sides want to now change ACA. There is the future argument. Crying or gloating over the Court decision in an exercise in futility, as I see it. It is just like trying to predict the future “reputation” of the “Roberts Court”.



  5. Cleaning up my emails I came late to this discussion, but it was a good one. Too bad all citizens aren’t engaged as fully in the issues here on the ACA.

    Stepping back for perspective on the debate I sense that conservatives’ angst derives from primal tribalism. They fear it as one more step toward socialism while being in full denial of everyone’s complete interdependence in the modern, specialized world. One ironic example of this which just happens to be currently in my head: that the EPA, a powerful federalist tool which just happens to operate at great public expense to make life better for everyone, was the creation of none other than Republican Richard M. Nixon, and that both political parties in 1970 cooperated in its creation.

    Now, 42 years later, here we are with a crying public need for basic and preventive healthcare and a similar, at least to me, obvious solution in a Public Option. Healthcare in a modern society should be a basic right of citizenship, one which the nation has, de facto, recognized by passing the EMTALA legislation. Yet the Right refuses to recognize that reality. It’s not about the money, really. If it were, their shorts would be all in a knot over the profligate, un-budgeted spending on Top Secret America during the Bush administration. No, what it’s about is the thought of wealth transference through the tax system. It’s about possessiveness and tribalism.

    The beat goes on. I see in today’s Globe that the Missouri GOP is determined to squash the formation of a state health insurance exchange as required by the law of the land, the ACA, never mind that such should be lauded as healthy capitalism and never mind that the Right refuses to offer any viable alternative. QED.


    • Jim,

      I read that article on the Republican effort to “squash” the exchanges. I am particularly dismayed at Jay Nixon’s response, or lack of response, so far. If he sides with the GOP on this issue, I’m afraid it would be a game-changer for me.

      But anyway, I loved what you said:

      …what it’s about is the thought of wealth transference through the tax system. It’s about possessiveness and tribalism.

      I thought about how Obama’s language to Joe the Plumber four years ago confirmed what most far-right folks suspected about Obama, that he was a closet socialist. I believed he used the phrase, “spread the wealth around,” which was a perfectly logical phrase in the context he used it, but which provided the tribalists a perfect clip to use to spread their propaganda.

      Any tax system is a system of wealth transference, of course. Just like paying rent to a landlord, you are transferring some of your wealth to him or her and getting something in return. But your comment led me to think about the transfer of wealth that goes on every single week in churches across America. Some of those tithes and offerings goes toward worthy goals, some doesn’t, but make no mistake about it, through a sometimes subtle and sometimes not-so-subtle admonition, folks transfer their wealth to others presumably for noble reasons.

      But because of the incredibly successful decades-long Republican campaign against social reality, when Democrats apply the same principles to government, they are wicked Marxists.



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