Meese to Newsmax: SCOTUS Ruling Creates ‘Ambivalence’

Thursday, 28 Jun 2012 05:57 PM

By Todd Beamon and Kathleen Walter

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Former U.S. Attorney General Edwin Meese III told Newsmax.TV in an exclusive video that U.S. Supreme Court Chief Justice John Roberts created “an ambivalence that is hard to understand” in his majority opinion upholding Obamacare because its penalty amounted to essentially a tax.

“I was indeed surprised that the Chief Justice upheld this particular provision of the law, particularly when it was not argued by the government, either at the time that the bill was passed or later before the court, that it was in fact a tax,” Meese, who now holds the Ronald Reagan Chair for Public Policy at the Heritage Foundation, told Newsmax in an exclusive interview on Thursday.

“As a matter of fact, before the court [the White House] tried to have it both ways.”

Watch the exclusive video below.



Writing for the 5-4 majority, Roberts said that the individual mandate requiring uninsured Americans to buy health coverage was constitutional because the penalty for not having insurance was essentially a tax – and, therefore, fell within Congress’ taxing authority.

“It is indeed likely that many [more] Americans will choose to pay the IRS than buy insurance,” Roberts said in rendering the majority opinion from the bench, describing how the penalty for not carrying insurance “looks like a tax.”
Penalties for not taking insurance are expected to be about $700 for individuals and $3,000 for businesses, though they would likely be less than the cost of the actual insurance.

But Meese, who also served as Reagan’s chief of staff when he was governor of California, disagreed with Roberts’ majority opinion.

“It’s inexplicable as to how they read the mandate penalty as a tax because it was a misreading of the statute. On that statutory ruling, the court held that the mandate penalty is not a tax for purposes of the Tax Anti-Injunction Act, but is a tax under Congress’ taxing power, an ambivalence that is hard to understand.
“So I was really surprised that the court, and particularly the chief justice, arrived at this decision.”

Under the Anti-Injunction Act, the Constitution prohibits the court from ruling on a case before a tax goes into effect. So, if the individual mandate was indeed a “tax,” the court could not have not taken up Obamacare in the first place.
By now ruling that the mandate is essentially a tax, the justices said it fell within the purview of Congress’ taxing authority via the Commerce Clause of the Constitution.

In making such fine distinctions, Meese called Roberts’ opinion “literally convoluted.”

“It clarified the jurisdiction of Constitutional meddling in regard to the Commerce Clause and taxing power after the government specifically had stated, during the early debates, that the individual mandate was not a tax,” he said.

Overall, Meese described the court’s ruling as a tragedy – because of the definition of taxing authority, for the expansion of federal spending and debt, for the way it undermines the relationship between patients and doctors and for the way it “tramples on religious liberty.”

“Most of all,” Meese said, “the tragedy was the way this was rammed down the throats of the Congress,” where no member read the 2,700-page bill.
Nevertheless, Obamacare can be repealed, Meese said.

“The prospect of repeal is excellent,” he said. “It’s only a question of timing. If the president and the majority in the Senate never have been cooperative in upholding the Constitution,” so there may need to be changes before the law is repealed and replaced.

It also will become the defining issue – along with several others – in this fall’s election.

“We know that the overwhelming majority of Americans are opposed to the Obamacare legislation, and so I certainly think that this would be an important matter for discussion and for argument during the election campaign.

“However, it is only one of a number of things that are moving the country in the wrong direction – but I think it definitely would be symbolic of what is wrong with the current direction of our nation, as it will be discussed in the campaign.”

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