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“A Penalty is Not a Tax.” Supreme Court Justice Antonin Scalia says The Language in Affordable Care Act Can Only be Stretched so Far.


by Scott Rohter, August 2012

Supreme Court Justice Antonin Scalia said something in a television interview on Fox News that was very interesting. It was reminiscent of something that Sarah Palin once said when she was John McCain's running-mate in 2008. Justice Scalia remarked that the language in the Affordable Care Act can only be stretched so far. He said that, “the penalty in the Affordable Care Act was not a pig. It could never be a pig," he declared. This reminded me of what Sarah Palin said... “You can put lipstick on a pig, but it is still a pig.”

The penalty in the Affordable Care Act is not a tax. It can never be a tax because it was never represented as a tax when the Affordable Care Act was passed by Congress and signed into law. To our Nation's longest serving member of the Supreme Court what this means is that trying to refer to the penalty in the Affordable Care Act as a tax is the same thing as trying to call it a pig. That is what Justice Scalia meant when he said that you can only stretch the language in the Affordable Care Act so far. The penalty for not buying health insurance is not a tax. It is not a tax as long as words have any meaning. It is a penalty no matter what Chief Justice John Roberts decides to call it now in order to lipstick over the unconstitutionality of the health care law.

The financial consequence of not buying health insurance was always considered to be a penalty when the health care legislation was written. It was a penalty when the legislation was passed, and it was still a penalty when the legislation was signed into law by the President. The penalty was never considered to be a tax until a legal challenge to the Affordable Care Act was brought before the Supreme Court, and no matter what John Roberts decides to call it now at this late date in order to give the President a victory it will still be a penalty even with all the lipstick on it. The penalty in the Affordable Care Act cannot be redefined as a tax after the legislation was represented to Congress as not containing any new taxes.

Justice Scalia said that the language of the Affordable Care Act will not support this kind of reckless interpretation of the law. It doesn't matter how the government enforces the penalty, who collects the fine or where the money is eventually distributed. It does not matter if the fine is collected by the I.R.S. The language of the law doesn’t support redefining the penalty as a tax in order to legitimize the Affordable Care Act. In other words just because the I.R.S. collects the money does not mean that the penalty miraculously becomes a tax.
It does not.

If five members of the Supreme Court are willing to suspend reality in order to approve the Affordable Care Act it still does not change the truth. A judge's failure to follow sound principles of logic does not change up into down or right into left.  The penalty that people are required to pay if they don't comply with the individual mandate still remains a penalty no matter how much lipstick they put on that pig. However it does illustrate just how far this court will go in order to legitimize the President's unconstitutional health care law.

The Democrat Speaker of the House, Nancy Pelosi said, "We will climb any wall,… If we can’t climb the wall, we will pole vault over the wall… If we can’t pole vault over the wall, we will parachute over the wall, but we are going to pass the Affordable Care Act no matter what it takes"... and it was passed in the wee hours of the morning on Christmas Eve in spite of the fact that it didn't get a single Republican vote.

Since the Supreme Court ruled in favor of the Affordable Care Act there have been many mainstream Republican organizations, pundits, think tanks and establishment media sources that have been trying to whitewash its decision. They range from Newt Gingrich, to The American Thinker, to Mitt Romney. They have all been trying to tell us what a great legal genius John Roberts really is and what a great gift he has given to the Republican Party by casting the deciding vote in favor of Obama Care. I don’t see it that way. I'm not fooled by all of this nonsense about what a gift in disguise this Supreme Court decision really is, or what a legal genius John Roberts is. The penalty in the Affordable Care Act is still a penalty no matter what Justice Roberts calls it, and you can't put enough lipstick on that pig to make it look like a tax. At least that's what the longest serving member on the United States Supreme Court says and I agree with him.

Is it possible Justice Scalia could be wrong? Maybe. Its about as plausible as the idea that pigs can fly. Maybe the penalty in the Affordable Care is really a tax. Maybe John Roberts is the real pig. Maybe President Obama, former Speaker Nancy Pelosi and Senate Majority Leader Harry Reid are all pigs too... or maybe I'm just nuts. Maybe I am being unkind to pigs. If Justice Scalia was wrong then maybe Sarah Palin was wrong too... about pigs. Maybe there really is enough lipstick in America to turn pigs into Congressman and Senators and Presidents, or if you put enough lipstick on a pig maybe it really can fly... right into the White House and become our President. What do you think of that?



"The truth, the political truth, and nothing but the political truth.
A journalist has no better friend than the truth."
- Scott Rohter

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