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The Supreme Court just had hearings over the Affordable Care Act to determine its constitutionality.  The biggest question they will stew over is that of the mandate to buy health insurance.  Those questioning the bill’s constitutionality site that the federal government mandating that a citizen purchase something is ‘unprecedented’ in our Constitution.  The bill’s defenders propose that the judicial branch has, in the past, deferred to Congress on the regulation of interstate commerce.

But for me, a huge part of the argument against the bill is mostly built upon semantics. If the mandate to buy insurance is ignored by a citizen, they will face a penalty to be paid to the government unless they cannot afford insurance.  In that case, their insurance will be subsidized by the government.  Now, if instead of using the language ‘penalty’, if the Dems had called it a tax, there’s simply no case.  The court has long held that the state is free to levy taxes on its citizens for the common good.  But likely out of fear, and partially out of naivety, that language was avoided.

Why? First, the GOP loves slamming any and every tax hike the Dems roll out, no matter how practical or popular.  Secondly, I’m sure some within the administration thought that since the Affordable Health Care Act is an old page from the GOP playbook (see Mitt Romney), that this would give the bill broader appeal.  In other words, the last thing they thought would be another politically motivated witch hunt on the scale of the Clinton years which would wind up with the bill being debated at our highest court in the land.

If the bill is overturned, it will likely again be on party lines in a 5-4 vote. It seems strange to me that the party crying about judicial activism for decades might be exploiting the judiciary for the same purposes.  Many contend the smart money is still with the bill being allowed to stand along with the mandate, but the direction of the proceedings has me a bit worried.