Commentary: Behind the Obamacare ruling

Supreme Court Justice Antonin Scalia took issue with a court decision upholding Obamacare’s individual mandate as a tax. (Jewel Samad / Getty Images)

Today we look forward at what's next in the health care reform soap opera by glancing first at our rearview mirror — and discovering the story behind the story that stunned Washington and the nation last week.
Not quite everyone was stunned when the Supreme Court ignored Washington's conventional wisdom and upheld the constitutionality of President Barack Obama's signature health care reform. I can report that with a bit of insider insight.
Before the Supreme Court's health care ruling, I emailed sources and friends saying I expected the court would uphold the key mandate requiring everyone to have health insurance.
It was just an educated hunch. I explained that three days before the historic health care ruling, the court struck down most of Arizona's controversial immigration law — and ever-sharp conservative Justice Antonin Scalia didn't just judicially dissent, he scathingly denounced, reading his opinion aloud, a rare move. His spirited performance was beyond judicial; it was political. Way beyond what seemed warranted.
As all reporters learn in Journalism 101, I asked myself: Why? Why is Scalia so damn angry?
The only plausible answer, I wrote, is that he knew what was coming just three days later.
I thought Scalia seemed to feel betrayed. A week later, a real journalistic scoop confirmed he probably was. CBS News' outstanding chief legal correspondent, Jan Crawford, reported an on-air and online bombshell — a Supreme scoop on a beat that almost never produces such journalism.
"Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law," Crawford wrote, "but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations."
Rewind back to the Friday after the court's March health care arguments. Roberts seemed to initially side with conservatives in calling the mandate unconstitutional, saying it exceeded constitutional power to regulate interstate commerce. Roberts began writing a majority opinion striking down the provision, Crawford reported.
Roberts seized upon a sliver of an argument by Obama's solicitor general, Donald B. Verrilli Jr., and transformed it into a pillar strong enough to uphold Obamacare's mandate (on grounds Obama still doesn't acknowledge).
Verrilli argued that since the Internal Revenue Service will collect, under tax code provisions, the penalty for those failing to get health insurance, it could be considered a tax. Never mind that Obama insists it isn't.
Roberts declared the mandate's penalty "may reasonably be characterized as a tax." That makes it constitutional.
It took me back to the summer of 2009, when a friend, who was informally advising Mitt Romney and has often been described as a "health care super-lobbyist," told me:
1. Republicans will challenge Obamacare's constitutionality if the White House contends it is interstate commerce — and win.
However, the mandate's penalty can be written as a tax — and if Obama does that, it can't be challenged as unconstitutional.
2. But Obama's problem is that if he admits his mandate's penalty is a "tax," Congress will never enact it. Too many Democrats will defect rather than vote for any new tax.
So here we are today: The Supreme Court ruled Obamacare's mandate is constitutional because it can be characterized as a tax.
Obama, who was against the mandate (in 2008) before he was for it, says no, it isn't a tax, but yes, let's enforce it.
Romney, who was for the mandate (in Massachusetts) before he was against it, agrees with Obama that it isn't a tax, but blasts Obama and vows to repeal the constitutional caboodle called Obamacare.
Now Obama has only one option. He must tell the truth — the whole truth: Only Obamacare protects us all from the one group that's been sticking it to middle-class Americans and getting off scot-free. It will finally clamp a penalty tax on all who don't have health insurance and use hospital emergency rooms as their doctors, forcing us all to pay their huge ER bills.
Obamacare will protect the 99 percent of us by taxing the 1 percent — which this time isn't the billionaires, but the freeloaders.
Martin Schram’s column is distributed by the Scripps Howard News Service.