Patterico's Pontifications

6/28/2012

ObamaCare Ruling Expected Shortly; SCOTUSBlog Report: Supreme Court Upholds Mandate As a Tax; UPDATE: Video of Obama Denying It’s a Tax

Filed under: General — Patterico @ 6:50 am

The revolution will be liveblogged at SCOTUSBlog.

UPDATE: The SCOTUSBlog liveblog is reporting that ObamaCare’s mandate has been upheld as a tax, with Chief Justice Roberts in the majority.

UPDATE: It was clear from the arguments that many Justices and lawyers believed that the mandate could be upheld if it were considered to be a tax. But I admit that I did not get the impression that the Justices were buying that argument.

UPDATE: They’re reporting that the whole law has been upheld, with a small limitation on the federal government’s power to terminate the states’ Medicaid funds.

UPDATE: Here is a clip of Obama absolutely rejecting the idea that ObamaCare is a tax:

Ignore the captioning, which is inaccurate, and just listen to what he says.

UPDATE: Link to the opinion here.

436 Responses to “ObamaCare Ruling Expected Shortly; SCOTUSBlog Report: Supreme Court Upholds Mandate As a Tax; UPDATE: Video of Obama Denying It’s a Tax”

  1. Updates as they become available.

    Patterico (92ce6c)

  2. Ding!

    Icy (9ccb08)

  3. 344,000 readers at that liveblog.

    Patterico (92ce6c)

  4. Stolen Valor Act unconstitutional as currently written.

    Patterico (feda6b)

  5. Stolen Valor Act ruling here.

    Patterico (feda6b)

  6. 520,000 readers now

    aunursa (7014a8)

  7. They’re up to 520,000 readers at the liveblog.

    Patterico (feda6b)

  8. that seems right to me about the valor thing

    happyfeet (3c92a1)

  9. CNN reporting mandate struck down.

    Patterico (feda6b)

  10. SCOTUSBlog says opinion says it survives as a tax (?!)

    Patterico (feda6b)

  11. shouldn’t that say sponsored by bloomberg decree?

    happyfeet (3c92a1)

  12. It was clear from the argument that it COULD survive, possibly, if passed as a tax. But it also seemed clear nobody considered it a tax. Other than Obama’s lawyers…

    Patterico (feda6b)

  13. Remember how they screwed up the initial reporting on Bush v. Gore?

    Patterico (feda6b)

  14. I thought Obama was not going to raise taxes on 98% of Americans?

    Dustin (330eed)

  15. Wow. They are saying Roberts joined the left to uphold it as a tax.

    Patterico (feda6b)

  16. whoever wrote the opinion did a crappy job if people still don’t know what it says I think

    happyfeet (3c92a1)

  17. Wow. They are saying Roberts joined the left to uphold it as a tax

    Color me surprised, too.

    Kman (5576bf)

  18. Fault to Bush.
    Our justices suck.

    mg (44de53)

  19. Well, the left won a huge, huge battle today.

    Huge.

    There is no limit to what the federal government can do.

    Dustin (330eed)

  20. My comment…same as mg’s….

    Now Congress can force any American citizen to buy ANYTHING. Period.

    Charlotte (4c5f92)

  21. Actually, since this law is so unpopular, it helps Romney in November. I’m dismayed, but better to have the American people say not to it than 9 justices.

    Brandon (d777af)

  22. The bush family sucks at picking justices.
    We would get the same from mittens.
    Time to reload.

    mg (44de53)

  23. All hail to our new overlords…the government..

    Pardon me while I cry for our FREE Republic.

    Charlotte (4c5f92)

  24. if a supposed constitutionalist like Roberts is a closet America-raping obamawhore what hope does a limp-wristed cheesestick like Governor Mitt have of repealing this thing?

    happyfeet (3c92a1)

  25. I’m wondering how this tax survives the prohibition against capitation taxes. It is clearly a head tax.

    Kevin M (bf8ad7)

  26. Two-thirds of Americans already have health insurance, Mr. Dustin, and thus would not be subject to the “tax”. However, it is the lower-middle class — those that earn too much to qualify for Medicaid, but not enough to afford to pay premiums — that will be zinged by a penalty-for-not-buying-health-insurance tax.

    Icy (9ccb08)

  27. Well, this does give us a Supreme Court ruling that states that mandating purchase is unconstitutional.

    In other words, Randy Barrett won his argument. The Supreme Court decided to treat the mandate in a way that specifically contradicts the actual legislation – hardly adding to its “legitimacy”.

    SPQR (26be8b)

  28. Holder is going to get extra contempted.

    Kevin M (bf8ad7)

  29. Justice Roberts is to be commended.

    tye (f51325)

  30. Brandon (#21): Thank you for seeing some bright side to this.

    Mr. Romney has said he will repeal. Hopefully it will happen.

    Charlotte (4c5f92)

  31. George Bush was right. Harriet Miers would have been better.

    DRJ (a83b8b)

  32. Trillion $ ObamaTax saves Obamacare

    crazy (d60cb0)

  33. from SCOTUSblog: “Amy Howe: The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.”

    Just what does this mean?

    Brandon (d777af)

  34. Question:

    Wasn’t there some discussion way back that, if this was actually treated as a tax, then it would be an illegal piece of legislation due to the way it was passed?

    So now that it IS declared a tax… what happens if it was passed improperly?

    Another Anon (f43943)

  35. This is why I never bet on SCOTUS rulings – I never would have guessed this outcome.

    Now, wait for the backlash…

    Leroy Oddswatch (cb6511)

  36. George Bush was right. Harriet Miers would have been better.

    Ouch.

    Patterico (feda6b)

  37. 60 years old with my head in my hands, wondering what the fluck is next.

    mg (44de53)

  38. UPDATE: Here is a clip of Obama absolutely rejecting the idea that ObamaCare is a tax:

    Ignore the captioning, which is inaccurate, and just listen to what he says.

    Patterico (feda6b)

  39. However, it is the lower-middle class — those that earn too much to qualify for Medicaid, but not enough to afford to pay premiums — that will be zinged by a penalty-for-not-buying-health-insurance tax.

    Comment by Icy

    Good point. It’s a regressive tax and a massive one.

    Dustin (330eed)

  40. tye is to be committed.

    Icy (9ccb08)

  41. Did the legislature claim this as a tax? Did Obama?

    We have now constitutionalized almost limitless Federal powers.

    JD (318f81)

  42. JD: Obama denied it’s a tax. See the update.

    Patterico (feda6b)

  43. ok so the commerce clause is dead law we need to go to target and get a magic marker and black that bitch out so people don’t get confuzzled in the future

    happyfeet (3c92a1)

  44. Mr. Romney has said he will repeal. Hopefully it will happen.

    Comment by Charlotte

    Hopefully Governor Romney will fight for repeal.

    However, I never took that claim seriously because the president doesn’t repeal laws. It’s one of those politiciany promises that isn’t possible to keep.

    Actually, since this law is so unpopular, it helps Romney in November.

    Comment by Brandon

    I think the unpopular law will indeed rally opposition to Obama. However, it’s a tough issue politically for Romney, as he has not been consistently opposed to a federal ind mandate and indeed recommended to Obama, in a USA Today column, this scheme.

    But he has been opposed to it ever since the law’s passage, perhaps due to its unpopularity, and he is a skilled politician.

    It’s very frustrating to me seeing conservatives in power who accommodate huge government and power grabs, and that’s a very common problem. I didn’t realize it was this bad, though. I thought Roberts was reliable.

    Dustin (330eed)

  45. Art I, Section 9, 4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

    So, the Court has now repealed this? A direct tax, laid on individuals without respect to the census, is now OK?

    Kevin M (bf8ad7)

  46. John Roberts, to his everlasting infamy, has just writtin his own “Dred Scott” decision.

    May God Help Us; and,
    may God have Mercy on his Soul!

    Out!

    AD-RtR/OS! (2bb434)

  47. This is a big win for the President. A loss would have had him reeling. His first good week in a while.

    Kevin M (bf8ad7)

  48. Now just wait for the next cases that call on this case as precedent. Wait for the Subcommittee on the Constitution to OK new laws because they rely on this tax interpretation for unlimited power.

    It may be years before the democrats have enough legislative power to do this, but they will eventually be able to use the victory today for enormous power grabs.

    Dustin (330eed)

  49. Roberts punted leaving the mess for voters and Congress to resolve because to do otherwise would have left mandatory participation in Social Security and Medicare open to constitutional challenge.

    crazy (d60cb0)

  50. Obama and Roberts have spread the healthcares to all the childrens!

    You now live in goddamn europe.

    Enjoy.

    happyfeet (3c92a1)

  51. Here’s what we’ve got to do.

    We’ve got to rally congress to overturn this bill.

    We need a constitutional amendment clarifying limited government.

    Dustin (330eed)

  52. Joe Biden just said “F*ck yeah!” about fifty times.

    Icy (9ccb08)

  53. Was the law in its entirety being challenged, or only the individual mandate?

    Michael Ejercito (2e0217)

  54. Remember the Stupak problem? The Senate’s Bill had abortion in it and the House’s did not so the House had to vote on the Senate Bill. Tax Laws must originate in the House, but ObamaCare was not passed as a tax, so passing the Senate’s bill was acceptable.

    Now that it is a tax, does the House get another bite at this apple?

    Arch (0baa7b)

  55. Big question: Did Roberts change his vote as the result of Presidential arm-twisting, or fear of the Court’s reputation? Because he just totally trashed his own rep, probably forever. And everyone worried about Kennedy, who is a stalwart in comparison.

    Kevin M (bf8ad7)

  56. it’s the advice of Mr. Clayton Williams what most pertains here Mr. Dustin I think

    happyfeet (3c92a1)

  57. So does this mean the end of legislative intent? This was clearly an ambiguous case and the court ignored the intent of the legislature (and the President) in declaring the mandate a tax.

    tjw (7bb501)

  58. Dow down 118.

    RB (678718)

  59. And so, Congress can tax to enforce something that it has no power to order. The “You don’t eat broccoli” tax. The “no GM car bought in 5 years” tax. This is a travesty.

    Kevin M (bf8ad7)

  60. Maybe I’m flailing, but it could be worse…. and there are some silver linings…

    The Supreme Court could have ruled in favor of the mandate based on the Commerce Clause. That they didn’t do so preserves at least some hope that there are limits to what the federal government can and can’t do.

    Obama ‘wins’… but only by raising taxes on people he claimed he would never raise taxes on… and by imposing a tax he claimed wasn’t a tax. I’m not sure how, but I would bet both of these angles get featured in GOP ads this fall. Being portrayed as either clueless and/or a liar can’t help him maintain his likeability ratings (and without those ratings, what reason is there for undecided voters to give him another four years?)

    And I don’t think public dislike of the mandate is going to dissipate because Roberts decided to call it a tax. Tomato, tomato, the public didn’t like the idea of being forced to do something they didn’t want to do… and I figure it doesn’t much matter to them how the mandate is justified.

    posted here

    steve (369bc6)

  61. Clarification from the SCOTUSblog: “Tom: Apologies – you can’t refuse to pay the tax; typo. The only effect of not complying with the mandate is that you pay the tax.”

    They had me going for a moment there. I guess they’re trying to answer about 1,000 questions per second on this.

    Brandon (d777af)

  62. Roberts punted leaving the mess for voters and Congress to resolve because to do otherwise would have left mandatory participation in Social Security and Medicare open to constitutional challenge.
    Comment by crazy — 6/28/2012 @ 7:32 am

    – Nice try, but completely wrong.

    Icy (9ccb08)

  63. Roberts has essentially made the Commerce Clause and the power to tax equivalent, so now there’s no limit to what the government can do.

    DRJ (a83b8b)

  64. 57. Legislative intent has always been overrated. What they say is not always what they intend.

    Kevin M (bf8ad7)

  65. H David Blalock
    7:28 AM – Public

    The Commerce Clause has now become the carte blanche for legislating against personal freedom. It can now form an argument as a basis for the implementation of a federal tax. Regulation and tax are now equivalent according to the SCOTUS ruling on the ACA.

    happyfeet (3c92a1)

  66. Did Judge Vaughey fax this to Roberts?

    narciso (9b9fea)

  67. or, what DRJ said

    happyfeet (3c92a1)

  68. Balls and strikes.

    Jamie (ee4a20)

  69. UPDATE: Link to the opinion here.

    Patterico (feda6b)

  70. Never rely on the Supreme Court to limit government. Clearly we have to win this election. And then we have to start putting small government folks into Congress and on the Court. But if Obama wins, this country is even more doomed than I thought. Probably to the point of multiple secessions.

    Kevin M (bf8ad7)

  71. It isn’t a tax. It is a fee. This is exactly the kind of semantic game conservatives play when trying to raise revenue without “officially” raising taxes.

    tye (f51325)

  72. Wow but that’s a good server.

    Kevin M (bf8ad7)

  73. Tea Party hat on, loaded for bear. Let’s remind everyone in the House or Senate who voted for this abortion, need to think about what they are going to do after they leave government.

    Arch (0baa7b)

  74. DRJ: there’s always been consensus that Congress could penalize via tax those not purchasing health insurance, I don’t think this decision breaks any new ground.

    Another potential silver lining, albeit a small one: if there were 5 votes to ratify the mandate on Commerce Clause grounds, don’t you think the 5 justices would have done so? That they didn’t is a nice STFU to all the liberals who from day one have claimed that of course the mandate was permissible on those grounds.

    steve (369bc6)

  75. So, this must mean than any penalty or fine anywhere can now be defined as a “tax”? The whole definition has changed.

    And, it opens the door that we can be ordered to buy anything and if we don’t, we have to pay a fine because that will be considered a “tax”

    Dana (292dcf)

  76. Comment by happyfeet — 6/28/2012 @ 7:12 am

    whoever wrote the opinion did a crappy job if people still don’t know what it says I think

    They are often written to keep people in suspense till the end. (but don’t they have highlights at the start?)

    The people who argued against the law never made arguments that, considered as a tax, the penalty was unconstitutional. It’s basically a tax o having a Social Security number.

    Sammy Finkelman (976d9e)

  77. Dow is down 164.

    RB (678718)

  78. I think it’s already been established elsewhere that Obamacare cannot sustain itself nor can the crony capitalist insurance companies and pharmas survive if many many many people and companies decide to pay the “tax”/fine in lieu of accepting the mandate to buy policies they neither want or can afford. Apparently per Amy Howe there were not enough votes to sustain the insurance purchase mandate under the commerce clause but they do uphold the alternative fine as a lawful “tax” if people reject the, uh, “suggestion” that they buy insurance.

    Obamacare needs to be repealed and replaced with something else that works to fix the delivery of healtcare in this country. Your move, Mitt. I am looking forward to the spin of how the mandate only survived as being constitutional when it is viewed as a tax–when Obama the famed constitutional scholar lied to everybody in claiming it was most certainly not a tax. No sirreee. Not a new tax.

    elissa (bd6062)

  79. Justice Roberts:

    “Our precedent demonstrates that Congress had the power to impose the [individual mandate] exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

    Dana (292dcf)

  80. It’s probably good news for me. I can now stop spending $8,000.00 for my COBRA and just pay the “tax”. But who will pay my doctors?

    nk (875f57)

  81. Comment by Arch — 6/28/2012 @ 7:34 am

    Tax Laws must originate in the House, but ObamaCare was not passed as a tax, so passing the Senate’s bill was acceptable.

    Now that it is a tax, does the House get another bite at this apple?

    No, do the litigants get another bite at the apple. I don’t think the Supreme Court considered this point at all. It’s a technicality, but laws have been struck down for technicalities. Or did the bill still actually originate in the House?

    Sammy Finkelman (976d9e)

  82. Obviously, as the token liberal here, I’m happy with result, but I join those who question the rationale.

    A tax? Gotta read the opinion on that.

    Kman (5576bf)

  83. I am looking forward to the spin of how the mandate only survived as being constitutional when it is viewed as a tax–when Obama the famed constitutional scholar lied to everybody in claiming it was most certainly not a tax. No sirreee. Not a new tax.

    It’s very telling of the weakness of his position and the dishonesty in the process towards passing this law.

    However, I doubt most voters will ever become aware of the contradiction.

    Obamacare needs to be repealed and replaced with something else that works to fix the delivery of healtcare in this country.

    Why? Why must the federal government ‘fix’ healthcare? Why not completely ignore the issue?

    Dustin (330eed)

  84. tye, don’t you just love living in a country where the federal government charges you a fee for no other reason than your being an adult citizen?
    for breathing?
    for choosing NOT to purchase a private company’s product?
    for not taking care of yourself the way that THEY say you should?

    Icy (9ccb08)

  85. How will the public ever know what legislation means if the Court can interpret it to mean the opposite of what Congress and the President says it means?

    DRJ (a83b8b)

  86. Comment by Dana — 6/28/2012 @ 7:44 am

    And, it opens the door that we can be ordered to buy anything and if we don’t, we have to pay a fine because that will be considered a “tax”

    Because they could tax you and not give you the alternative of avoiding it by buying something.

    Sammy Finkelman (976d9e)

  87. Mitt’s people are going to stick the “raising taxes” thing on Obama now.

    Kman (5576bf)

  88. “It is absolutely not a tax increase.”

    -President Obama March 20, 2009.

    Dustin (330eed)

  89. steve:

    DRJ: there’s always been consensus that Congress could penalize via tax those not purchasing health insurance, I don’t think this decision breaks any new ground.

    Of course, but Congress and the President said this wasn’t a tax: Congress said it by refusing to put the word tax in the legislation. The President specifically said it wasn’t a tax.

    It’s one thing to call something a tax in legislation. It’s another to call it something else and justify it in court as a tax. It’s deceptive.

    DRJ (a83b8b)

  90. DRJ: there’s always been consensus that Congress could penalize via tax those not purchasing health insurance, I don’t think this decision breaks any new ground.
    Comment by steve — 6/28/2012 @ 7:44 am

    – Since WHEN has there “been consensus” on this?

    Icy (9ccb08)

  91. I just noticed he added a little tiny Clintonese to that statement.

    As his 2008 promise regarded a tax “increase”.

    Even though it is an increase, obviously, from zero to thousands of dollars.

    Dustin (330eed)

  92. I agree with Icy. Since when was there a consensus that congress should tax those who don’t want health insurance?

    Why not let people live their own lives?

    Dustin (330eed)

  93. The Executive Director of the DNC: It’s Constitutional. Bitches.

    Unpopular legislation. Obama and democrats lying that it’s not a tax so it’s passed, then saying it is one, and when that works, telling the American people that this makes them the ‘Bitches’.

    Classy.

    Dustin (330eed)

  94. ok so the commerce clause is dead law we need to go to target and get a magic marker and black that bitch out so people don’t get confuzzled in the future

    Comment by happyfeet — 6/28/2012 @ 7:27 am

    Actually, 5 justices agreed that it was invalid under the commerce clause, so there is a silver lining that there is some limit to the commerce power.

    Matt B (f854d7)

  95. 84- that sounds like you’re setting me up…

    We provide health care to those without insurance anyway. Emergency rooms… urgent care.

    tye (f51325)

  96. Althouse lists 3 arguments for Mitt:

    1. Obama imposed a huge new tax on working people.

    2. Obama deceived the American people by saying it was not a tax, when it was.

    3. The law made it look like money would go to insurance companies — in the form of new premiums — that would keep premiums low as the companies were required to take on people with pre-existing conditions, but now we find out that the money is really going to go to the federal government.

    Dana (292dcf)

  97. One tragedy here is that Justice Kennedy wanted the whole thing to come down.

    Dustin (330eed)

  98. Comment by SPQR — 6/28/2012 @ 7:19 am

    In other words, Randy Barrett won his argument.

    He neglected to argue that the penalty, considered as a tax, was unconstitutional, as it wasn’t an excise tax, since it wasn’t triggere by any activity, and it wasn’t an income tax inasmuch as it was imposed equally on all Americans regardless of whether they had any income, but it was a capitation tax on individuals and Article I, Section 9 , clause 4 says…actually I don’t understand Article I, Section 9 clause 4.
    apitation tax had t be imposed on the states as a unit, and

    Sammy Finkelman (976d9e)

  99. From the opinion:
    The payment is not so high that there is really no choice but to buy healthinsurance

    And the implication is that, were it so, the tax would be unconstitutional. And yet, when young people choose between a $5000 policy they don’t think they need and a $750 tax, they’ll pay the tax every time. And insurers will demand the penalty goes up, and Congress will comply. But will this get revisited by the Court when the penalty goes to $4000? Not hardly.

    Kevin M (bf8ad7)

  100. Actually, 5 justices agreed that it was invalid under the commerce clause,

    But in practice, the government can use taxes to mandate activity people don’t want to engage in.

    Dustin (330eed)

  101. Unintended consequences, Dustin.

    Dana (292dcf)

  102. Mr. Matt this is a road map for circumventing any heretofore constitutional limitation on our sad whorish and cowardly little government’s power

    happyfeet (3c92a1)

  103. Sammy — it was argued before the Court that you could not have a tax on inactivity. It was said that this prohibition goes way back, and mention was made of the Federalist Papers. Yet here we are.

    Kevin M (bf8ad7)

  104. Obviously, as the token toking liberal here

    Obviously, as the token liberal piñata here

    Obviously, as the token liberal here, I’m happy with result, but I join those who question the rationale.
    – Perhaps you are more of a faux liberal, as no doubt your leftist friends are right now high-fiving each other and crowing about how the ends justify the means.

    Icy (9ccb08)

  105. Dustin:

    I agree with Icy. Since when was there a consensus that congress should tax those who don’t want health insurance?

    That’s not what I was saying and I don’t think it’s what steve was saying. My point is that there isn’t a dispute that government has the power to tax, and it can tax to provide for health care if it wants. But it didn’t do that because it couldn’t have gotten the votes in Congress if it had called ObamaCare a tax.

    Under Chief Justice Roberts’ decision, the government is allowed to avoid calling ObamaCare a tax when Congress writes legislation, only to subsequently argue in court that the legislation is valid because it’s really a tax. I think that’s called having your cake and eating it, too.

    DRJ (a83b8b)

  106. Dies it mean that the capitation has to be imposed on the states, or that the assessment must be different in each state?

    I think the latter. The reason for that provision was that a direct tax might be levied only on free people, but people from the North, wanted the south, if such a tax was levied, to pay more because of their slaves.

    Now the differences between the per person asssessment in each state would be trivial. Well, maybe not. The assessment would be higher in states with more illegal immigrants.

    Sammy Finkelman (976d9e)

  107. I wish Romney would comment on this. Something like “C.J Roberts is dead to me.”

    Kevin M (bf8ad7)

  108. Sammy, no it meant that the capitation is assessed on the State, and the State deals with it internally. Remember that in 1787 they didn’t have as good databases.

    Kevin M (bf8ad7)

  109. Good quote of Althouse, Dana.

    I’ve been impressed with Romney’s political skill, so I think he can explain this. Of course politifact will give him 14 Pinocchios or whatever.

    And yes, this is a huge tax on working people.

    The entire point of the Ind Mandate, in Romneycare and Obamacare, is to pretend a massive government program isn’t really a massive government program.

    Instead of taking in $10000 in taxes and spending it on health insurance, the government controls those funds by mandate and directs them from A to B on penalty of a tax/fine.

    Then politicians praise how this didn’t cost a penny of government money (that claim turning out false even under their interpretation).

    Dustin (330eed)

  110. I would suggest that, when Romney is inaugurated, that someone other than Roberts is invited to give the oath.

    Kevin M (bf8ad7)

  111. My point is that there isn’t a dispute that government has the power to tax, and it can tax to provide for health care if it wants.

    Oh, OK. Yes, legally this is fine. Politically it’s not, hence the need for deception when passing the law.

    Dustin (330eed)

  112. 1. Obama imposed a huge new tax on working people.

    2. Obama deceived the American people by saying it was not a tax, when it was.

    3. The law made it look like money would go to insurance companies — in the form of new premiums — that would keep premiums low as the companies were required to take on people with pre-existing conditions, but now we find out that the money is really going to go to the federal government.

    The first argument is silly. Working people typically have health insurance through their employer, so they won’t pay the tax.

    The second argument is only slight less silly. It depends on what Obama meant by “tax”. It’s not an across-the-board tax on everyone, only on those who refuse to get health insurance.

    The third argument is inaccurate. Yes, the money will go to the federal government, who (as I understand it) will pay for the healthcare of those freeloaders who are making health care more expensive for the rest of us by their refusal to get insurance in the first place.

    Perhaps you are more of a faux liberal, as no doubt your leftist friends are right now high-fiving each other….

    Oh, nothing faux about me. I’ve been doing the high-fives.

    Kman (5576bf)

  113. And I think Kevin’s right too.

    Even if it would be lawful for government to jack up income tax rates and use that money to pay for single payer insurance (lawful but still awful), this is a special kind of tax. It’s a penalty on not engaging in conduct someone doesn’t want to.

    I don’t think there’s a consensus that this kind of tax is legal even if the more general idea of taxing and spending on programs clearly is lawful.

    Dustin (330eed)

  114. The really crappy personal thing is that my wife now has to reconsider keeping her acupuncture practice open. Since most insurance won’t pay diddly for acupuncture and now everyone will expect her to take insurance — which won’t even pay her direct costs — there’s big problems.

    Kevin M (bf8ad7)

  115. 84- that sounds like you’re setting me up…
    – Who, little old me? your best bud on this entire site? Pshaw!
    [In all seriousness, those questions were rhetorical. Just do me a favor and think about what kind of America you really want to live in.]

    We provide health care to those without insurance anyway. Emergency rooms… urgent care.
    – And WHAT exactly does this have to do with the discussion at-hand?

    Icy (9ccb08)

  116. Those already financially burdened are the very ones who now face a new financial burden imposed upon them with this regressive tax. I don’t think a lot of them fully understand and realize what this means.

    Dana (292dcf)

  117. CJ Roberts and SCOTUS (7-2) inserted a fatal poison pill – The USG can not compel states to go along.

    It’s still Alice in SCOTUSland, though.

    Outrageous.

    Ed from SFV (68921e)

  118. Or you can vote for the guy who called the individual health insurance mandate “essential” and was “very pleased ” to see it implemented:

    “With regards to the mandate, the individual responsibility program which I proposed, I was very pleased to see that the compromise from the two houses includes the personal responsibility principle, that is essential for bringing health care costs down for everyone, and for getting everybody the health insurance they deserve and need. So I was very pleased with that development.” –Mitt Romney

    Dad (c03711)

  119. The silver lining, if there is one, is that young people are going to get disabused about Obama pretty damn fast when they get hit with this tax thing. Especially the ones still living at home trying to pay down their student debt on their barista earnings.

    Kevin M (bf8ad7)

  120. #119 AFTER they turn 27. Until then…Gee…it’s FREE

    Dustyn H (2bb744)

  121. Comment by DRJ — 6/28/2012 @ 8:09 am

    it couldn’t have gotten the votes in Congress if it had called ObamaCare a tax.

    It also couldn’t have gotten the votes without the forced Medicaid expansion, which was held unconstitutional.

    Under Chief Justice Roberts’ decision, the government is allowed to avoid calling ObamaCare a tax when Congress writes legislation, only to subsequently argue in court that the legislation is valid because it’s really a tax. I think that’s called having your cake and eating it, too.

    That’s basically judicial restraint. The Supreme Court will interpret the law in a way so that’s constitutional, if possible. I thought that Roberts would hold the tax was an unconstitutional tax. That point was never argued.

    Besides what Article I, Section 9, Clause 4 may imply on this there is also the question of whether the tax originated in the House of Representatives, and whether or not you can saddle anyone with a tax that is impossible for them to pay.

    The Medicaid expansion was intended to take are of the problem of people too poor to pay the penalty, let alone buy health insurance. It wasn’t
    very well thought out, but it was meant to deal with this problem.

    I also thought that a lot of the law would fall with the Medicaid expansion, but the justices severed it. The idea that maybe the law, or at least the penalty cum tax, would have to fall if the Medicaid expansion did, was also not argued.

    Sammy Finkelman (976d9e)

  122. Wait till the folks learn that the tax will be collected against expected refunds.

    Obama’s fate was sealed today. It’s 1980, baby.

    Ed from SFV (68921e)

  123. You know, there is a reason the federal government does not charge a fee for Social Security cards.

    Sammy Finkelman (976d9e)

  124. hah

    happyfeet (3c92a1)

  125. – And WHAT exactly does this have to do with the discussion at-hand?

    Comment by Icy

    It’s just a troll’s talking point and nothing more.

    Those already financially burdened are the very ones who now face a new financial burden imposed upon them with this regressive tax. I don’t think a lot of them fully understand and realize what this means.

    Comment by Dana

    Indeed. There will be a lot of Americans who are underemployed thanks to Obama’s economic failure, facing a very harsh choice.

    That leads to the other core deception in Obamacare. They passed the moment of realization, the moment people actually start paying this, until 2013.

    I’m just imagining how the media will spin that. People will be choosing between the rent and the Obamacare Tax. Obama won’t need their vote anymore. He may not even be president at this point, so we could see some democrats blame Romney. It would be stupid, but that wouldn’t stop them.

    Dustin (330eed)

  126. Et tu Roberts?

    Would that I had more confidence in the nominating wisdom of Romney. I don’t.

    Welcome to our post-Constitutional republic.

    foxbat (6ef50f)

  127. I wish Romney would comment on this. Something like “C.J Roberts is dead to me.”
    Comment by Kevin M — 6/28/2012 @ 8:09 am

    – Unlike Obama, Romney will not disrespect the SCOTUS.

    Icy (9ccb08)

  128. I’m no lawyer, but from what I’ve gleaned from Roberts’ decision, if they can construe a law as if it says something it doesn’t then they will in order to rule it Constitutional.

    So the SCOTUS is all about pounding square pegs into round holes to preserve Congress’ power to legislate. Constitution be damned.

    I’m confused how this can be legal, because as I and others recall the House had to adopt the Senate bill following Scott Walker’s election.

    Not that I expect any winning argument to be found there now. If the court can read the Constitution to say that if the House originates a bill that increases taxes and the Senate writes a separate bill that imposes penalties, the House can adopt the Senate bill and then the court will pound whatever square pegs into round holes it needs to in order to construe it as if the court is considering the House bill.

    Steve57 (c441a6)

  129. Actually, following this decision I’m glad I’m not a lawyer. No offense Pat, but we have too many of them. I can think of nine right now we can do without.

    Steve57 (c441a6)

  130. “JD: Obama denied it’s a tax. See the update.”

    - Patterico

    “How will the public ever know what legislation means if the Court can interpret it to mean the opposite of what Congress and the President says it means?”

    - DRJ

    And the Textualism/Intentionalism debate punches its skeletal hand through the loose soil of its grave – to devour brains once again…

    Why in the world should the disparate intents of Obama and hundreds of different legislators affect the Supreme Court’s reading of the ACA? They have a text.

    Leviticus (e923df)

  131. The first argument is silly. Working people typically have health insurance through their employer, so they won’t pay the tax.

    I thought the whole point to ObamaCare was that so many working people didn’t have insurance.

    Chuck Bartowski (3bccbd)

  132. mg called this right on the prediction thread, by the way. What does he win? If everyone had put a buck in a hat, he’d be a rich man…

    Leviticus (e923df)

  133. A downside to this certainly must be the impact on doctors. There are already doctor shortages taking place (see Massachusetts or Canada, because of a similar practice already in place).

    Doctors will also face more burdensome accounting and paperwork for less compensation, they will have less incentive to deal with the individual patient as it will all be about numbers, etc. And, all that schooling and massive student loans will certainly become that much less appealing.

    Dana (292dcf)

  134. Comment by Dad — 6/28/2012 @ 8:19 am

    – Dad, it’s time for us to put you in “the home”. Sure hope those Medicare cuts in the ObamaCare law don’t lessen the quality of care you’ll receive too badly!

    Icy (9ccb08)

  135. I think Justice Roberts ruled the penalty is not a capitation tax, because it is a tax on not having health insurance. And I think it has exemptions for some people

    The whole issue of the tax is discussed after page 35 of the opinion. It is not unlawful to pay the penalty instead of buying insurance (or buying insurance of a different kind which does not qualify)

    Sammy Finkelman (976d9e)

  136. The first argument is silly. Working people typically have health insurance through their employer, so they won’t pay the tax.

    The people most likely to choose the tax are healthy young people, who are disproportionately unemployed. Those that are employed are often in menial jobs that don’t offer insurance. The ACA impacts those too; some will get cheap insurance, some will lose their jobs as the companies cut back to pay for insurance or a penalty, and some will have to pay the tax anyway.

    Kevin M (bf8ad7)

  137. Comment by Ed from SFV — 6/28/2012 @ 8:21 am

    Wait till the folks learn that the tax will be collected against expected refunds.

    They won’t learn that till it happens, unless somebody alerts them

    Obama’s fate was sealed today. It’s 1980, baby.

    For this alone, 2016 is 1980.

    Sammy Finkelman (976d9e)

  138. ==The first argument is silly. Working people typically have health insurance through their employer, so they won’t pay the tax.==

    Boy are you seeing things through rose colored glasses. Sure, some companies will bite the bullet, but in this lousy economy many more employers will give up (or already have given up) their funding of employee healthcare insurance altogether and will refuse to pay the bloated premiums for over broad coverage Kathleen is ordering. Instead, they will pay a fine/or give a “subsidy” to the employee to find a policy or to pay the individual fine/tax. And god help the retirees of the formerly big American corporations.

    Today is the day “if you like your doctor you can keep him or her–if you like your insurance plan you can keep it” rubber meets the road. There’s going to be a lot of flapping tires and surprised, unhappy people when the dust settles.

    elissa (bd6062)

  139. 85. How will the public ever know what legislation means if the Court can interpret it to mean the opposite of what Congress and the President says it means?

    Comment by DRJ — 6/28/2012 @ 7:51 am

    My cheery thought for the day: it’s not important that the public knows, only that they comply with the unlimited power of the state.

    Congress can write whatever legislation they want, and by Roberts’ reasoning the SCOTUS will then perform whatever mental gymnastics it needs to rule it Constitutional.

    Up is down. Black is white. Penalty is tax. The Senate bill is a House bill. Whatever it takes for the black robed super legislature to maintain it’s political viability and rubber stamp the junior legislature’s power grabs.

    Arbitrary, unlimited authority is the hallmark of a tyranny. Welcome to yours, DRJ.

    Steve57 (c441a6)

  140. It should be pointed out that Obamacare OUTLAWS straight health insurance: paying a fee to cap annual health expenditures is not allowed. You MUST buy pre-paid medical services as well.

    Kevin M (bf8ad7)

  141. Why in the world should the disparate intents of Obama and hundreds of different legislators affect the Supreme Court’s reading of the ACA? They have a text.

    Comment by Leviticus

    I guess the legislature really did have to pass it to find out what’s in it.

    This is not a representative democracy. It’s just fraud.

    Dustin (330eed)

  142. From the dissent:

    For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling…
    Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

    Amphipolis (d3e04f)

  143. It’s certainly not a representative democracy. A lot of people wanted to talk about a single-payer system. Max Baucus decided that he did not want to talk about that. So that debate never happened.

    Leviticus (e923df)

  144. Why in the world should the disparate intents of Obama and hundreds of different legislators affect the Supreme Court’s reading of the ACA? They have a text.
    Comment by Leviticus — 6/28/2012 @ 8:29 am

    – You are right in the sense that Obama claiming “it’s not a tax” should have no bearing on the SCOTUS ruling. Wanna know where it DOES have a bearing? On the election. What is Barack going to do when he’s asked (and he WILL be asked this) “Why did you say that it’s not a tax when it is?” Is he actually going to be dumb enough to answer “I didn’t say that it’s a tax, CJ Roberts did”?

    Icy (9ccb08)

  145. freeloaders who are making health care more

    Comment by Kman — 6/28/2012 @ 8:14

    freeloaders who are making health care more expensive for the rest of us by their refusal to get insurance in the first place.

    That is exactly the opposite of the truth as has been proven in Massachusetts. People who go without health insurance may medical care cheaper and more available.

    The reason this the amount f health care used is not fixed. If there is no marginal cost people will see dctors more often. Overall, the amount of money spent on health care will go up The freeloaders are by and large people who would otherwise use medical care very little. Forcing them to buy health insurance which they will then use does not add much to their health, and it impacts other people by taking up the time of doctors.

    expensive for the rest of us by their refusal to get insurance in the first place.

    Perhaps you are more of a faux liberal, as no doubt your leftist friends are right now high-fiving each other….

    Oh, nothing faux about me. I’ve been doing the high-fives.

    am

    Sammy Finkelman (976d9e)

  146. Anyhoo, I predict that between now and November all those who were saying the TEA Party was dead will find out they were wrong.

    Those TEA leaves are a lot easier to read then the tea leaves everyone was reading about how this decision would go.

    Steve57 (c441a6)

  147. There again, I forgot to remove the quote.

    Sammy Finkelman (976d9e)

  148. But seriously – Dustin, DRJ, Patterico – do you guys really think that the Justices should be taking into account what people did or didn’t say about the ACA when they have the ACA itself in front of them, to read for themselves?

    Leviticus (e923df)

  149. According to the SCOTUS’ definition of “tax,” Obama can force people to suck his dick under penalty of a $5,000 tax if they don’t.

    CrustyB (69f730)

  150. Obamacare is unworkable. One of two things will happen over the next few years.

    1) Romney is elected. Congress repeals even if the Senate has to destroy the filibuster rule to do it.

    2) Obama is re-elected. The ACA proves impossible and the insurance industry collapses under its weight. A payroll-tax single payer system (“Medicare for everyone”) comes to the rescue. Which has been the plan all along.

    Kevin M (bf8ad7)

  151. Very good point, Dana. (#133)

    And it is very true.

    Charlotte (4c5f92)

  152. ObamaCare is a Tax, which means it must be collected by the IRS.
    Advice to IRS: See Col. Troutman’s advice on logistical supplies.

    Question for IRS:
    How do you wish to collect this tax?
    In increments of 147gr, or 230gr?

    AD-RtR/OS! (b8ab92)

  153. Comment by Steve57 — 6/28/2012 @ 8:39 am

    Congress can write whatever legislation they want, and by Roberts’ reasoning the SCOTUS will then perform whatever mental gymnastics it needs to rule it Constitutional.

    There’s precedent for that. they will do that, if there is no substantive difference in the law if you understand it a different way than what has been described.

    Sammy Finkelman (976d9e)

  154. July 4th is right around the corner. TEA Party protests anyone?

    Kevin M (bf8ad7)

  155. Leviticus,

    The Court does have the text, and that’s my point. Where does it say tax in the text of the ACA?

    Also, see Amphipolis’ excerpt from the dissent, above. That says it better than I did.

    DRJ (a83b8b)

  156. Comment by Kevin M — 6/28/2012 @ 8:36 am

    and some will have to pay the tax anyway.

    Owe the tax, not pay the tax. Congress specifically provided that this is not to be treated like other IRS debt but more like student loan debt.

    Sammy Finkelman (976d9e)

  157. Sammy:

    Owe the tax, not pay the tax. Congress specifically provided that this is not to be treated like other IRS debt but more like student loan debt.

    That’s your argument? Really?

    DRJ (a83b8b)

  158. It’s a tax. Which makes it a pyrrhic victory for Obama. We will now have 2 years of huge tax increases between this and the expiration of the Bush tax cuts-if Obama is reelected. Whether Mr. Romneycare can make the case remains to be seen.

    John Roberts, meet Roger Taney-in hell.

    Problem is like every Scotus decision since Douglas and Brennan’s emanations and penumbras we get no real resolution for the 9. Part of the Constitution’s design is to lag things and gum up the works among and between the 3 branches. But increasingly we are truly ruled by the 9 and what they decide. And not sure which ever side wins these decisions if that is truly democratic nor republican. In fairness we are in this situation because Congress and the Presidency have often abdicated their responsibilities and allowed the Court to fill the void. Witness the debt.

    Bugg (403960)

  159. “…student loan debt.”

    Oh, it can’t be discharged in BK?
    Doesn’t that put the “citizen” into Involuntary Servitude to the Federal Government?

    AD-RtR/OS! (b8ab92)

  160. Then it isn’t a tax, Sammy? It’s a optional payment? What? Roberts has made a mockery of himself; and so young.

    Kevin M (bf8ad7)

  161. ==Tax Laws must originate in the House, but ObamaCare was not passed as a tax, so passing the Senate’s bill was acceptable.
    Now that it is a tax, does the House get another bite at this apple? ==

    I don’t know if it will be a successful effort, or in what venue or how it will be approached– but I will be shocked if this does not get raised as an issue. If I were a member of the House of Representatives this circumvention of my congressional body’s authority would be a big deal to me regardless of the party I belonged to.

    elissa (bd6062)

  162. What a revoltin’ development!

    “The Supreme Court sets the limits of enumerated powers”. A real profile in courage, Mr. Roberts.

    I blame Boosh.

    This AM NPR was reporting JPM may have lost $9Billion hedging their hedge.

    The wheels aren’t coming off, the axle has snapped.

    gary gulrud (dd7d4e)

  163. That’s your argument? Really?

    Better than Roberts’

    Kevin M (bf8ad7)

  164. Sammy,

    In fairness, perhaps your point is that there is no criminal enforcement of failure to pay the penalty. Is that what you’re saying?

    DRJ (a83b8b)

  165. ________________________________________________

    CNN reporting mandate struck down.

    Wow. That’s like the headline decades ago of “Dewey Wins!”

    The IRS is the biggest winner in this debacle. Obama not long ago pushed through a huge increase in the tax agency’s budget to hire more agents, and the Supreme Court gave him a big hug today.

    Mark (71109d)

  166. But seriously – Dustin, DRJ, Patterico – do you guys really think that the Justices should be taking into account what people did or didn’t say about the ACA when they have the ACA itself in front of them, to read for themselves?

    Comment by Leviticus

    Legislative intent is helpful in interpreting vague legislation. For example, the ACA doesn’t actually say it’s a tax. Deciding to interpret it as a tax is basically rewriting it.

    They are going way too far to find a way to make an unconstitutional law constitutional.

    Dustin (330eed)

  167. Just heard Romney’s reponse to the ruling, nice to hear his continued reference to the “tax” in his call to repeal.

    Dana (292dcf)

  168. Leviticus,

    As Randy Barnett explained 2 years ago:

    Congress simply did not enact the personal insurance mandate pursuant to its tax powers. To the contrary, the statute expressly says the mandate “regulates activity that is commercial and economic in nature.” It never mentions the tax power and none of its eight findings mention raising any revenue with the penalty.

    Moreover, while inserting the mandate into the Internal Revenue Code, Congress then expressly severed the penalty from the normal enforcement mechanisms of the tax code. The failure to pay the penalty “shall not be subject to any criminal prosecution or penalty with respect to such failure.” Nor shall the IRS “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section,” or “levy on any such property with respect to such failure.”

    In short, the “penalty” is explicitly justified as a penalty to enforce a regulation of economic activity and not as a tax. There is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress.

    Obviously Roberts doesn’t agree, but I think Barnett is right and Roberts is wrong.

    DRJ (a83b8b)

  169. Comment by Dustin — 6/28/2012 @ 8:13 am

    Oh, OK. Yes, legally this is fine. Politically it’s not, hence the need for deception when passing the law.

    No, no, legally, per the Supreme Court, it’s a tax. Politically, and in the text of the law it is a sort of fine, or was intended to be.

    Justice Roberts noted in his opinion that the law stated that the penalty/tax cannot go above the cost of the health insurance by which it might be avoided, and that was significant, in his mind, in ruling this a tax, rather than a penalty. By the way, that’s one point. The tax/penalty is scheduled to get closer to the cost of the insurance as time goes on.

    Sammy Finkelman (976d9e)

  170. How does the tax evasion work?

    If I pay my income tax and not my Obamacare Tax, what’s to stop them from accepting payment for the Obamacare Tax and saying I owe them for the enforceable Income Tax?

    Dustin (330eed)

  171. From now on, we shouldn’t call it Obamacare, but rather call it the Obamacare Tax.

    Dustin (330eed)

  172. And note, Leviticus, Barnett is looking at the Act itself. Not what the President said or the contemporaneous reports. The Act.

    DRJ (a83b8b)

  173. How is any tax not a mandate?

    Dustin (330eed)

  174. The people most likely to choose the tax are healthy young people, who are disproportionately unemployed. Those that are employed are often in menial jobs that don’t offer insurance.

    Sure, now! But the ACA will make health insurance more affordable

    Kman (5576bf)

  175. Dustin,

    The law mandates we have do things that aren’t taxes. The question is whether this mandate is a tax, not whether every tax is a mandate.

    DRJ (a83b8b)

  176. True, DRJ.

    Not every mandate is a tax.

    But every tax is a mandate.

    The root issue here is whether the government can mandate someone to buy health insurance they don’t want. It is obvious what the framers would say. I think it’s obvious what the constitution says.

    Dustin (330eed)

  177. ==A lot of people wanted to talk about a single-payer system. Max Baucus decided that he did not want to talk about that. So that debate never happened.==

    Leviticus–You do not understand yet, do you? Big insurance and big pharma lobbied, and bought and paid for the passage of this very special version of Obamacare. They wanted the individual mandate, the expensive policy enhancements, and all the new “customers” Obamacare supposedly brings to the table. Single payer is a lose-lose for them and for most doctors. That is why it was not discussed and a major reason the “debate never happened” on the left side of the aisle.

    elissa (bd6062)

  178. Conservatives turning on conservatives, same old story.
    Gary-is Murrays Steakhouse still alive in Mpls?

    mg (44de53)

  179. I’ve seen a lot of references to Article 1, Section 9, Clause 4 which states:

    No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

    It seems to me that it would make this “tax” illegal… if it hadn’t been repealed by the 16th Amendment:

    The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

    QuadGMoto (3eb042)

  180. The second argument is only slight less silly. It depends on what Obama meant by “tax”. It’s not an across-the-board tax on everyone, only on those who refuse to get health insurance.

    Dude, you’re going all Clintonian on us, remember: Depends on what the meaning of is is!

    Andy (b63f79)

  181. BTW, if you make a decent income and choose not to have health insurance the penalty can be quite large. Calculator here.

    Example: Single, over 26, income of $100K. Penalty is $2244. Young successful people might actually choose health insurance as the cheaper option, and the penalty is coercive to them.

    Kevin M (bf8ad7)

  182. 161. I don’t know if it will be a successful effort, or in what venue or how it will be approached– but I will be shocked if this does not get raised as an issue. If I were a member of the House of Representatives this circumvention of my congressional body’s authority would be a big deal to me regardless of the party I belonged to.

    Comment by elissa — 6/28/2012 @ 8:55 am

    This would be an interesting circus. The House could vote to join a suit by the states that this is an illegal tax because it originated in the Senate. And the House, and the states, contend it’s a penalty and not a tax.

    Then we could watch the judiciary jump through hoops as it declares it does not want to intervene in a political contest between the two portions of the legislature as it fights over Chief Justice Roberts’ rewrite of the law they passed.

    It would help clarify that we have rule by judges, not by law, and when the SCOTUS rewrites a law to fit some sort of justification that its Constitutional its rewrite is final.

    Steve57 (c441a6)

  183. QGM–

    Seeing the calculator, the tax is somewhat related to income so I guess you could hang it on that. Certainly better than you can hang the whole ACA on the tax power, BWDIKIANASCJ.

    Kevin M (bf8ad7)

  184. I’m absolutely gutted by this. But attempting to make a silk purse out of a sow’s ear….

    1. OK, so it’s a tax. They can’t rule on it as a matter of good/bad, wise/benighted policy. They also can’t find a *tax* to be unconstitutional in advance of someone paying it. Door open for challenges in 2014 once it takes effect, and being struck down for some sort of reason then?
    1.a. Reasons as a tax it might be unconstitutional: unequal coverage under the law (waivers). Any others?? Process under which it was passed?

    2. Commerce clause at least was upheld as not applicable, not infinite. Big whooptie-do. I’d like to be ‘excited’ by this but in context, it’s still leaving me flat.

    3. Feds cannot force states to expand Medicaid roles or lose existing funding, but can force what they use additional funding for. This one may be tricky. States that don’t want to expand coverage don’t have to. States that want to can, and the feds give them more money to do so…but it’s money they already don’t have, and can no longer penalize from the noncompliant states. On the funding front this is going to hammer the entitlement spending expansion, hard, with all that entails (rapidly rising deficits), if many states decide to go that route. On the policy side it means the law doesn’t really now “cover” all those Oemporer claimed it would. On the social side, I guess strongly conservative states that choose not to expand might benefit from an exodus of those seeking benefits, but liberal states are going to see an explosion of they can’t keep up with and start folding like cities in CA already are. Seriously deep divides between states are going to form….

    4. The whole “Obama lies” trope is out in the open now. Play the Stephanotrollus (sorry, never forgave that jackdaw for the Clinton lapdog years) tape over and over and over. It’s a tax. It’ll hit those in the middle to lower middle most of all…and for those of you in conserative states all your money is going to the liberal states that do choose to enact the expansion. Might be one heck of a tea-party rallying cry.

    Most of all though….I’m still just gutted. I have at least 10 years to retirement. Time to really, really seriously look at where, if this election doesn’t give us the majorities and president to reverse.

    rtrski (336865)

  185. The “Shining City on a Hill” has fallen. The “Last, Best Hope for Mankind” has died. No matter if we repeal this bill someday it’s over. Our economy is on the verge of collapse. Medicare is bankrupt in 4 years. Government can tax inactivity. They can force us to do anything they want through taxation.

    NJRob (fe68e7)

  186. _________________________________________

    Moreover, while inserting the mandate into the Internal Revenue Code, Congress then expressly severed the penalty from the normal enforcement mechanisms of the tax code. The failure to pay the penalty “shall not be subject to any criminal prosecution or penalty with respect to such failure.”

    I’m confused about this. So the mandate can be pretty much ignored or flouted by taxpayers? So all the new agents hired by the IRS — Obamacare is great for creating new jobs! — while they’re pushing pens and shuffling papers, can be told to go to hell if they start fussing over my tax return in the section that pertains to mandatory health insurance?

    Mark (71109d)

  187. I think it’s too late to bring up the technicality of House/Senate origination. And, likely, the Senate did their usual thing of taking a dead House tax bill, deleting everything, and “amending” it with their plan.

    Kevin M (bf8ad7)

  188. BTW, if you make a decent income and choose not to have health insurance the penalty can be quite large.

    I believe the penalty cannot exceed the average cost of health insurance.

    Kman (5576bf)

  189. The “Shining City on a Hill” has fallen. The “Last, Best Hope for Mankind” has died.

    Alright. No one goes on TV crying about how democracy has ended in this country. Please.

    Kevin M (bf8ad7)

  190. The first argument is silly. Working people typically have health insurance through their employer, so they won’t pay the tax.

    And with the hundreds of employers that have already dropped coverage, and the thousands soon to follow …

    JD (ad6f40)

  191. Rush Limbaugh says this makes Obamacare the largest tax increase in the history of the world (I don’t know if he made the calculations, but he’s valuing the entire cost of insurance)

    It’s a massive regressive tax on all Americans, he says. The insurance companies, for as long as they last who are the ones who collect the tax (that’s the expanded view of the tax. Justice Roberts did not call insurance premiums a tax, but only the alternative. And choosing the tax rather than the insurance is completely legal. Congress predicted many people would pay the penalty and didn’t seem too bothered by that.

    Sammy Finkelman (976d9e)

  192. Kman,

    1) if it equals the cost of health coverage (or even comes close) it is coercive, despite what the CJ said. Which was my point. But I don’t think that’s an actual limit.

    2) The penalty is waived if the cost of health insurance exceeds 8% of your income, which won’t be the case here (although this will mean that all those folks who were supposed to be “helped” won’t be).

    Kevin M (bf8ad7)

  193. But the ACA will make health insurance more affordable

    You’re funny. No, health insurance won’t be more affordable. Quite the opposite, in fact. Health insurance will now be more expensive, because nothing was done to contain the cost of health care, and there will be more demand for health care.

    What happens when employers just drop health insurance as a benefit?

    Chuck Bartowski (3bccbd)

  194. The Supreme Court having stated definitively that not buying the insurance product the government endorses is completely legal, you can expect more companies and individuals to choose that alternative. Especially people who aren’t getting tax refunds now already anyway.

    And we can expect some hospitals to sign people up fr health insurance in emergency rooms.

    Sammy Finkelman (976d9e)

  195. Its more than a bit astounding that the Supreme Court had to find a basis for upholding the law that the law’s defenders specifically repudiated.

    The administration could not find a majority on the Supreme Court for its constitutional theory – the Solicitor General “lost” his argument.

    In a way, I think that this result by the Supreme Court is what really undermines the court’s reputation. Finding an excuse for upholding the law that wasn’t presented to it.

    SPQR (26be8b)

  196. Sure, now! But the ACA will make health insurance more affordable

    Demonstrably untrue, no matter how many times you bleat it.

    JD (ad6f40)

  197. Obama’s life just got easier. He already wrote off the reddest red states, so now all he has to do is go to the blue and swing states and proclaim how “The Republicans are going to take away your health care, and re-electing me is the only way to stop them.” He’ll probably welcome polls that say Congress is sure to go Republican.

    Meanwhile, Romney has to walk a tightrope. In red states, he has to say “Repeal, Repeal, Repeal.” But everywhere else he has to say “Replace with something sustainable and affordable.” That’s not as clean and neat, so it will be a harder sell. Plus, Romney will have to be something of a flip-flopper since his message will vary in different states/areas. I guess the GOP is lucky he’s an accomplished flip-flopper.

    DRJ (a83b8b)

  198. The only remaining argument I see is for individuals to challenge the penalizing taxing debt-imposing of “catastrophic coverage” (aka “insurance”) on an as-applied basis. If one can show the ability to cover the floor amounts, a no-rational-basis challenge might work.

    Kevin M (bf8ad7)

  199. Sure, now! But the ACA will make health insurance more affordable

    For sick deadbeats, certainly.

    Kevin M (bf8ad7)

  200. It is remarkable how utterly dishonest this entire process has been. Even today, after winning at the SC, Kmart is still here lying. Now that it is over, it seems line they could drop the charade.

    Single payer and rationing here we come.

    JD (ad6f40)

  201. Agreed, Sammy. It won’t be long before everyone but Congress, the Supreme Court and the White House will be on Medicare-equivalent government plans.

    DRJ (a83b8b)

  202. __________________________________________

    BTW, if you make a decent income and choose not to have health insurance the penalty can be quite large. Calculator here.

    One thing to keep in mind is not just John Roberts, but some judges at the lower level who also are affiliated with the right, or at least were chosen by Republicans, accepted the idea of the government mandating health insurance. And there’s certainly a lot of squish in Romney’s ideology regarding this matter.

    Regrettably, I think many Americans who currently pay for health insurance — so, emotionally, the issue of the government meddling in who has or doesn’t have such insurance tends not to phase them too much — or who have comfortable enough incomes that this controversy becomes so much background noise, can very easily be no less squishy about Obamamcare.

    This becomes a variation of the dynamics evident in the nature of political correctness gone berserk. So, in one notorious example, even an anti-American, pro-Islamic-spouting member of the US military was tolerated and even ignored by no less than other members of the US Army. And then the Fort Hood massacre ensured.

    Mark (71109d)

  203. DRJ,

    Your criticism is a fair one. If the Court thought that the ACA would be valid under Congressional tax & spend powers, but recognized that Congress had passed the legislation under (overextended) Commerce Clause powers, the Court should have said “This is not legit under the Commerce Clause; it would be legit under the Tax Clause. Take it and vote on it again, while calling it what it is. If you are able to pass it again, called by its proper name, it will stand.”

    I don’t know if Randy Barnett’s statement that “there is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress” is fully accurate. One could argue A) that the Court simply states whether or not a piece of legislation, as written, conforms with the Constitution, and that we should not muddy the issue by allowing Congress to circumscribe judicial review by procedural head fakes even if those same head fakes are an accepted part of the political game.

    One could also argue B) that it was the primary purpose of Congress to effectuate the substantive provisions of the ACA by whatever line of reasoning the court would accept, and that by allowing the favorable (i.e. Constitutional) reading of the ACA to govern the Court respected Congressional intent in an appropriately flexible manner. In other words, one could argue that Congress did not intend to pass legislation under their Commerce powers so much as they intended to implement a particular healthcare reforms.

    But I’m more inclined to A) than B). I don’t want our Courts involved in Congress’ political games in any way, shape, or form. I just want them reading legislation for Constitutionality.

    Leviticus (e923df)

  204. Where’s the “Downfall” version?

    QuadGMoto (3eb042)

  205. Comment by Mark — 6/28/2012 @ 9:15 am

    So the mandate can be pretty much ignored or flouted by taxpayers?

    Yes, like student loan debt. It may not even damage your credit rating.

    So all the new agents hired by the IRS — Obamacare is great for creating new jobs! — while they’re pushing pens and shuffling papers, can be told to go to hell if they start fussing over my tax return in the section that pertains to mandatory health insurance?

    If it will be on tax forms, there will probsbly be a separate form to be filed with your income tax return that will describe where you have health insurance. It could also be filed independently.

    If no such form is on record, and the record might be kept by the Social Security Admninistration, I mean I don’t know who keeps the record of who has health insurance and who does not and for what months, a tax penalty will be assessed, separate from other tax issues.

    This will only come into play when the time comes to issue a refund. The tax/penalty will be a hold on all checks (or direct deposits) from the IRS to you. Or maybe not all, I don’t know. Social Security checks too? It’s in the law no doubt, but nobody has reported on that,

    Sammy Finkelman (976d9e)

  206. No, health insurance won’t be more affordable. Quite the opposite, in fact. Health insurance will now be more expensive, because nothing was done to contain the cost of health care, and there will be more demand for health care.

    The cost of health care is high because, as things are now, we are subsidizing those freeloaders who get health care without having the means to pay for it. When an indigent person gets emergency room services and the hospital can’t get paid, who do you think (ultimately) picks up the bill?

    But with more people getting access to health insurance, that won’t happen. Also, people will engage in preventative medicine more (which is less expensive than ignoring medical problems until they become expensive and emergencies).

    What happens when employers just drop health insurance as a benefit?

    I don’t think that will happen, but even if it does, you can buy into the cheaper pools being created for small (or even one-person) businesses.

    *********************

    On another topic, I think the “Obama lied to us about it not being a tax” is laughable.

    You can’t “lie” about an opinion. Obama stated his opinion that the mandate is not a tax. He wasn’t trying to deceive anybody — just stating his viewpoint. The majority had a different opinion, that’s all.

    So if Obama “lied”, then so did Scalia, Thomas, Alito, and Kennedy.

    Kman (5576bf)

  207. As far as the penalty is concerned, if I owe taxes (as most do), but I slightly underpay my withholding so there is never a refund, can they take a standing ACA penalty out of my withholding and then claim I owe a penalty on my normal tax payments, now woefully insufficient?

    Kevin M (bf8ad7)

  208. “In a way, I think that this result by the Supreme Court is what really undermines the court’s reputation.”

    - SPQR

    I am shocked, shocked that you think that.

    Leviticus (e923df)

  209. if the republican controlled house doesn’t even have the balls to repeal the light bulb ban, i can’t see any possibility of obamacare ever being repealed.

    razor419 (c58c3c)

  210. “On another topic, I think the “Obama lied to us about it not being a tax” is laughable.”

    - Kman

    I agree. Obama said “This is not a tax.” The Supreme Court said “Yes it is, but Congress has that power so it’s okay.”

    Obama doesn’t get to constitutionally categorize legislation. Neither does Congress.

    Leviticus (e923df)

  211. Comment by Kevin M — 6/28/2012 @ 8:10 am

    Sammy, no it meant that the capitation is assessed on the State, and the State deals with it internally. Remember that in 1787 they didn’t have as good databases.

    But people could be found and counted. Can a tax assessed on a state be called a direct tax? Therefore I was thinking that the per person rate would be different in different states.

    I don’t think the court had very clear ideas. Such a tax was never assessed. So I don’t know what they were thinking about in 1787.

    Anyway Justice Roberts ruled this was not actually a capitation tax at all. Rather, it was a tax on not having health insurance (of a certain kind)

    That would be a peculiar type of tax. How about a tax on not owning a car? Or not owning a house?

    Sammy Finkelman (976d9e)

  212. _____________________________________________

    This will only come into play when the time comes to issue a refund. The tax/penalty will be a hold on all checks (or direct deposits) from the IRS to you. Or maybe not all, I don’t know.

    Then that runs counter to the idea that the mandate can be ignored without the taxpayer incurring any penalty or nuisance. IOW, if someone chooses to ignore the mandate, and if that in turn triggers some type of penalty — at the very least when it comes to a reduction in his or her (or their) tax refund — that means there is no less of a pain-in-the-ass repercussion from that as there is from any other violation of tax code.

    Once again, the biggest winner, by far, in this idiocy is the IRS. Everyone should quit their day job and apply to become a federal tax agent.

    Mark (71109d)

  213. Alright. No one goes on TV crying about how democracy has ended in this country. Please.

    Comment by Kevin M — 6/28/2012 @ 9:16 am

    Shove it.

    We don’t have a democracy. We have, or had, a republic. The socialists in government stole elections, manipulated events to pass an unconstitutional bill and then the Court rubber stamped it because they were too cowardly to admit the bill as written was unconstitutional. According to the court, there is no limit on the taxing power of the government. All behavior can be dictated through penalty.

    NJRob (fe68e7)

  214. What happens when employers just drop health insurance as a benefit?

    I don’t think that will happen, but even if it does, you can buy into the cheaper pools being created for small (or even one-person) businesses.

    I dream of unicorn fairies shltting pixie dust and skittles.

    JD (ad6f40)

  215. Dow is down 142

    RB (678718)

  216. 78. Damn, that girl writes decent.

    gary gulrud (dd7d4e)

  217. Comment by Kevin M — 6/28/2012 @ 9:33 am

    As far as the penalty is concerned, if I owe taxes (as most do), but I slightly underpay my withholding so there is never a refund,

    Most people do the opposite. You are doing the type of thing Rush Limbaugh seems to recommend.

    If you owe more than $1,000, and you withheld less than 90% of that year’s tax r 100% of the previous year’s tax, you may have to start filing and paying estimated taxes. Something like that.

    can they take a standing ACA penalty out of my withholding and then claim I owe a penalty on my normal tax payments, now woefully insufficient?

    I don’t think so. The penalty/tax can only be collected against tax refunds. It’s not part of the income tax – it’s a separate tax. If you always have to write a check, there’s nothing to withhold it against.

    I don’t know if the penalty/tax carries with it any interest or penalties for not making timely payments. The news media haven’t been interested (or diligent) enough to find out and inform us about that.

    Sammy Finkelman (976d9e)

  218. Taxes are headed way up in 2013 and revenues, their shoelaces tied, will try to keep up. This is prospectus season, doom is the forecast.

    We is well and thoroughly hosed.

    gary gulrud (dd7d4e)

  219. Comment by Mark — 6/28/2012 @ 9:45 am

    IOW, if someone chooses to ignore the mandate, and if that in turn triggers some type of penalty — at the very least when it comes to a reduction in his or her (or their) tax refund — that means there is no less of a pain-in-the-ass repercussion from that as there is from any other violation of tax code.

    There is less. You can avoid the whole problem by simply underwithholding, especially if the underwithholding is less than $1,000, or the amount withheld at least as much as last year’s ax liability, or 90% of that year’s tax liability.

    But if the government owes you money that year, that money is lost, at least to the extent it is not over 100% of the total accumulated not-having-government-approved-health-insurance tax.

    Once again, the biggest winner, by far, in this idiocy is the IRS. Everyone should quit their day job and apply to become a federal tax agent.

    I can imagine the problems with determining whether or not somebody was covered certain months or not. Or what about people who were illegally covered by their divorced spouse health insurance? When their divorce became final, the health insurance should have lapsed.

    Sammy Finkelman (976d9e)

  220. Who’s going to audit all that? Nobody. Or the insurance company after a lapse of years and then we discover somebody was not supposed to be on somebody else;s plan. So do they now owe the penalty? What if the insurance company mistakenly paid the bills, but they aren’t suing to recover?

    Sammy Finkelman (976d9e)

  221. ___________________________________________

    When an indigent person gets emergency room services and the hospital can’t get paid, who do you think (ultimately) picks up the bill?

    Regarding the example below, a belief that the US system acquiring the features of a society like France will be all milk and honey — rainbows and butterflies — is naive and a case of “be careful of what you wish for…”

    Surprise, surprise, the grass isn’t necessarily greener on the other side of the hill, and those rose-colored glasses sometimes can be awfully thick or opaque.

    theatlantic.com, Pascal-Emmanuel Gobry, March 2012:

    First of all, the French healthcare system is built on a large, highly-regulated private sector. Unlike Britain’s NHS, the government doesn’t own everything…. The sector is highly regulated and subsidized to be sure, but that’s also true in the US.

    Secondly, there’s a crucial feature at the heart of the French healthcare system that is also at the heart of the US healthcare system–and that all US wonks hate: employer-provided insurance.

    France has had a US-style employer-based healthcare system since the end of World War II, but the Couverture Maladie Universelle (literally: universal healthcare coverage), the government program that covers people who can’t get insurance, was only enacted in the late 90s (ah, global macro booms).

    The way healthcare works in France, basically, as I understand it from living here (and I may be wrong about this because it gives me migraines), is that you get insurance through your employer which they deduct from their taxes. You can also buy it on the market (and don’t deduct it from your taxes). If you can’t get insurance, the government will pay for your treatment in a system similar to (I think?) Medicaid, ie you go to the doctor or the hospital you want, and the government will pay for it in a stingy way that incentivizes you to not want to rely on the government too much but still ensures no one is left to die on the streets.

    Another thing you might argue, and again it’s probably true to some extent, is that the French healthcare system is really a house of cards: it may not be horrible, but it will be soon. A striking number of people inside the system I’ve spoken to seem to believe this: many people are convinced that French healthcare will no longer exist as we know it within 10 to 20 years because of (like everywhere else) budgetary pressure, exploding debt and Boomers retiring. This should probably cool the enthusiasm of so many France-loving US healthcare wonks.

    …American doctors just make way, way more money than French doctors, which drives up costs across the board. The reason why American doctors must make more money than French doctors is because medical school in France is free and medical school in the US is really, really expensive.

    And by the way, this is why doctor is such an unappealing profession in France…. Medical interns in France make less than the minimum wage per month (and therefore much, much less per hour) so if you want to become a doctor you had better have parents who can afford to support you into your late twenties.

    ^ BTW, a forumer who I tend to respect, Mike K — a retired doctor, btw — has often mentioned the French healthcare system as something worth emulating in the US. And whenever Mike speaks, I listen. But then I read somewhere that the average doctor in France makes around $40,000 per year.

    Mark (71109d)

  222. 93.The Executive Director of the DNC: It’s Constitutional. Bitches.

    Comment by Dustin

    theblaze is also reporting he tweeted, “TAKE THAT MOTHERFUCKERS!” and then deleted. i’m not finding it elsewhere, but i would hope they verified. they’re calling it an exclusive. i called the DNC and they denied it and hung up on me. :)

    razor419 (f9a159)

  223. Comment by Kevin M — 6/28/2012 @ 9:19 am

    2) The penalty is waived if the cost of health insurance exceeds 8% of your income, which won’t be the case here (although this will mean that all those folks who were supposed to be “helped” won’t be).

    I suppose that’s yearly income. I can see lots f problems here.

    And the penalty cannot be more than the cost of insurance.

    So it’s maximum 8% income tax.

    What happens when somebody loses a job?

    Sammy Finkelman (976d9e)

  224. What remains is that the Obamacare Tax exists. Romney needs to play up the fact that it is a tax on lower income people, and us it to pivot to the economy.

    OmegaPaladin (f2d931)

  225. Forget about repeal.

    Even if Romney is elected and the Republicans get a majority in the senate, there is no way they could overcome a Democratic filibuster.

    I can see legislative adjustments, and there are still court challenges to peripheral portions of it, but not repeal, ever.

    Law of the Land, folks. Law of the Land.

    Unless you want Romney to do an Obama and simply refuse to enforce it. Now I suppose that’s an option. What’s best for the country, right?

    Amphipolis (d3e04f)

  226. Sammy, elissa & Steve:

    Remember, there were two draft bills – Baucus’ in the Senate and Stupak’s in the House. They differed in content especially with respect to abortion. Kennedy croaked and the governor appointed Paul Kirk. The Senate bill passed first before they could seat Scott Brown who would have been the 41st vote against ObamaCare.

    The House approved the Senate Bill but could not change the language. It wasn’t a problem, because it was not a tax.

    Today, it’s a tax. What now?

    Arch (0baa7b)

  227. 1) Romney is elected. Congress repeals even if the Senate has to destroy the filibuster rule to do it.

    Doesn’t apply in this case. Tax repeals cannot be filibustered. :)

    Kaitian (da9520)

  228. ________________________________________________

    Unless you want Romney to do an Obama and simply refuse to enforce it.

    I’d hope Romney, or any non-liberal in the White House, would do just the opposite of this…

    thehill.com, April 2012:

    The Obama administration is quietly diverting roughly $500 million to the IRS to help implement the president’s healthcare law. The money is only part of the IRS’s total implementation spending, and it is being provided outside the normal appropriations process. The tax agency is responsible for several key provisions of the new law, including the unpopular individual mandate.

    The Obama administration has plowed ahead despite the legal and political challenges.

    It has moved aggressively to get important policies in place. And, according to a review of budget documents and figures provided by congressional staff, the administration is also burning through implementation funding provided in the healthcare law.

    Mark (71109d)

  229. Even if Romney is elected and the Republicans get a majority in the senate, there is no way they could overcome a Democratic filibuster.

    The Reconciliation does not apply to tax repeals fortunately. Why? The democrats did the same thing to pass this healthcare bill too!

    Kaitian (da9520)

  230. But with more people getting access to health insurance, that won’t happen. Also, people will engage in preventative medicine more (which is less expensive than ignoring medical problems until they become expensive and emergencies).

    We hear this crap a lot, and it’s just that, crap.

    “Preventative Care” doesn’t save money. It costs money. It may save large outlays for the individual for whom it ‘prevents’ a disease, in the small cases for which ‘prevention’ really can stop it. But it costs everyone getting the tests, a huge percentage (nearly a totality of which) are NOT getting the disease.

    Say a few rounds of chemo cost $1mil. And a good cancer screening test could ‘prevent’ that down to a quick $10k biopsy for early detection. $990k savings, wonderful!! But if the test costs $20, yearly, and on average only one of 100,000 people are found to have that kind of ‘easy early detection’ cancer per year…how many years does it take for the preventative care cost to outweigh the savings?

    You’ll just argue I’m ‘gaming’ the numbers. Hell, I assumed only 100k people get the test and that its a guaranteed near million dollar savings if you ‘find’ it. But even a flu shot costs nearly $20 these days, never mind some hypothetical ‘get out of cancer nearly free’ test.

    And that’s assuming there is any ‘guaranteed’ savings. Most things that preventative care like mammograms or colonoscopies can find will still cost serious money to treat if something is detected. The quality of (and chance of continuing) life improves with early detection – not the costs. Sad to say, often ‘late’ detection means people go straight from not spending health care money to mortality, with shorter periods of (expensive) morbidity in between.

    Preventative care costs money. It may be a right and good and just thing to pursue in a society that cares about quality of life. It’s something I want in my own life. But that’s not what *insurance* should cover, any more than car insurance should cover standard maintenance like oil changes and tire rotation (neither of which prevent wear, or larger-scale problems, they just slow it down and give opportunities to detect issues so I can make a more educated, not necessarily “less costly” decision about them.

    But stop it with the bullSHINE talking points about saving money.

    rtrski (336865)

  231. President Romney will (should) transfer all IRS agents to the new “Solar Panel Inspection Service”(created by EO), leaving the IRS with two employees:
    The Commissioner, and his/her Administrative Assistant – I’m sure the GSA will be happy to keep the lights on and the AC working!

    AD-RtR/OS! (b8ab92)

  232. Next step: Imposing a “tax” that requires all American citizens to join a health club. After all, regular workouts help the overall health of the citizens.

    Following that: A “tax” on those citizens who can’t prove that they have purchased their Recommended Daily Intake of fruits and vegetables in the last month. Same logic applies.

    JVW (f28a18)

  233. I should clarify #230. I don’t think preventative care is something insurance should be FORCED TO cover, in all policies. If I (or any other consumer) wants to pay for it as a part of a ‘health care plan’, then fine. There’s a market. I happen to be one who would buy it. But I don’t thing forcing the entire industry to provide it saves anything – it guarantees consumption of “preventative” care (because if I’m paying for it and DIDN’T want to, you can be damn sure I’ll use it so I don’t feel ripped off), and does not lower treatment costs in the vast majority of cases.

    rtrski (336865)

  234. Santorum said he would use reconciliation to repeal this. But remember, the slogan was: “Repeal and replace”

    The American public is going to expect some kind of replacement or they are not going to be very happy.

    From today’s Wall Street Journal column by Daniel Henninger:

    ….Whether Obamacare was affirmed or overturned by the men in robes, nothing was going to change one unimpeachable fact: From day-one the Obama health-care legislation was swimming against the tides of history. It was a legislative monolith out of sync with an iPad world. In the era of the smartphone, ObamaCare was rotary-dial health reform….The Republicans, to their discredit, don’t have an alternative to Obamacare, but at least they’re not still building more Titanics.

    Sammy Finkelman (976d9e)

  235. The Reconciliation does not apply to tax repeals fortunately. Why? The democrats did the same thing to pass this healthcare bill too!

    I’m sure you meant:

    The filibuster does not apply to tax repeals fortunately, due to Reconciliation rules. Why? The democrats used to pass this healthcare bill too!

    Kevin M (bf8ad7)

  236. “Repeal and Replace!”

    Yes!
    Every time I have a cancer cut out I demand that the surgeon offer at least two replacement choices.

    AD-RtR/OS! (b8ab92)

  237. 3. Feds cannot force states to expand Medicaid roles or lose existing funding, but can force what they use additional funding for. This one may be tricky. States that don’t want to expand coverage don’t have to. States that want to can, and the feds give them more money to do so…but it’s money they already don’t have, and can no longer penalize from the noncompliant states.

    Comment by rtrski — 6/28/2012 @ 9:14 am

    I don’t get your point. To me, the jokes on the states that don’t expand MediCaid and thus will see their residents’ (including businesses that owe federal taxes) tax money go to the states that do.

    In other words, a wealth transfer from the red states that won’t expand MediCaid to the blue states that will only be too happy to do so.

    Just like the jokes on Arizonans. Instead of performing Constitutionally required tasks of defending the country (as in the borders against invasion) the Feds under Obama will be using their tax money to expand the US Immigration Service so it can process the new paperwork required to facilitate a de facto amnesty and facilitate the invasion, the negative effects of which border states of which the border states bear the brunt of.

    Not only will the Feds use the income tax money that the people of Tombstone have to pay to prevent them from restoring their water supply that was destroyed by fires started by illegal aliens, now they have to fund the system that makes sure they can stay here and work.

    Steve57 (c441a6)

  238. I can think of a number of things that could be called rotary dial – like the provision that was repealed that had businesses supposed to keep track of the tax ID of vendors to whom they made payments including gasoline stations (when if you wanted to do it you could have banks handle all that) – I’ve got to find outagain just what that was.

    I am not sure what he means here except this is a sort of one size fits all program.

    Sammy Finkelman (976d9e)

  239. Constitution, article 1, section 7: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

    Obamacare was passed first by the Senate, then the House, and then the President signed it.

    Supreme Court, today: “In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”

    American Guy (534494)

  240. There needs to be some way to ensure that people who have paid continuously (or nearly so) for insurance are not priced out of the market if they get ill.

    Obviously, some in a group plan is protected for the most part, but private insurance can be very pricey. People who go from an employee plan to a private plan often find the cost is many times what the company was paying due to their health issues.

    This should be treated differently than the deadbeat who gets diagnosed with cancer and suddenly wants “insurance.” Obamacare, of course, favors the deadbeats.

    Kevin M (bf8ad7)

  241. Obamacare is unconsitutional for not being passed by the House first.

    American Guy (534494)

  242. …someONE in a group plan…

    Kevin M (bf8ad7)

  243. But that’s not what *insurance* should cover, any more than car insurance should cover standard maintenance like oil changes and tire rotation (neither of which prevent wear, or larger-scale problems…..)

    Wow. Your ignorant about both cars AND medicine. Of course oil change is necessary to prevent larger-scale problems. Same with tire rotation — more likely to hydroplane on worn tires.

    Same goes with preventative care.

    Kman (5576bf)

  244. 241. Obamacare is unconsitutional for not being passed by the House first.

    Comment by American Guy — 6/28/2012 @ 10:42 am

    If the Supremes can rewrite the text to declare the law Constitutional, I believe they can also play creative word games to rewrite the timeline.

    Steve57 (c441a6)

  245. “Preventative Care” doesn’t save money.

    Not in regards to the idea (again, only the idea) of using prevention in general to increase the status of people’s health, but the specifics of Obamacare, I’d say “Preventative Care” will be merely a variation of the government assisting the alternative-energy industry. And, consequently, flops like Solyndra.

    Washingtontimes.com, May 2012:

    After weeks of debate over whether the Prevention and Public Health Fund, created by President Obama’s health care law, affects women’s health, Republicans are airing additional complaints about the pool of money and how states and communities have used the fund to support a string of questionable initiatives.

    The argument that slashing the prevention fund would hurt women’s health has been widely debunked over the past week, but Republicans are honing in on the money stream for other reasons as well. Sen. Susan Collins of Maine and Rep. Darrell E. Issa of California, the top Republicans on the Senate and House oversight committees, are questioning whether the Centers for Disease Control and Prevention is using some of the funds properly. They said the “healthy living” money is being used to pay for campaigns to change state laws, which could violate federal rules against using taxpayer dollars for lobbying.

    Rep. Cliff Stearns, Florida Republican, who chairs the House Energy and Commerce oversight subcommittee, during a hearing Wednesday questioned the fund’s spending to promote recreational destinations, intergenerational urban gardening and community bike-sharing programs around the country.

    Money from one of the fund’s anti-obesity campaigns, Mr. Stearns said, was provided to Kauai, Hawaii, “to develop remote school drop-off sites to encourage students and staff to walk farther distances … to school entrances.”

    The fund was created in the 2010 health care law as a permanent money stream for public health programs that would be independent of the annual budget process. By the time it’s fully set up in 2015 it will receive $2 billion a year.

    The Centers for Disease Control and Prevention was awarded the bulk of the prevention fund money, and a review by The Washington Times of what it paid for over the past three years found only one line specifically focused on women’s health. According to an outline of the fund’s expenditures compiled by the National Association of County and City Health Officials, in 2012 the CDC received $7.1 million for a campaign promoting the health benefits of breast-feeding.

    ^ Why should Greece have all the fun in using government funds as Monopoly money, as funny money?! If it’s good enough for them, it’s good enough for us.

    Mark (71109d)

  246. @235, Yes I meant that way. Thanks for correcting me.

    Kaitian (da9520)

  247. There are plenty of studies in the medical field that demonstrate that, with only a handful of exceptions, “preventive care” does not reduce costs. Such studies show that the only programs that reduce costs in excess of the cost of the preventive care itself are cease smoking programs and some weight loss programs.

    Its astonishing that at this late date anyone at all interested in the topic would be so ignorant as to assert to the contrary.

    SPQR (26be8b)

  248. To get an exemption from the tax, on the grounds that your personal income is below 12 1/2 times the cost of the insurance, would someone have to apply for it?

    Would someone also have to have priced health insurance during the year? How? And when? What happens when somebody loses coverage because they lose a job or the employer drops it, or their age goes above 26, or they get dropped from someone else’s plan for any other reason?

    How are gaps in coverage accounted for? what about temporary drops in income? What if someone has insurance but stops paying the premiums?

    Sammy Finkelman (976d9e)

  249. Its astonishing that at this late date anyone at all interested in the topic would be so ignorant as to assert to the contrary.

    Comment by SPQR — 6/28/2012 @ 10:49 am

    Not from Kmart, who deliberately avoids reality so he can declare others ignorant.

    They are, of course, ignorant of the rules of the alternate universe in which he lives. The alternate universe that produced this monstrosity.

    Steve57 (c441a6)

  250. David Bernstein has pointed out that Scalia’s dissenting opinion reads as a majority opinion in format and references. It looks like Roberts’ change in vote was a late event, and as a result the Supreme Court’s whole end result is a hash and not entirely coherent. Part of it being that issues fundamental to upholding the act are not fleshed out as they should be.

    In the future, there will be a lot of speculation as to why Roberts shifted vote, and a lot of criticism about how that shift left the Supreme Court with an incoherent final result.

    SPQR (26be8b)

  251. My 225 above was apparently incorrect – the repeal of Obamacare can’t be filibustered

    http://nalert.blogspot.com/2012/06/obamacare-repeal-cant-be-filibustered.html

    Amphipolis (d3e04f)

  252. SPQR, I think we can conclude that Roberts was influenced by the political and media pressure the left brought to bear. He caved.

    This may not go down well with the “innocent until proven guilty,” “we need facts not speculation” types I encountered on the Sandusky thread. But as a matter of political reality it ought to be our position.

    If he can foist that Constitutionally unfounded abortion of a ruling on the country, he can sit back in silence and take all the well-deserved scorn we can pile on. If he doesn’t think it’s well founded, joke him.

    Steve57 (c441a6)

  253. Comment by American Guy — 6/28/2012 @ 10:42 am

    You are not allowed to question the Shamans.

    AD-RtR/OS! (b8ab92)

  254. Its astonishing that at this late date anyone at all interested in the topic would be so ignorant as to assert to the contrary.

    “Facts to a Liberal/Leftist, are as Kryptonite to Superman!”

    IOW, they are to be avoided at all costs.

    AD-RtR/OS! (b8ab92)

  255. 142. I guess the legislature really did have to pass it to find out what’s in it.

    Comment by Dustin — 6/28/2012 @ 8:40 am

    Would that the SCOTUS found what was in it, Dustin. Instead, to declare it Constitutional they had to find what wasn’t in it.

    Steve57 (c441a6)

  256. ____________________________________________

    Roberts was influenced by the political and media pressure the left brought to bear. He caved.

    I’m more surprised, and pleasantly so, that Anthony Kennedy was one of the non-liberals on the court who didn’t fall for the BS of Obamacare.

    As for Roberts and the reason he voted the way he did, I’ve observed various people of generally conservative (or non-leftist) bent (eg, Mitt Romney) who can be surprisingly wishy-washy about government mandates on healthcare. Some of them buy into the notion that such a requirement is similar to forcing drivers to buy auto insurance (when, in actuality, it isn’t). Or they resent that some in the public don’t have health insurance and therefore are glomming onto the system when they do need medical care. (And when some liberals share that opinion, they at the same time can be surprisingly tolerant and permissive if such users are the “undocumented.”)

    John Roberts could easily fall into one of those 2 categories.

    Mark (71109d)

  257. That would be a peculiar type of tax. How about a tax on not owning a car? Or not owning a house?

    JUSTICE SOTOMAYOR: We get tax credits for having solar-powered homes. We get tax credits for using fuel efficient cars. Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us.

    MR. CLEMENT: Well, I think it would depend a little bit on how it was formulated; but, my concern would be — the constitutional concern would be that it would just be a disguised impermissible direct tax. And I do think — I mean, I don’t want to suggest we get to the taxing power to soon, but I do think it’s worth realizing that the taxing power is limited in the ability to impose direct taxes.

    And the one thing I think the framers would have clearly identified as a direct tax is a tax on not having something.

    I mean, the framing generation was divided over whether a tax on carriages was a direct tax or not. Hamilton thought that was a indirect tax; Madison thought it was a direct tax. I have little doubt that both of them would have agreed that a tax on not having a carriage would have clearly been a direct tax. I also think they would have thought it clearly wasn’t a valid regulation of the market in carriages.

    And, you know, I mean, if you look at Hilton against the United States, that’s this Court’s first direct tax -

    From here

    Kevin M (bf8ad7)

  258. Re: 243, ok, fair point. Never getting an oil change guarantees you’ll burn your engine up. Can you say the same about preventative health care?

    Bad example.

    And whether I hydroplane or not because of bald tires, the coverage is for the accident, not for the tires. I don’t get remibursed for tires outside their useful life. My insurance could fight paying the bill because I didn’t get the ‘preventative care’. Can they do that with health care, under the wonderful ALPACA??

    Nope.

    So bad example on my part. Still doesn’t say preventative health care saves money in the net. You shot down the analogy. Not the reality. “Same goes” is no more logical than my poor examples.

    rtrski (b47753)

  259. Comment by Mark — 6/28/2012 @ 11:18 am

    The other reason that conservatives are sometimes open to insurance mandates is because the idea of someone freeloading — failing to purchase insurance but than availing himself of emergency care — is offensive to our principles. That was how Romney sold RomneyCare in Massachusetts. I don’t like this decision and I loathe Obamacare, but I do recognize that this is less cut-and-dried than a lot of conservatives would like to believe.

    JVW (f28a18)

  260. I don’t know if the penalty/tax carries with it any interest or penalties for not making timely payments.

    Well, if there can be no penalties, that would answer that, right? Or am I looking into the funhouse mirrors again?

    Kevin M (bf8ad7)

  261. We are now officially a bananna republic. The Constitution is dead.

    htom (412a17)

  262. About the Syllabus that appears at the start of many Supreme Court decisiuons:

    Syllabus

    NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

    I noticed something: Supreme Court decisions have paragraphs indented, just like the writing of Neal Rauhauser.

    Sammy Finkelman (d22d64)

  263. From Scotus liobe blog:

    Schumer: “Now that all three branches of government has ratified the law, the time for quarreling is over. The time for disputing its validity is over. Congress should now return to it’s full time focus: the issue of jobs and the economy in America.”

    Why does he want to talk about the economy?

    Sammy Finkelman (d22d64)

  264. Obamacare is unconsitutional for not being passed by the House first.

    *sigh*

    This requirement is pretty much a dead letter. What they do, routinely and in this case, is take some House bill that they don’t want to consider, gut it and replace it with their text. This way it “originated” in the House, and this seems to be enough to pass muster.

    Not everything the Founders put into the Constitution was well thought out. Just most of it.

    Kevin M (bf8ad7)

  265. http://www.scotusblog.com/2012/06/a-weird-victory-for-federalism/

    Randy Barnett Guest

    Posted Thu, June 28th, 2012 12:56 pm

    A weird victory for federalism

    Today, the Roberts Court….accepted all of our arguments about why the individual insurance mandate exceeded the commerce power…Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.

    They lost the war, but they won the battle?

    Sammy Finkelman (d22d64)

  266. How are gaps in coverage accounted for? what about temporary drops in income? What if someone has insurance but stops paying the premiums?

    There will be a Form.

    Kevin M (bf8ad7)

  267. Only possible hope from this nightmare is that Catholics will have to decide once and for all whether they are Catholic or Democrat. They cannot have this bill just disappear so they can return to their bubble. The Church will have to come out against this abomination once again thanks to the mandates.

    NJRob (fe68e7)

  268. JVW, I do think it is cut and dried. Essentially the only thing that makes the health care market unique is that the Congress mandated that hospitals that receive federal dollars care for anyone regardless of ability to pay.

    So they introduced cost shifting. People who had insurance saw their premiums rise as the costs for the indigent was shifted to the insured. Now, we’re giving what is ostensibly insurance to millions more people. The burden of paying is too large to be passed on to the already insured. So the uninsured who don’t use the system must be herded into the collective.

    This isn’t about “deadbeats” paying for their own care, as Kmart ludicrously declares (a demonstrable lie such as Obama’s claim that the penalty wasn’t a tax). This isn’t about personal responsibility.

    This is more analogous to fixing the problem of poor people or illegal aliens driving without car insurance by requiring people who don’t own cars, and thus don’t need the insurance, to require they buy it or pay a tax.

    We aren’t requiring that healthy young people buy insurance to cover their own costs, but others. This is why Max Baucus, after the ObamaCare ObamaTaxHike passed, drunkenly declared the ObamaTaxHike was primarily about wealth redistribution.

    It is. Anyone who argues otherwise is full of bovine excrement.

    Steve57 (c441a6)

  269. From the syllabus, about the mandate’s penalty being a tax:

    4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may beupheld as within Congress’s power under the Taxing Clause. Pp. 33–44.

    (a) The Affordable Care Act describes the “[s]hared responsibilitypayment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax.

    Meaning that while by not labeling this a tax they abandone

    ty that you would have to wait to challenge it until the tax was collected, they didn’t destroy the argument it was a tax, because those are two different issues.

    In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287,
    294. Pp. 33–35.
    (b)
    Such an analysis suggests that the shared responsibilitypayment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy healthinsurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.
    (c)
    Even if the mandate may reasonably be characterized as atax, it must still comply with the Direct Tax Clause, which provides:“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like acapitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion toits population. Pp. 40–41.
    5. CHIEF JUSTICE ROBERTS, joined

    Sammy Finkelman (d22d64)

  270. Let me boldface the syllabus. I tried toi insert a comment:

    In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287, 94. Pp. 33–35.

    (b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37.

    None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful.

    Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct.

    It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.

    (c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides:“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4.

    A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.

    Sammy Finkelman (d22d64)

  271. I am not surprised that Kennedy voted to overturn it. He is the least statist of the Justices on the bench, now. I should have half-expected that Roberts would vote to uphold it. He was a health indudstry attorney and this is good for the health industry. It enlarges the health care money pool in a big way.

    nk (875f57)

  272. Well, obviously we were mistaken.

    We thought the words were “We The People”, when it was actually “We The Peons”. (Or maybe, “We The Peed-On”. Whatever.)

    There’s no higher court to appeal to, is there?

    We are well-and-truly fu*ked. First the Arizona decision, then this…!!!!

    Secession, anyone?

    A_Nonny_Mouse (57cacf)

  273. Steve57,
    You are correct, but there’s word down on the farm that the bovine are getting sick and tired of being pulled into conversations merely because of their excrement.
    There’s even rumor of a new superpac being organised- “BOO”- Bovine Overdosed on Obama

    MD in Philly (3d3f72)

  274. NEW YORK v. UNITED STATES, 505 U.S. 144 (1992)

    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=kmarx&navby=case&court=us&vol=505&invol=144&pageno=149

    This maybe?

    The Secretary’s collection of a percentage of the surcharge is no more than a federal tax on interstate commerce, which petitioners do not claim to be an invalid exercise of either Congress’ commerce or taxing power.

    Sammy Finkelman (d22d64)

  275. Maybe its time to step back from the precipice and breathe deeply. Both left-leaning Slate and Jay Cost at Weekly Standard claim the ruling today is a long term victory for the Right.

    From Slate:There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered.

    Yes, Roberts voted to uphold the individual mandate, joining the court’s liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans are crying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.

    But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause.

    This is why the challenge to the ACA, and its progress through the courts, came as a surprise to Democrats and to mainstream constitutional scholars: Three years ago, there was no serious doubt that Congress had the power to impose the individual mandate. A Bloomberg story last week nicely captured the stakes: “Obama Health Law Seen Valid, Scholars Expect Rejection”:

    The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.

    Only eight of them predicted the court would do so.

    The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

    Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). Here’s the Chief Justice’s opinion (italics in original):

    “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce”.”

    The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

    Go read the whole thing and Jay Cost, too. Coming from both sides as it is, I am giving this interpretation serious and respectful consideration.

    elissa (bd6062)

  276. A_Nonny_Mouse #272 – there is the election in November, which has the potential to be that “higher court” to which to appeal …

    Obama had 2 years of close-to-supermajorities in House and Senate … give President Romney the equivalent, and there is still hope for change !

    Alasdair (11a2e2)

  277. AD-RtR/OS! #236 – isn’t “Repeel and Replace !” a marketing slogan for exfoliating skin care products ?

    Alasdair (11a2e2)

  278. From the court’s opinion:

    ….although the breadth of Congress’s power to taxis greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

    By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.

    The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

    Sammy Finkelman (d22d64)

  279. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.

    OK, legal scholars, help me out. How is this functionally different from a mandate under the Commerce Clause that requires a person to act or pay a penalty levied on that choice?

    I’m seeing a difference with no distinction.

    Steve57 (c441a6)

  280. _______________________________________________

    He was a health indudstry attorney and this is good for the health industry. It enlarges the health care money pool in a big way.

    That’s a point worth considering, since self-interest and good old-fashioned greed are reactions common in many, if not most, people. So I can see an unholy alliance of bigwigs of various ideological stripes being either, at worse, nonchalant about Obamacare or, of course, happily supporting it.

    BTW, the well-being of one’s oral health (ie, tooth care) has major impact on a person’s health in general. Decayed teeth are known to trigger immune responses in the body that can then lead to damage to the heart, etc.

    Most people who don’t require major medical attention during much of their lifetime will require at least a few visits to the dentist, if only to take care of pain due to cavities or other major issues with their teeth. So, if anything, getting all weepy-eyed about the public not having easy or cost-affordable access to dental care would make more sense.

    And if the Congress is so damn concerned about people’s health, then they should get rid of Daylight Saving Time, which they increased a few years ago. Not only is there a reported increase in heart attacks each year when the clocks are pushed forward and we, in effect, lose one hour of time (and sleep), but a lack of enough rest is closely tied to problems in human health.

    We live in truly stupid times.

    Mark (71109d)

  281. It is beyond bizarre that the Supreme Court rejected the prevailing party’s version of what was, and what was not, constitutional. The Solicitor General admitted that as a tax, it was unconstitutional as a direct tax.

    But that’s the kind of incoherent drivel we get from the four liberal justices, its a shame that Roberts chose to support it.

    SPQR (26be8b)

  282. For those too busy to do site switching here’s a taste of Jay Cost at Weekly Standard:

    First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.

    Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.

    Politically, Obama will probably get a short-term boost from this, as the media will not be able to read between the lines and will declare him the winner. But the victory will be short-lived. The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
    Conservatives have a shot at getting the best of both worlds: having the Supreme Court use Obamacare as a way to limit federal power while also using the democratic process to overturn the law. I didn’t think we could have one without the other, but now maybe we can.

    If Obama loses in November, that is…

    elissa (bd6062)

  283. Over at Volokh the point is made that the dissent written by Scalia refers to the “dissent” written by Ginsberg, and the suggestion is made that Robert’s decision was a late moment change of mind/heart, FWIW.

    http://www.volokh.com/2012/06/28/was-scalias-dissent-originally-a-majority-opinion/

    Any headless thoroughbreds seen lately?

    MD in Philly (3d3f72)

  284. This is good news for the health industry like finding a female Black Widow spider is good news for a male Black Widow spider. The “good” aspect quickly disappears.

    MD in Philly (3d3f72)

  285. Steve57, I don’t think that Roberts was responding to any partisan “pressure” at all.

    I think that he’s playing a deeper game than whether or not there is a health insurance mandate.

    The end result is that the curtailing of the Commerce clause has five justices on it, and is one of those weird pseudo holdings that arise from weirdly split rulings. He’s allowed the act to continue in existence but destroyed the liberal justices opinions in support of it almost entirely.

    SPQR (26be8b)

  286. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

    By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.

    I wonder if it has escaped the Chief Justices notice that if you fail to pay your taxes the federal government can also bring it’s full weight to bear. The penalties for which include fines, imprisonment, and all the attendant consequences of being branded a criminal.

    Again, I’m seeing a difference with no distinction. All I see is some muddle-headed judge trying to pretend he’s handed the people of this country some great victory that limits the power of the federal government to compel us to act under the Commerce Clause when he’s done no such thing.

    Now, the federal government can’t mandate we buy a Chevy Volt. They can just tax us if we don’t, as long as the tax isn’t punitive. Which in Chief Justice Roberts view means the tax can be no higher than the list price of the car.

    Steve57 (c441a6)

  287. Or another way to put it, if you comply with the mandate then the penalties are going to be no heavier than if you comply with the tax code.

    Again, what’s the diff?

    Steve57 (c441a6)

  288. No wonder the IRS put out a RFQ for 12 GA Shotguns Shourtly after Obama was elected.

    PCD (1d8b6d)

  289. blah….blah….blah……
    Reasonable minds can disagree. This case has legitimacy.
    But on this occasion I’d like to reprise the words uttered by Scalia in speeches some time after the illegitimate, outright theft of the 2000 presidential election by the Supreme Court’s Republican wing: “Get over it.”

    Oh, and watch when Romney, Cantor et al. get their pants pulled down in the attacks they’ve already begun. They will be confronted point by point on various aspects of the law and forced to say yea or nay…..and they’ll say nay…..on all those things originally pimped by Republicans and their Heritage think-tank, such as keeping kids on policies until age 26 and no refusals for pre-existing conditions, etc.
    Gonna be fun to watch.

    Larry Reilly (1f0e8d)

  290. Larry Reilly, and again you show up with the incoherent silliest comments. You are an infallible guide to what opinions are the stupidest, by marking them as your own.

    SPQR (26be8b)

  291. 285. Steve57, I don’t think that Roberts was responding to any partisan “pressure” at all.

    I think that he’s playing a deeper game than whether or not there is a health insurance mandate.

    The end result is that the curtailing of the Commerce clause has five justices on it, and is one of those weird pseudo holdings that arise from weirdly split rulings. He’s allowed the act to continue in existence but destroyed the liberal justices opinions in support of it almost entirely.

    Comment by SPQR — 6/28/2012 @ 12:02 pm

    If that’s what he was doing, I think he was being too clever by half.

    Instead of limiting the federal government’s power he provided them with the roadmap to how to properly grab unlimited power.

    “No, no, no,” Roberts said to the left, “this way.”

    Steve57 (c441a6)

  292. Steve57, I don’t agree with his action at all. The criticism of the ruling by Scalia that the majority justices having rewritten the legislation to make it “constitutional” have done grave damage to the courts’ reputation is correct.

    SPQR (26be8b)

  293. For those people mentioning that the bill did not originate in the House:

    I believe the Senate Bill originated in the house. The House passed an unrelated bill and the Senate stripped it of everything and replaced the verbiage with their version of the Obamacare bill. So the Senate bill did in fact ‘originate in the House.’

    Stupid, just as stupid as the quantum taxation theory, but legal. It’s a gimmick used for a long time.

    luagha (5cbe06)

  294. Steve57–just out of curiosity did you read either the Slate or Jay Cost clips I posted above? If so, what specifically do you disagree with with– or what logic do you find fault with–with respect to their take on the long term gutting of the commerce clause coupled with the short term opportunity to repeal Obamacare?

    elissa (bd6062)

  295. Meanwhile, there is a surge of donations going on this day to the Romney campaign and GOP party funds. 1.5 million dollars already to this hour.

    Some interpret the result as giving new impetus to the Romney candidacy. Obama may have won a battle and lost a war.

    SPQR (26be8b)

  296. 116- oh icy. It has everything to with it. We essentially pay for the health care of the masses now. If everyone has insurance we will at least be doing so in the most efficient methods.

    tye (f51325)

  297. Comment by nk — 6/28/2012 @ 11:39 am

    I should have half-expected that Roberts would vote to uphold it. He was a health indudstry attorney and this is good for the health industry. It enlarges the health care money pool in a big way.

    I thought he would say it would have be judged as a tax, if it failed on the commerce clause, and i thiought he would fail it on that, but I thought he would rule it an unconstitutional tax. That was probably wishful thinking and/or not understanding what the law said. It did not impose the penalty regardless of income. (of course that detracts from universal coverage, but they weren’t going into the question of whether or not the law lived up to its billing or made sense)

    Here is what Chief justice Roberts wrote on the question of whether this was a constitutional tax:

    The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax, ”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

    Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more thanimpose a tax. That is sufficient to sustain it.

    The “question of the constitutionality of action taken by Congressdoes not depend on recitals of the power which it undertakes to exercise.” Woods v. Cloyd W. Miller Co., 333 U. S. 138, 144 (1948).

    I don’t think that’s a good comparison because first, it’s an excise tax on windows, and second the window tax is really just an addition to the income tax. I don’t think he established in principle the the possibility of imposing a tax on NOT doing something. Roberts will deal with this briefly in a later paragraph.

    Anyway, continuing…

    Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution. Plaintiffs argue that the shared responsibility payment does not do so, citing Article I, §9, clause 4.

    That clause provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” This requirement means that any “direct Tax” must be apportioned so that each State pays in proportion to its population. According to the plaintiffs, if the individual mandate imposes a tax, it is adirect tax, and it is unconstitutional because Congress made no effort to apportion it among the States.

    Even when the Direct Tax Clause was written it was unclear what else, other than a capitation (also known as a “head tax” or a “poll tax”), might be a direct tax. See Springer v. United States, 102 U. S. 586, 596–598 (1881).Soon after the framing, Congress passed a tax on ownership of carriages, over James Madison’s objection that it was an unapportioned direct tax. Id., at 597.

    This Court upheld the tax, in part reasoning that apportioning such a tax would make little sense, because it would have required taxing carriage owners at dramatically different rates depending on how many carriages were in their home State. See Hylton v. United States, 3 Dall. 171, 174 (1796) (opinion of Chase, J.).

    It would be good to take a look at these decisions. Here you have the idea that appportioning it means a different rate in every state, not that the tax is imposed on the government of the state.

    The Court was unanimous, and those Justices who wrote opinions either directly asserted or strongly suggested that only two forms of taxation were direct: capitations and land taxes. See id., at 175; id., at 177 (opinion of Paterson, J.); id., at 183 (opinion of Iredell, J.).

    Yes, but why isn’t this a capitation tax? Roberts will offer an answer later.

    That narrow view of what a direct tax might be persisted for a century. In 1880, for example, we explained that “direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument,and taxes on real estate.” Springer, supra, at 602. In 1895, we expanded our interpretation to include taxes onpersonal property and income from personal property, inthe course of striking down aspects of the federal income tax. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 618 (1895). That result was overturned by the Sixteenth Amendment, although we continued to consider taxes on personal property to be direct taxes. See Eisner v. Macomber, 252 U. S. 189, 218–219 (1920).

    A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

    Now he deals with the question about this being a tax for an act of omission:

    There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act.

    If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstainfrom commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

    Three considerations allay this concern. First, and most importantly, 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.

    Since you can have capitation taxes, a tax merely for existing, with only the conidition that it must be divided among ths states in proportion to the last Census, that means you can also have a tax for existing without health insurance. In fact possibly you can have practically any kind of tax but Roberts doesn’t go into that He only says this is simolar to a capitation tax, which, can, theoretically, be levied. Of course there are political obstacles to such a tax, and no capitation tax hgad ever been imposed. When British Prime Minister Margaret Thatcher imposed something very much like that in the United Kingdom, (as a substitute for property taxes) and it was about to take effect in England, she was sudddenly ousted from her job as Prime Minister by her party. The individual mandate or the penalty is and was and shall remain very unpopular, and Obama and the democratic Congress knew what they were doing w
    when they didn’t have it hit till well after the 2012 election.

    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. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain,except death and taxes”).

    Sammy Finkelman (d22d64)

  298. I believe the penalty cannot exceed the average cost of health insurance.
    Comment by Kman — 6/28/2012 @ 9:16 am

    – Oh . . . well, that makes paying the government some of your hard-earned money for absolutely NO reason an okay thing to do, then.

    Comment by Kman — 6/28/2012 @ 9:32 am
    The cost of health care is high because, as things are now, we are subsidizing those freeloaders who get health care without having the means to pay for it. When an indigent person gets emergency room services and the hospital can’t get paid, who do you think (ultimately) picks up the bill?
    – NOT the insurance companies; that’s who.

    But with more people getting access to health insurance, that won’t happen.
    – More of the same “if we force everyone to have insurance, then their medical bills will get paid and costs will go down” b.s. Did you not listen to JD? You’ve won the day, so feel free to stop losing the argument.

    Also, people will engage in preventative medicine more (which is less expensive than ignoring medical problems until they become expensive and emergencies).
    – Translation: more people (hypochondriacs, people easily swayed by the “hey, those are MY symptoms!” reaction to big pharma tv ads) will go to the doctor more often, resulting in more charges from medical providers to insurance companies.
    But surely the increased revenue from premiums (where the price paid for each one will go down, you said) will cover all of those mounting charges; right? Got news for you, sweetie, the only thing that reduces the need for more care is to reduce risk; and MOST of the steps necessary to reduce risk are things to be done outside of the doctor’s office. When you say “preventative care” you’re mainly talking about early detection of catastrophic illness. Well, guess what; we all STILL get to choose when or if we go to the doctor — Nanny Bloomberg be damned.
    What’s next? Billboards everywhere saying “We forced you to buy insurance, so why aren’t you going to the doctor?”

    I don’t think that will happen, but even if it does, you can buy into the cheaper pools being created for small (or even one-person) businesses.
    – The fact that so many businesses want to opt out should be telling you something about how “affordable” the Affordable Care Act really is.

    On another topic, I think the “Obama lied to us about it not being a tax” is laughable.
    – Because . . . what, we should’ve known that he was kidding, not lying?

    Icy (9ccb08)

  299. “On another topic, I think the “Obama lied to us about it not being a tax” is laughable.
    – Because . . . what, we should’ve known that he was kidding, not lying?”

    He means the idea that it matters is laughable.

    Leviticus (102f62)

  300. Kman lied opinionated:
    You can’t “lie” about an opinion. Obama stated his opinion that the mandate is not a tax. He wasn’t trying to deceive anybody — just stating his viewpoint. The majority had a different opinion, that’s all.

    – This is interesting. And it goes a hell of a long way towards explaining MOST of the posts you have made during your time here at this blog.

    [BTW, it is my considered opinion that Kman buggers baby goats and then tells all of his friends "Yeah, I f*ck kids," and chuckles to himself at the little joke he made.]

    Icy (9ccb08)

  301. But its not laughable, Leviticus, as presidential campaigns can be made or broken on things like claims not to have raised taxes on the middle class, and reading lips.

    SPQR (26be8b)

  302. Well, is the solution to this conundrum the Repeal of the 16th-Amendment?

    AD-RtR/OS! (b8ab92)

  303. Off topic: the contempt vote in the House is beginning, the vote to approve the rules for the vote passed 254-173 with 15 Democrats voting in favor. That’s a good guess as to the margin voting for contempt against Holder. The Democrat defections are interesting.

    I’d be interested in comparing the number of Democrats voting for contempt with a list of Democrats who don’t show up at the nominating Convention later …

    SPQR (26be8b)

  304. elissa, there are two areas I find fault.

    First, while Roberts may have limited the federal government’s power to compel activity under the Commerce Clause, I don’t see where he limited the federal government’s power to compel activity.

    Instead of mandating an activity via the Commerce Clause they can achieve the same end via the tax code.

    Even worse, with this bizarre ruling he declared that if the Congress will pass a bill and that the President will sign into law an act that avoids the political consequences of explicitly stating they’re using the tax code to compel commercial activity, it’s the responsibility of the SCOTUS to fix it for them, by reading into the law the language they could have used, so that they don’t have to suffer the consequences at the ballot box.

    That’s the flaw I found with both.

    Second, I disagree with the Costa’s premise that the federal government can’t penalize states that don’t expand MediCaid. I didn’t agree with the author of “What’s the Matter with Kansas,” but one Thomas Frank’s theses was that it’s stupid for the residents of a state to pay into the federal coffers, then pursue “conservative” policies that mean they get back from the federal coffers less than they pay in.

    In his view, the smart thing to do is to vote in such a way to get back more in federal largesse than your own taxpayers pay in. Bring the pork back to the state, in other words.

    So I fail to see how states that don’t expand MediCaid won’t be penalized, as the states that do expand MediCaid will undoubtedly see their costs rise. And the states that don’t will see their own tax base shrink.

    Essentially, it’s more cost shifting. Which I see as a penalty. Instead of paying a state tax to cover an expanded MediCaid system in their own state, these taxpayers will see their federal taxes go up to pay for expanded MediCaid systems in other states.

    Steve57 (c441a6)

  305. He means the idea that it matters is laughable.
    Comment by Leviticus — 6/28/2012 @ 12:25 pm

    – True. It’s like when my friend and I went to Hooters the other day, and the chick that served us was a little too old to be working there, and had a Caesarian scar and varicose veins. My friend leans over and says “Jeez, what a skank! What were they thinking, giving her a job here?” And I responded “I’m just here for the wings, dude.”

    Icy (9ccb08)

  306. The right still has less to complain about than the left as far as this court is concerned. Bush v Gore- the will of the people of Florida didn’t matter as much as Scalia’s unpaid debt to his appointer.

    tye (f51325)

  307. Sammy, the real reason that this is not a head tax is that it is linked to income, and therefore is an income tax which is expressly allowed.

    You analysis of capitation vs states and apportionment is flawed, in that the examples you cite are excise taxes on a few, which are never apportioned. A true poll tax, apportioned, would most easily be levied on the states since there would be no math. If you tried to levy it on the citizens directly, you would have to adjust it with regard to the census versus some (*what?!*) other measure of residency per state. I guess you could, as per Gingrich, ask FedEx, but it’s a pretty hard tax to administer directly, even now. In 1787 it would have been even harder.

    Kevin M (bf8ad7)

  308. tye, you’ve nothing but slander to offer. It got old a long time ago.

    SPQR (26be8b)

  309. “The cost of health care is high because … we are subsidizing those freeloaders” No, healthcare is expensive because almost nobody wants to die or live in pain. When you are gravely ill or injured, you will pay _anything_ to get well. That’s the immutable human condition. The only way to lower healthcare costs is by enslaving doctors and forcing them to work under wage controls, but the unintended consequences of that approach would destroy the quality of the service.

    “Also, people will engage in preventative medicine more…” But that does not lower lifetime healthcare costs; it actually increases them! The longer you live, the more healthcare costs you incur. Life is a terminal condition; everyone must die; all the preventive medicine in the world won’t keep you from trying to buy your way out of death in the end.

    If you think that politicians can concoct a scheme to lower healthcare costs, you must believe that politicians can reverse the rotation of the earth.

    gp (5a38d9)

  310. Coming into a thread tye always, always meets or exceeds expectations.

    elissa (bd6062)

  311. Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty.

    elissa, just to illustrate my point, the way I read this is that now the blue states are free to be profligate spenders like Greece while all the red Germanies have to pick up the tab.

    With fewer options to opt out of EuroCaidZone than Germany.

    Steve57 (c441a6)

  312. gp, the real refutation of the “freeloaders” claim is the simple fact that Obamacare actually makes the older, insured population the “freeloaders”.

    That is because the mandate requires younger people who have fewer health costs to buy insurance that they do not feel they need, at a greater cost than they consume, to subsidize the older, wealthier.

    SPQR (26be8b)

  313. Mitt Romney won the election today. The rest will be mere theater.

    Hal Jordan (9c34c6)

  314. SPQR, I think the real refutation is while the Obamagandists keep running around clucking about “individual responsibility,” what’s written into the law is a “shared responsibility” payment.

    So the law explicitly states this has nothing to do with paying for your own health care, but others.

    Steve57 (c441a6)

  315. More dissent:

    If all inactivity affecting commerce is commerce, commerce is everything.

    But isn’t that socialism?

    Amphipolis (d3e04f)

  316. elissa, I suggest you go to this post over at Legal Insurrection, Supreme judicial activism in restraint”s clothing as Professor Jacobsen may explain one of my observations about why I see this ruling as an abomination better than I. A quote:

    What is most disturbing is the judicial activism which took the Chief Justice from the Commerce Clause to the taxing power in order to save the legislation.

    It required, as Justice Scalia noted in the dissent, a rewriting of the legislation, and the enactment of a tax via judicial fiat where the legislature knowingly and deliberately had refused to do so.

    I believe Costa is engaging in wishful thinking. I’ve been saying I see distinctions without differences, and now I feel I’m in good company.

    Steve57 (c441a6)

  317. Another consequence of this ruling is that Obamacare will continue to be a large drag on economic recovery.

    I could have seen an economic uptick in hiring if the ruling had been to strike down the law – as I have personal knowledge of small business and medium size business owners that are reluctant to hire workers that they can otherwise justify, in fear of the costs.

    But its pretty obvious that the Obama administration is unconcerned with the economic impacts of its poor policy decisions, and indeed has given up on actually trying to improve the US economy.

    SPQR (26be8b)

  318. Pretty hilarious that – given how many stupid trolls like tye keep working in incoherent “Faux News” themes – CNN reported that the SCt had ruled Obamacare unconstitutional.

    SPQR (26be8b)

  319. Steve57 thanks for your replies–
    Your interpretation @12:42 is not the way I read it, nor my understanding of it. But I do not profess to be an expert on Medicaid or the ACA Medicaid expansion so I’ll wait to see how, and which, other pundits or pols whom I like weigh in on the Medicaid part of the SC ruling. Over a period of years I have come to respect Jay Cost’s knowledge of the political process, and I therefore tend to give his opinions and insights considerable weight. I’ve found that I agree with him more times than not and that he nails it more times than not–but, not always.

    elissa (bd6062)

  320. Well, since everyone has to pay for my (senior) healthcare now, I guess I’ll just have to get the MV Augusta sport-bike that I’ve been drooling over for years.
    If we’re all going to be taxed to death, might as well enjoy the ride too.

    AD-RtR/OS! (b8ab92)

  321. elissa, now I get to ask you; did you read the post I linked to at Legal Insurrection?

    I would have quoted more, but I believe I would have been violating fair use. In any case, the post isn’t lengthy.

    Steve57 (c441a6)

  322. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.
    – All of a sudden precise language no longer needs to be precise. All of a sudden the way in which Congress crafts a bill has no bearing on what it means. All of a sudden the Supreme Court of the United States has the temerity to tell the American people that a tax IS a “financial penalty”?
    Welcome to the penal colony, fellow penitents.

    Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
    – And this would be true IF the Constitution actually permitted such a tax. The majority opinion that it does is simply wrong.

    Icy (9ccb08)

  323. Comment by SPQR — 6/28/2012 @ 12:58 pm

    Insty (yesterday or Tuesday) asked if CNN would have any viewers at all if it wasn’t for every TV screen in every airport lounge in the country being tuned to their channel.

    AD-RtR/OS! (b8ab92)

  324. 320. Well, since everyone has to pay for my (senior) healthcare now, I guess I’ll just have to get the MV Augusta sport-bike that I’ve been drooling over for years.

    Comment by AD-RtR/OS! — 6/28/2012 @ 1:06 pm

    Might as well; it’d be a much more fun way to go than the ObamaTaxHike death panels (which aren’t death panels in the same way the penalty wasn’t a tax) have planned for you.

    Steve57 (c441a6)

  325. AD, it of course didn’t help that they relied on Jeffrey Toobin, who is a blithering idiot of long standing.

    SPQR (26be8b)

  326. My plan, AD-RtR/OS!, is to start burying what cash I can in the backyard (so when the feds start raiding retirements accounts in exchange for Social Security-grade IOUs they won’t find it), then spending my golden years frolicking with 18-20 girls until I die in the rack of a heart attack.

    The thought of dying of untreated road rash in an ObamaSpital doesn’t appeal to me.

    Just make sure you don’t where a helmet, you old geezer, and you’ll die more painlessly of the untreated head injury.

    Steve57 (c441a6)

  327. “But its not laughable, Leviticus, as presidential campaigns can be made or broken on things like claims not to have raised taxes on the middle class, and reading lips.”

    - SPQR

    They sure can. The way Obama framed this way hyper-political; different framing would have had different political effects.

    But the Supreme Court is not a political branch. It should be paying absolutely zero attention to political implications. The Court’s role is to look at the text in front of it and decide whether that text is constitutional or unconstitutional.

    I do not buy the argument that Obama’s characterizations (or the characterizations of Congress, or anyone else) should have any bearing whatsoever on the Court’s reading of the legislation. What if Obama had said that the individual mandate was a tax, but not (say) a penalty or a fine? Should that affect the Court’s decision about what the individual mandate actually is? If it doesn’t matter what Obama says something is, why should it matter what Obama says something isn’t? It’s not his role. The Court looks at the text, and decides whether or not the provisions of the text are in keeping with the Constitution. The Court looked at the text and decided that if it walks like a tax and talks like a tax, it’s a tax. That makes sense to me; and I think that it’s perfectly within the Court’s institutional purview to do what it did.

    Of course, anyone who believes that intent should play the deciding role in assessing meaning is probably going apeshit over what the Court did. Congress meant what they meant, dammit! The Court was not interpreting!

    Leviticus (e923df)

  328. I think that some of the conservative energy had been banked down by the expectation of PPACA being overturned.

    This will bank it back up, reinforce the unhappiness of the large majority of Americans who hate Obamacare, and put paid to the one-term Obama – the worst President in my lifetime.

    Democrats need to reread Roman and Greek history to relearn the meaning of Pyrrhic victory.

    SPQR (26be8b)

  329. Roberts has just changed the U.S.A. One man should not have this much power.
    I’m still sickofrinos.

    mg (44de53)

  330. You can’t damage what isn’t there.
    And, nothing says “additional traction” like a bit of fluff riding behind you.

    AD-RtR/OS! (b8ab92)

  331. mg, Roberts has said that if you don’t like what comes out of Washington, its your job to go and campaign for candidates who will act responsibly.

    The first step in November is getting Obama out of office.

    SPQR (26be8b)

  332. 1) RINOs must go. By any means necessary and at every turn possible.

    2) Never trust Ivy League Republicans, they are not Conservatives.

    Ed (d4f764)

  333. Exactly, SPQR. It’s up to us to elect conservatives and keep electing them for years to come.

    I don’t like this outcome but the silver lining is that, after this opinion, the only way liberals can impose their agenda is through taxation. That’s been a hard sell in the past and I hope it continues.

    DRJ (a83b8b)

  334. 328. Roberts has just changed the U.S.A. One man should not have this much power.
    I’m still sickofrinos.

    Comment by mg — 6/28/2012 @ 1:21 pm

    What makes you think he’s a RINO? Republicans, as the lefties never get tired of pointing out, embraced the idea of a mandate back in the early ’90s. The Republican candidate for President, as the lefties will never get tired of pointing out, imposed just such a mandate on his own state when he was governor. And now a Republican appointee to the SCOTUS rubber stamped the mandate although he had to rewrite the law to do it.

    Maybe it’s us conservatives who are Republicans In Name Only, while these statists are Republican in name but to the bone.

    Steve57 (c441a6)

  335. There are decent arguments that it was “political” (in some sense) for the Court to look at a legislative text which was facially ambiguous enough to support two different readings and disregard a tiebreaker (Congressional intent) which clearly pointed to the answer it didn’t pick. But it’s also perfectly understandable, given that the court had just ruled one of those readings to be unconstitutional, that it turned to assess the other. To do otherwise would seem unduly formalistic. The Court “follows a functional approach, ‘disregarding the designation of the exaction, and viewing its substance and application.’ United States v. Constantine, 296 U. S. 287, 294. Pp. 33-35.” We ditched code pleading for a reason: Substance over technicality; Can Congress do this, or not?

    Leviticus (e923df)

  336. Comment by Larry Reilly — 6/28/2012 @ 12:05 pm
    blah….blah….blah……
    – Congratulations, that’s the most coherent thing you have ever written here.

    Reasonable minds can disagree.
    – Yes. They usually disagree with unreasonable minds.

    This case has legitimacy.
    – Because Mawry says so?

    But on this occasion I’d like to reprise the words uttered by Scalia in speeches some time after the illegitimate, outright theft of the 2000 presidential election by the Supreme Court’s Republican wing: “Get over it.”
    – Are you STILL going on about this? Listen up, toolbox, Gore LEGITIMATELY lost that election, period. That the SCOTUS ended the recount ultimately means NOTHING, because Bush got more votes; he WON the disputed districts. End of story.

    and they’ll say nay…..on all those things originally pimped by Republicans and their Heritage think-tank, such as keeping kids on policies until age 26 and no refusals for pre-existing conditions, etc.
    – Is the Heritage Foundation the same as the Republican Party? Have a majority of Republicans in Congress EVER voted for such a thing? Oh, and guess what? Any Republican that thinks it’s a good idea to allow kids to remain on their parent’s policy until they’re 26 is WRONG.

    Icy (9ccb08)

  337. DRJ, given that Obama has already abandoned campaigning on his “success” passing Obamacare, I think this isn’t the good news at the White House that they hoped for.

    They can’t campaign against the Supreme Court. They have to defend Obamacare when its already hugely unpopular.

    Pyrrhus would be proud.

    SPQR (26be8b)

  338. #309 = 100% Truth.

    This will destroy the health care system in the USA. A system that since Medicare and Medicaid started to dominate has seen more and more spending, more and more bureaucracy, lower pay for MDs, less MDs, less innovation and a worsening of the level of care poor and rich receive.

    Race to the bottom.

    Ed (d4f764)

  339. The election is fixed. Today proves it.
    I see the borders being unstoppable now. Sort of like Korea in 1949. Guns and land are next.

    mg (44de53)

  340. Leviticus, the difference is that the Solicitor General admitted in oral argument that as a tax, it was unconstitutional as a direct tax.

    Its one thing to construe ambiguous text into constitutionality, its another to override the proponents admission of unconstitutionality.

    SPQR (26be8b)

  341. Steve57–Of course I read the Professor at LI. He is one of my multiple times a day go-to blogs. To be abundantly clear if I have not already been so throughout this thread, on its face I am not happy with today’s ruling. But it is what it is. I am trying, therefore, to look past the ugly immediate specifics of ACA to understand and incorporate into my thinking whatever larger picture impacts today’s ruling may have both now and for the future–including issues that may have nada to do with healthcare. I hope that knowledge can serve to inform on where we need to go from here and how I as an individual can best help.

    The separate issue/questions WRT medicaid expansion which I raised, though, are specific to ACA and to this ruling which is why I’d like to better understand them.

    elissa (bd6062)

  342. Someone should look through financial records of Roberts and his family.

    Ed (d4f764)

  343. What was ambiguous about it? Where was it referred to as a tax, as opposed to fines or penalties?

    JD (318f81)

  344. Since this was a 5-4 decision, obviously the ruling in favor of Obamacare was illegitimate.

    SPQR (26be8b)

  345. 333- Being on the team of communist judges works for me.

    mg (44de53)

  346. Fricken Kagan should not been allowed to vote. jhc.

    mg (44de53)

  347. The people who claim the ACA will cut health costs are, as Megan McArdle quoted the other day, like FDR’s “massively misguided policy advisers who thought they could make summer come if they only ate enough ice cream.”

    Kevin M (bf8ad7)

  348. The right still has less to complain about than the left as far as this court is concerned. Bush v Gore- the will of the people of Florida didn’t matter as much as Scalia’s unpaid debt to his appointer.
    Comment by tye — 6/28/2012 @ 12:38 pm

    – Bush v Gore was decided by “this court” (the Roberts court) was it? *sigh* Call up Five-Cent Mawry and go cry in your beers together.

    In the first full study of Florida’s ballots since the election ended, The Miami Herald and USA Today reported George W. Bush would have widened his 537-vote victory to a 1,665-vote margin if the recount ordered by the Florida Supreme Court would have been allowed to continue

    Icy (9ccb08)

  349. Icy, I pointed that out to tye a few days ago. tye knows that was the result of the study and still lies about Bush v. Gore.

    Nothing more needs to be said about tye’s lack of integrity.

    SPQR (26be8b)

  350. As elissa says, it is what it is. But it’s fun to see our resident (and visiting) liberals enjoy today. I hope conservatives get to return the sentiment on November 6th.

    DRJ (a83b8b)

  351. And this would be true IF the Constitution actually permitted such a tax. The majority opinion that it does is simply wrong.

    Well, you could look at it like this: there is a new kind of income-based tax. It’s potentially several thousand dollars if you make a middle-class income. Everyone has to pay it unless 1) health insurance is expensive in your area or 2) you buy approved health insurance (perhaps bearing the Blue Eagle). In those events, we grant you a tax credit to match.

    They could have, to much the same effect, have conditioned the personal exemption to having health insurance, and that would clearly be legal.

    So, all the Court is saying is that the power to tax is indeed the power to destroy and you just gotta accept that Congress has that power, for good or ill.

    Trying to get my mind around this. Don’t like the result but it is not INSANE. Just not what I would have hoped for. I do like the clear lines in the sand on the Commerce and Necessary&Proper Clauses, which the Left had to swallow to get this.

    Kevin M (bf8ad7)

  352. Blue Eagle. Dicussed here

    Kevin M (bf8ad7)

  353. ==Someone should look through financial records of Roberts and his family.==

    Does this kind of whining and unwarranted accusation help at all? Does it change anything about today’s ruling? Why don’t we all just have a great big slug of something alcoholic,or chocolate for non-drinkers, (or both booze and chocolate) and get to work electing people to repeal this sucky and unworkable “law” that Nancy and Barack and Harry forced on us? K?

    elissa (bd6062)

  354. DRJ, how could our liberal trolls be enjoying a clearly illegitimate 5 to 4 decision?

    SPQR (26be8b)

  355. Comment by SPQR — 6/28/2012 @ 1:35 pm

    I just wonder what push-back Roberts got from the “conservative” Justices where they wouldn’t sign-on to his limitations on the Commerce Clause?
    Or what he couldn’t agree with in Scalia’s opinion?
    It could have been 6-3!

    AD-RtR/OS! (b8ab92)

  356. Democratic National Committee Executive Director Patrick Gaspard tweeted “It’s constitutional. Bitches.”

    And the post-racial new civility rolls on . . .

    Icy (9ccb08)

  357. I’m sure Robert’s stroke of genius gave him the satisfaction of granting each side what they mostly wanted and he is sleeping soundly these steamy nights. It is a clean solution as these things go.

    OTOH, the original Solomon secured the baby’s life.

    gary gulrud (dd7d4e)

  358. elissa, I referred to Prof. Jacobsen’s post only to bolster my criticism of the articles you excerpted.

    It wasn’t meant as a criticism of you.

    I simply fail to see any conservative victory in the fact that while Roberts may have written a decision declaring that Congress doesn’t have the Constitutional authority to mandate commercial activity under the Commerce Clause, if they do write such a bill using such language exclusively then the SCOTUS has the obligation to pretend they actually used some other language referring to an enumerated power that would have made the same unconstitutional-as-written policy objective Constitutional.

    Both the Slate article and Jay Cost’s contend that SCOTUS handed conservatives a huge victory in today’s ruling. But as I see it, what Roberts gave with one hand, he took away and more with the other.

    Steve57 (c441a6)

  359. Aww. Icy you’re just butthurt.

    tye (ed9641)

  360. 332. I don’t like this outcome but the silver lining is that, after this opinion, the only way liberals can impose their agenda is through taxation. That’s been a hard sell in the past and I hope it continues.

    Comment by DRJ — 6/28/2012 @ 1:26 pm

    I wish that were true, DRJ. But the way I read the Roberts ruling as well as the dissent, no they don’t.

    They don’t need to impose their mandate via taxation. The SCOTUS has the obligation to do it for them if that’s the only way to interpret whatever they pass using whatever language they wish Constitutional.

    So now they’ve been relieved of the need to make that sales pitch. Nine justices will do the hard lifting for them. If the leftist agenda would have been Constitutional had Congress attempted to impose it through taxation, we now have a Supreme Court precedent saying it will be found Constitutional regardless.

    Steve57 (c441a6)

  361. AD,

    It still would have been 5-4 if Roberts had joined the conservatives.

    I could feel some respect for this decision if the liberal justices had agreed on Roberts’ analysis of the Commerce Clause and Necessary and Proper Clause, but they didn’t. I suspect Roberts especially wanted to use this decision to limit the ever-expanding Commerce Clause but since the liberal members of the Court didn’t join him now, I doubt they will when this issue is presented in future cases. (It’s probably just dicta anyway.) Thus, I don’t see how this changes anything in the Commerce Clause area. To put it in the metaphor Roberts understands, liberals benefited from an unforced error but that doesn’t mean they will give away runs in future games.

    Basically, it seems to me that all Roberts accomplished was to write a decision I assume he believes in that also burnishes his image as a non-partisan Chief Justice. But at what cost to the Court, let alone the country? It may pay off in better relations with the liberals, or it may not. But I seriously doubt there will be much good will from the conservatives or Kennedy. (Speaking of which, Kennedy showed fortitude in this decision. It would have been easy for him to switch sides after the outcome was obvious, but he didn’t.)

    DRJ (a83b8b)

  362. All he had to — ALL Roberts had to do — was declare the penalty to be unconstitutional BECAUSE it is not a tax. Then it would be up to Congress to amend the law to state that it IS a tax.

    But nooooooooooo! Instead, Roberts declares that the penalty is a tax.

    CJ Roberts, how dare you? How . . . DARE you!!!

    Ya know what I’m gonna do? I’m gonna start ascribing alternate meanings to some of our local laws, starting with the public indecency law.
    That’s right. I’m gonna encourage the hot chicks in my neighborhood to jog naked . . . ’cause some of them are damn decent, and my interpretation of the law is that something which is decent cannot possibly be indecent, so — there ya go.

    Icy (9ccb08)

  363. Icy, I like the cut of your jib.

    Steve57 (c441a6)

  364. It may pay off in better relations with the liberals, or it may not.

    DRJ, I think “Maverick’s” presidential campaign tells us all we need to know on this score.

    The liberals love him when he’s criticizing his own side, calling conservative voters racists for not supporting amnesty, and tripping over himself trying to reach across the aisle.

    He’s just the second coming of Chimpy McHitlurburton if he’s trying to get the Rethuglican nomination. Remember John McSame?

    Then, when he stops doing the Rethuglican thing and reverts to form the liberals luv them some Maverick. Now everyone on the left, including Obama, wishes that mean nasty Mittens Romney could be more like old lovable Maverick who lost so gracefully in 2008.

    Ask Joe Lieberman. The minute you stop towing the lefty line they kick you out the door.

    Steve57 (c441a6)

  365. Thank you, Steve57

    Icy (9ccb08)

  366. The right still has less to complain about than the left as far as this court is concerned. Bush v Gore- the will of the people of Florida didn’t matter as much as Scalia’s unpaid debt to his appointer.
    Comment by tye — 6/28/2012 @ 12:38 pm

    – Bush v Gore was decided by “this court” (the Roberts court) was it? *sigh* Call up Five-Cent Mawry and go cry in your beers together.

    In the first full study of Florida’s ballots since the election ended, The Miami Herald and USA Today reported George W. Bush would have widened his 537-vote victory to a 1,665-vote margin if the recount ordered by the Florida Supreme Court would have been allowed to continue

    Comment by Icy — 6/28/2012 @ 1:42 pm

    Plus the President of the manufacturer of the punch card machines testified they could not make those little indentations that they were counting unless more than one card was put in the machine at a time. He didn’t say there was fraud but that was the clear implication. I think the Democrats trying to count them understood what they were the result of. Regardless of whether they were from fraud, they shouldn’t have been counting them.

    It also has to be pointed out once again that the procedure ordered by the FL supreme court was ruled unconstitutional by a 7-2 vote with Breyer one of the 7. The 5-4 vote was on whether to send it back to the FL court or end the farce.

    Gerald A (cc0aaa)

  367. Again, Gerald A, tye has been told that, with supporting references, and yet chooses to continue to lie about that decision.

    tye’s dishonest comments have been well documented already.

    SPQR (26be8b)

  368. Of course the question about how harsh to be on tye for his answers reminds us that the President told these whoppers today:

    Today, the Supreme Court also upheld the principle that people who can afford health insurance should take the responsibility to buy health insurance.

    The Supreme Court did no such thing at all. Utter fabrication.

    Earlier today, the Supreme Court upheld the constitutionality of the Affordable Care Act – the name of the health care reform we passed two years ago. In doing so, they’ve reaffirmed a fundamental principle that here in America – in the wealthiest nation on Earth – no illness or accident should lead to any family’s financial ruin.

    Another utter lie. The court said no such thing.

    Obama is a more brazen liar than Bill Clinton to my standards.

    SPQR (26be8b)

  369. If Gore wins conservatives would be in a better place now.
    Gore never would have reached as far as sotero. Gore losing rallied the dems and the republicans have been sucking hind tit ever since.

    mg (44de53)

  370. tye’s dishonest comments have been well documented already.

    The sad fact, SPQR, is if he’s ever President or Speaker of the House the SCOTUS will rewrite those comments so, had he used the correct language, they would have been honest.

    Steve57 (c441a6)

  371. Great paintings! That is the type of info that should be shared across the net. Shame on the search engines for now not positioning this put up upper! Come on over and consult with my site . Thanks =)

    las tecnologias del munfo (7f2e0a)

  372. Comment by Kevin M — 6/28/2012 @ 12:40 pm

    Sammy, the real reason that this is not a head tax is that it is linked to income, and therefore is an income tax which is expressly allowed.

    I know – but the thing is Roberts didn’t say that. But this works even better when construed as an income tax. I didn’t know in fact there was this 8% of income cap in the law.

    So we can construe this like this:

    Congress imposed a variable tax (it changes in various ways ad is supposed to get higher over time) on income of 8%, except that:

    1) You get a 100% credit (or are exempt which is the same thing) if

    A) You are enrolled in a government approved health insurance plan

    OR

    B) The cost of enrollment to you will be more than 8% of your income

    ALSO

    1) The tax cannot be higher than the cost of insurance

    2) And is in fact, when the law starts, much lower.

    Now we get Dec 2019 tax planning:

    Case 1: You didn’t have health insurance this year. However your income is just above 12.5 times the cost of your missing health insurance. Advice: Don’t take any job where your first paycheck will be issued December 31 or earlier.

    Case 2: You owe money from previous years. Advice: Raise your withholding so that you owe money to the Treasury, rather than getting a refund Do not put money into an IRA.

    Case 3: Your income is just above the threshold, over which you will owe $2,700 for not having health insurance. Advice: Put $300 into an IRA to lower your income. (not sure wht the real law will be of course

    News item: Senator Schumer, noting that 20% of the people owe money to the federal government, proposes a heating oil rebate that will be exempt from seizure

    Sammy Finkelman (976d9e)

  373. Kevin M:

    Your analysis of capitation vs states and apportionment is flawed, in that the examples you cite are excise taxes on a few, which are never apportioned. A true poll tax, apportioned, would most easily be levied on the states since there would be no math. If you tried to levy it on the citizens directly, you would have to adjust it with regard to the census versus some (*what?!*) other measure of residency per state. I guess you could, as per Gingrich, ask FedEx, but it’s a pretty hard tax to administer directly, even now. In 1787 it would have been even harder.

    You just require everyone to pay the tax. It’s no more hard to enforce than draft registration, which was done in 1917, and I think really in the Civil War. And I think maybe during the Revolutionary War there were mass call-ups in certain locations – I don’t know enough.

    Sammy Finkelman (976d9e)

  374. A capitation tax is nothing more than drafting people’s money.

    Sammy Finkelman (976d9e)

  375. 369 – notice how comment spam makes more sense than tye.

    SPQR (26be8b)

  376. In separate comments regarding the decision, both President Obama and Senator Dick Durbin used MSNBC’s official slogan “move forward”. Coincidental, I’m sure.

    Icy (9ccb08)

  377. “it’s fun to see our resident (and visiting) liberals enjoy today. I hope conservatives get to return the sentiment on November 6th.”

    - DRJ

    For my part, I’m not really all that thrilled by this. I’m surprised and interested by it, but not really happy about it.

    I’m working at a Center on Law and Poverty this summer; we work with a lot of people within 50-200% of the poverty line. A bunch of our people are going to get screwed by this – they won’t have access to the expanded Medicaid coverage, but they’ll still get fined for not purchasing insurance (which they can’t afford). More than anything, this is a subsidy of the private insurance industry.

    At the same time, I strongly disagree with the idea that the Court should pay one lick of attention to the incessant campaigns of misinformation, deceptive framing, and outright untruth that flow from and through our Congress and media. The idea that the court should put any sway at all at the labels which professional manipulators attach to a piece of legislation strikes me as a very bad idea.

    If Obama or any other Democrat or Republican politician told me the sky was blue, I’d get a second opinion. They’d have called the mandate anything to get some support for it. They’d have called it a discretionary toothless option. Would’t have changed what it was, but they’d have done it anyway. So why do their words matter?

    The less contact the Court has with the political world, the less attention they pay to it, the better. Lock em in their citadel, feed them the finest fare, and encourage them to get bed on time. No windows. The outside world is ugly and unprincipled.

    Leviticus (102f62)

  378. So, if the government has an unlimited ability to tax individuals, then how are we not slaves in our own country?

    Can “debtors’” prisons be far behind?

    Explain please, I’m missing the “brilliance” of Roberts’ coup de tate. Maybe the geniuses here can shed some light.

    PashaG (5d9ace)

  379. “Leviticus–You do not understand yet, do you? Big insurance and big pharma lobbied, and bought and paid for the passage of this very special version of Obamacare.”

    - elissa

    I totally get that.

    “All he had to — ALL Roberts had to do — was declare the penalty to be unconstitutional BECAUSE it is not a tax. Then it would be up to Congress to amend the law to state that it IS a tax.”

    - Icy

    I agree with that, more or less. I said the same thing at #204.

    Leviticus (102f62)

  380. A terrible day.

    This is where the road to serfdom leads.

    Patricia (e1d89d)

  381. Explain please, I’m missing the “brilliance” of Roberts’ coup de tate. Maybe the geniuses here can shed some light.
    Comment by PashaG — 6/28/2012 @ 3:12 pm

    – There is no brilliance to it. This decision says the federal government can tax you for things you buy (cigs, booze, gas) AND for things you don’t buy (health insurance).

    Icy (9ccb08)

  382. For tax professionals, govt and medical IT contractors, insurance and medical bureaucrats and lawyers, looks like full employment ahead. Take the complexity of the system we have now, and multiply it by 5. I predict the price of the 2012 TurboTax package will be up 25% over the 2011 package price.

    SCOTUS didn’t bother to read the PPACA, but we might as well read the damn bill now, since we’ve got to live with it. There’s probably good money to be made implementing and enforcing it: http://democrats.senate.gov/pdfs/reform/patient-protection-affordable-care-act-as-passed.pdf

    Just think: if Jack Ryan hadn’t tried to take Jeri the spacewoman to that sex club, BHO would not have become Senator in 2004, then POTUS, and there would be no PPACA today.

    gp (0c542c)

  383. Icy, I think the brilliance (if it can be characterized as such) is that Congress doesn’t have to deal with the negative political consequences of actually passing such a tax on things you buy and don’t buy while calling it a tax.

    They can call it something else. They can leave all such language out of it. They can call it a cat named Julius. And they can write a law saying you are required to buy a Chevy Volt. If you don’t, you have to spend a somewhat lesser amount to feed the national cat, Julius, for that year.

    Because, all patriotic Americans are eager and willing to put something in the federal kitty (he, he).

    And if it goes to the SCOTUS, Roberts will say this requirement would have been legal if it’s a tax, so abra cadabra, Julius is a tax. Not a cat.

    Steve57 (c441a6)

  384. Comment by Leviticus — 6/28/2012 @ 3:11 pm

    I’m working at a Center on Law and Poverty this summer; we work with a lot of people within 50-200% of the poverty line.

    Those up to 100% get a subsidy. Expanded Medicaid is a voluntary – equal to a second Medicaid program, but it may happen anyway, at least temporarily. States can drop out later. The first two years of expanded Medicaid are 100% paid for by the federal government.

    Expanded MediCaid goes up to 130% of poverty. Of course if anyone on Medicaid gets any money they might have to pay it back. Of course nobody does any real audits of somebody’s income, savings etc..of course people who help eople prepare applications for Medicaid don’t care. James O’Keefe could have a field day with that.

    A bunch of our people are going to get screwed by this – they won’t have access to the expanded Medicaid coverage, but they’ll still get fined for not purchasing insurance

    The threshold for that is insurance costing more than 8% of income. At approximately what percent of poverty would that kick in? Do you know?

    The will have to publish a table giving the insurance cost figure for each locality and family composition.

    If your total income for the year is less than 12 1/2 that figure, you are exempt from the tax.

    By the way, for these purposes, does income include Social Security,? Food stamps? Welfare? Housing subsidies? Or only non-transfer payments?

    Of course nobody will actually have to pay the penalty – they just might not get tax refunds. But that is still important because they could lose the Earned Income Tax Credit, or a good portion of it. Not so much the first year.

    I think yes maybe some people might be subject to the penalty but not eligible for any form of insurance subsidy.

    Some people close to the limit might be well advised not to report any income, or any extra income..

    (which they can’t afford). More than anything, this is a subsidy of the private insurance industry.

    It’s an extremnely regressive tax, more regressive than Social Security.

    At the same time, I strongly disagree with the idea that the Court should pay one lick of attention to the incessant campaigns of misinformation, deceptive framing, and outright untruth that flow from and through our Congress and media. The idea that the court should put any sway at all at the labels which professional manipulators attach to a piece of legislation strikes me as a very bad idea.

    It’s better to go with whateve rthe actual powers of that body are.

    Sammy Finkelman (d22d64)

  385. SCOTUS didn’t bother to read the PPACA, but we might as well read the damn bill now, since we’ve got to live with it.

    What’s the point, gp? According to “Roberts’ Law” it doesn’t matter what the PPACA actually says.

    It’s just a giant 2700 page Rorschach test and they get the final say as to whether or not the inkblots on those pages are really a butterfly or an zygote.

    Steve57 (c441a6)

  386. Comment by gp — 6/28/2012 @ 3:48 pm

    I predict the price of the 2012 TurboTax package will be up 25% over the 2011 package price.

    Not 2012. This doesn’t kick in at all until 2014.

    Sammy Finkelman (d22d64)

  387. It will make lots of sense for many businesses to drop their health insurance , particularly during the first years.

    As soon as sob stories start to appear, there will be pressure on Congress to act. But that can’t happen till 2014, maybe 2016. Not that Congress fuixes things quickly.

    Sammy Finkelman (d22d64)

  388. Bring roberts up for disbarment.

    mg (44de53)

  389. “All he had to — ALL Roberts had to do — was declare the penalty to be unconstitutional BECAUSE it is not a tax. Then it would be up to Congress to amend the law to state that it IS a tax.”
    - Icy

    I agree with that, more or less. I said the same thing at #204.
    Comment by Leviticus — 6/28/2012 @ 3:19 pm

    – If only Roberts HAD done it that way. Instead, we are now one Executive Order (or retro signing statement) away from full implementation.

    Now, AT LAST, the lower middle-class can be made to pay their fair share!

    BTW, I like how some are trying to soften the blow with language like “the fine/penalty/tax will be guaranteed to be less than the cost of a policy.” Well, guess what — the cost of the “tax” will STILL be burdensome. And of course, in addition to making it HARDER for the person that pays the fine to afford health insurance in the future, s/he receives no practical return (no product or service) for the tax paid.

    So yeah, it’s been a great day all around — for all of us.

    Icy (9ccb08)

  390. In my minimal knowledge, it seems Roberts has an argument for upholding it, but that he essentially argued the case himself, rather than listening to the arguments presented. Do judges do that, or is it very unusual?

    Eastman on Hewitt said that it would have been more expected for Roberts to say it is a no-go on commerce clause, but if Congress/Obama wants to make it an argument under power to tax he thinks they could win it.

    But others have said things about it being a direct tax and shouldn’t be upheld…beyond me.

    Others are saying that this is a win for Obama only on the surface, that a limit was put on the commerce clause, and political ramifications for Obama will be made nonetheless.

    they do tell me things, i just don’t know who to believe.

    MD in Philly (3d3f72)

  391. I just got a short questionaire from my congressperson about today’s ACA ruling. That didn’t take long. Surprisingly he did nor ask for money for his re-election but that will probably come tomorrow (and I will probably send him some). Somehow that seems more productive than trying to disbar CJ Roberts.

    elissa (bd6062)

  392. Roberts just gave obama the right to tax the air we breathe.

    mg (44de53)

  393. elissa- I have trouble giving people money who use it like toilet paper.

    mg (44de53)

  394. 241. 264.

    Somebody: Obamacare is unconsitutional for not being passed by the House first.

    Comment by Kevin M — 6/28/2012 @ 11:30 am

    *sigh*

    This requirement is pretty much a dead letter.

    What they do, routinely and in this case, is take some House bill that they don’t want to consider, gut it and replace it with their text. This way it “originated” in the House, and this seems to be enough to pass muster.

    They did it in this case, too? If so they must do it routinely, and never fail to do it, because nobody actually expected it to pass this way, and maybe it didn’t even have any other taxes n it, did it? And this is so routine that nobody reporting on it even takes note of this detail.

    Not everything the Founders put into the Constitution was well thought out. Just most of it.

    About what year did they figure a way around this?

    Sammy Finkelman (d22d64)

  395. I like my congressperson for the most part, mg. He’s a businessman, not a career politician and I think he does a pretty good job representing a rather complex district. I will happily donate to his campaign to try to keep him in congress.

    elissa (bd6062)

  396. About what year did they figure a way around this?

    1792!

    AD-RtR/OS! (b8ab92)

  397. Odds on Teh Lightworker publicly saying “Hey, it wasn’t me that said it’s a tax; it was the Republican Chief Justice that said it”?

    Hopefully he will say it during the debate (singular) so that Romney can hit back with “But I thought you promised not to raise taxes on anyone making less than $250,000 a year, Mr. President!”

    Icy (9ccb08)

  398. elissa- your fortunate in two ways.

    mg (44de53)

  399. Roberts just gave obama the right to tax the air we breathe.
    Comment by mg — 6/28/2012 @ 4:15 pm

    – Literally. LITERALLY!!!

    If you are an adult American citizen, it does not matter whether or not you work, it does not matter whether or not you buy any of the products subject to federal taxation; AND, it does not matter if you do not receive medical care, or if you do receive care but are self-pay . . . for the mere act of BREATHING AIR (i.e. being alive) you WILL be taxed.

    Icy (9ccb08)

  400. From the Affordable care act:

    IN GENERAL..If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013

    Starts in 2014.

    then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under
    subsection (c).

    ee(2) INCLUSION WITH RETURN..Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.

    ee(3) PAYMENT OF PENALTY..If an individual with respect to whom a penalty is imposed by this section for any month…is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable
    for such penalty, or ee(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual
    shall be jointly liable for such penalty.

    People liable for dependents. Spouses liable like for all items on joint return.

    AMOUNT OF PENALTY..

    (1) IN GENERAL..The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1/12 of the applicable dollar amount for the calendar year.

    Prorated by month. Probably goes by majority of month = 15 days.

    (2) DOLLAR LIMITATION..The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable
    under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without H. R. 3590.127
    regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends.

    I don’t know what that is. No taxpayer can owe for more than 3 people?

    3) APPLICABLE DOLLAR AMOUNT..For purposes of paragraph (1). A) IN GENERAL..Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750.

    You do what with the figure $750? That’s the per person annual penalty or tax?

    B) PHASE IN..The applicable dollar amount is $95 for 2014 and $350 for 2015.

    And it starts only at $95?? $8 a month? Goes up by 3.68 times for 2015 and eventually is 2.14 times even that.

    (C) SPECIAL RULE FOR INDIVIDUALS UNDER AGE 18..If an applicable individual has not attained the age of 18 as of the beginning of a month, the applicable dollar amount with respect to such individual for the month shall be equal to one-half of the applicable dollar amount for the calendar year in which the month occurs.

    Half the rate for months under 18.

    (D) INDEXING OF AMOUNT..In the case of any calendar year beginning after 2016, the applicable dollar amount shall be equal to $750, increased by an amount equal to.

    i) $750, multiplied by
    ii) the cost-of-living adjustment determined
    under section 1(f)(3) for the calendar year, determined by substituting calendar year..

    You get the idea.

    If the amount of any increase under clause (i) is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50.

    Rounded down to next lowest $50 amount.

    (4) TERMS RELATING TO INCOME AND FAMILIES..For purposes of this section.
    ee(A) FAMILY SIZE..The family size involved with
    respect to any taxpayer shall be equal to the number of individuals for whom the taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year.

    (B) HOUSEHOLD INCOME..The term household
    income means, with respect to any taxpayer for any taxable year, an amount equal to the sum of.
    (i) the modified gross income of the taxpayer,
    plus (ii) the aggregate modified gross incomes of all other individuals who were taken into account in determining the taxpayer’s family size under paragraph (1), and (II) were required to file a return of tax imposed by section 1 for the taxable year.

    C) MODIFIED GROSS INCOME..The term emodified
    gross income means gross income. (i) decreased by the amount of any deduction allowable under paragraph (1), (3), (4), or (10) of section
    62(a), (ii) increased by the amount of interest received or accrued during the taxable year which is exempt from tax imposed by this chapter, and
    ee(iii) determined without regard to sections 911, 931, and 933.

    A tax professional may know what that means. But this seems anyway to be only taxable income polus municipal bonds mostly.

    (D) POVERTY LINE..H. R. 3590.128

    i) IN GENERAL..The term poverty line has the meaning given that term in section 2110(c)(5) of the Social Security Act (42 U.S.C. 1397jj(c)(5)).

    This is a figure we kniw already. Three times the cost of food in 1964 adjusted for inflation or something like that.

    (ii) POVERTY LINE USED..In the case of any taxable year ending with or within a calendar year, the poverty line used shall be the most recently published poverty line as of the 1st day of such calendar year.

    They still haver to deal with people who do not file income taxc returns by calendar year.

    APPLICABLE INDIVIDUAL..For purposes of this section.

    (1) IN GENERAL..The term applicable individualf means, with respect to any month, an individual other than an individual described in paragraph (2), (3), or (4).

    ee(2) RELIGIOUS EXEMPTIONS..

    ee(A) RELIGIOUS CONSCIENCE EXEMPTION..Such term
    shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets
    or teachings of such sect or division as described in such section. </b.

    Some religious denominations don't pay Social Security tax because of objections and Congress years ago decided not to fight that.

    ….

    EXEMPTIONS..No penalty shall be imposed under subsection (a) with respect to.

    (1) INDIVIDUALS WHO CANNOT AFFORD COVERAGE..

    H. R. 3590.129 (A) IN GENERAL..Any applicable individual for any month if the applicable individualfs required contribution (determined on an annual basis) for coverage for the month
    exceeds 8 percent of such individualfs household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act. For purposes of applying this subparagraph, the taxpayer’s household
    income shall be increased by any exclusion from gross income for any portion of the required contribution made through a salary reduction arrangement.

    There’s where you have the 8%. You’ve also got to add back …just what exactly?

    (B) REQUIRED CONTRIBUTION..For purposes of this
    paragraph, the term required contribution means.
    (i) in the case of an individual eligible to purchase minimum essential coverage consisting of coverage through an eligible-employer-sponsored plan, the portion of the annual premium which would be paid by the individual (without regard to whether paid through salary reduction or otherwise) for self-only coverage, or
    ee(ii) in the case of an individual eligible only to purchase minimum essential coverage described in subsection (f)(1)(C), the annual premium for the lowest cost bronze plan available in the individual market through the Exchange in the State in the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan through the Exchange), reduced by the amount
    of the credit allowable under section 36B for the taxable year (determined as if the individual was covered by a qualified health plan offered through the Exchange for the entire taxable year).

    That clears that up.

    (C) SPECIAL RULES FOR INDIVIDUALS RELATED TO
    EMPLOYEES..For purposes of subparagraph (B)(i), if an applicable individual is eligible for minimum essential coverage through an employer by reason of a relationship to an employee, the determination shall be made by reference to the affordability of the coverage to the employee.

    If a member of the family could afford it, taxpayer gets no exemption if family member doesn’t add them to coverage. Even if they are not a dependent?

    INDEXING..In the case of plan years beginning
    in any calendar year after 2014, subparagraph (A) shall be applied by substituting for 8 percent the percentage the Secretary of Health and Human Services determines reflects the excess of the rate of premium growth between the preceding calendar year and 2013 over the rate of
    income growth for such period.

    What does that mean? If premiums grow more, what?

    (2) TAXPAYERS WITH INCOME UNDER 100 PERCENT OF POVERTY LINE..Any applicable individual for any month during a calendar year if the individual’s household income for the
    taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act is less than 100 percent of the poverty line for the size of the family involved (determined
    in the same manner as under subsection (b)(4)).

    (3) MEMBERS OF INDIAN TRIBES..Any applicable individual for any month during which the individual is a member of an Indian tribe (as defined in section 45A(c)(6)).

    4) MONTHS DURING SHORT COVERAGE GAPS..

    (A) IN GENERAL..Any month the last day of which
    occurred during a period in which the applicable individual H. R. 3590.130 was not covered by minimum essential coverage for a continuous period of less than 3 months.

    (B) SPECIAL RULES..For purposes of applying this
    paragraph.

    (i) the length of a continuous period shall be determined without regard to the calendar years in which months in such period occur,

    (ii) if a continuous period is greater than the
    period allowed under subparagraph (A), no exception shall be provided under this paragraph for any month in the period, and

    (iii) if there is more than 1 continuous period
    described in subparagraph (A) covering months in a
    calendar year, the exception provided by this paragraph shall only apply to months in the first of such periods.

    The Secretary shall prescribe rules for the collection of the penalty imposed by this section in cases where continuous periods include months in more than 1 taxable year.

    (5) HARDSHIPS..Any applicable individual who for any month is determined by the Secretary of Health and Human Services under section 1311(d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.

    (f) MINIMUM ESSENTIAL COVERAGE..For purposes of this section.

    (1) IN GENERAL..The term minimum essential coverage means any of the following:

    (A) GOVERNMENT SPONSORED PROGRAMS..Coverage
    under.

    (i) the Medicare program under part A of title
    XVIII of the Social Security Act,

    (ii) the Medicaid program under title XIX of the
    Social Security Act,

    (iii) the CHIP program under title XXI of the
    Social Security Act,

    (iv) the TRICARE for Life program,

    (v) the veteranfs health care program under
    chapter 17 of title 38, United States Code, or

    (vi) a health plan under section 2504(e) of title
    22, United States Code (relating to Peace Corps volunteers).

    All these things automatically qualify.

    Sammy Finkelman (d22d64)

  401. Leviticus – you keep stating it was ambiguous in re. tax vs. fee/penalty. Can you point to something where it is referred to as a tax, or structured as a tax? The actual language does not seem to do so.

    JD (318f81)

  402. What they do, routinely and in this case, is take some House bill that they don’t want to consider, gut it and replace it with their text. This way it “originated” in the House, and this seems to be enough to pass muster.

    Comment by Sammy Finkelman — 6/28/2012 @ 4:18 pm

    Understood, Sammy. But the bill was unrelated. If they just took “some House bill,” then cut and pasted their own text into it, how in Hell’s creation can anyone claim it was a revenue raising bill that originated in the House.

    Article I, Section 7:

    All Bills for raising Revenue shall originate in the House of Representatives

    If the House sends the Senate some frivolous bill that has absolutely nothing to do with revenues, perhaps declaring it legal that the “bit of fluff” on the back of AD’s sportbike can ride topless and in a thong as long as she wears knee-high biker boots, and the Senate guts it and turns it into a tax increase, how can they just declare it a House-originated revenue bill?

    I’m not saying the SCOTUS couldn’t do it. After today I’m 100% sure they can. What I’m saying is I want them to have to do it. After today’s ruling, I want Roberts to be forced at every opportunity to declare the Constitution a dead letter. It seems to fit his definition of “judicial modesty,” in that if Congress does something unconstitutional, he’ll do everything possible and even the impossible to avoid doing anything about it.

    It’s high time we stopped thinking of the SCOTUS as some sort of bulwark of liberty. We had a bloody civil war to fix their errors in this area of jurisprudence back in the mid-1800s, if anyone missed that day in history class. And since then, every time you give them a hard political shove (FDR, anyone?) they fall apart like a cheap suit.

    I don’t house train my dogs by rubbing their noses into their messes. But with the SCOTUS, why not?

    I suppose in this sense, and many others, dogs are far superior in intelligence than a Chief Justice.

    Steve57 (c441a6)

  403. As an aside, Sammy, this is why I’d like to see the House join a suit by the states claiming that this tax that the SCOTUS decided to read into the PPACA is unconstitutional precisely because it didn’t originate in the House.

    That the House voted purely on a regulatory penalty for non-compliance with a mandate per the Congress Clause. Which is all the statutory language can support (hence the dissent’s obvious point that Roberts had to rewrite the law in order to find it Constitutional as opposed to merely reading what it says in the most charitable manner possible). And then I’d like Roberts to have to tell the House that it’s wrong about its Constitutional prerogatives and intent.

    We don’t just have 9th Circus Court anymore; we have a Supreme Circus. And if I’m paying for Circuses, I might as well get all the entertainment I can from them.

    Steve57 (c441a6)

  404. In the news today, 5 black robed idiots murdered the US Constitution and the Republic of the United States. Graveside services will be held on Saturday June 30 at 1:00 PM, at which time Taps will be played as they quietly lay to rest the now dead Constitution along with a now deceased Old Glory.

    The next American Revolution will begin Sunday.

    peedoffamerican (ee1de0)

  405. It’s high time we stopped thinking of the SCOTUS as some sort of bulwark of liberty.
    Comment by Steve57 — 6/28/2012 @ 4:48 pm

    – Too true. That honor goes to the Constitution itself.

    Which is why CJ Roberts had to do an end-run around it by interpreting “penalty” to mean “tax”. He knew that he could not re-interpret the meaning of the COTUS, so he changed the definition of the clause in question until it fit within the bounds of what is allowable under the COTUS.

    What was it the man that nominated him said?
    “. . . activist judges, legislating from the bench.”

    Icy (9ccb08)

  406. Finkelman, you really need to reconsider the amount of text you are spamming into threads.

    SPQR (26be8b)

  407. Leviticus – you keep stating it was ambiguous in re. tax vs. fee/penalty. Can you point to something where it is referred to as a tax, or structured as a tax? The actual language does not seem to do so.”

    - JD

    JD – my comments haven’t been about whether I think the language re: tax vs. fee/penalty is ambiguous so much as that if Justice Roberts thinks there’s ambiguity, the right thing to do would be [etc. etc. etc.]. I don’t know if he’s referring to specific language, to the idea of the mandate generally, or what. If you were to ask me to give my best argument for the idea that the mandate as a tax, I would say that by the mandate the government charges people above a certain income an amount of money, and that they can get an exemption by purchasing insurance. Sounds like a tax to me, but I’m not wed to the idea (or to the alternative).

    Leviticus (102f62)

  408. Do judges do that, or is it very unusual?

    MD in Philly, it is not at all unusual. Judges are the only experts on the law in the courtroom and they are not bound by the parties’ arguments in any manner. Especially the Supreme Court. It is not even bound to decide the issue(s) on which it granted certiorari. Many cases have gone up as “Did Dick get the water?” and decided as “the pail was pink”.

    nk (875f57)

  409. Steve57-Intelligent dogs are easy to come by.

    mg (44de53)

  410. Amusingly, when the GOP regains control of the Senate, the repeal of Obamacare can be accomplished easily. The Democrats won’t be able to filibuster the repeal since they set the precedent that it can be done under budget reconcilation rules.

    SPQR (26be8b)

  411. Interesting take from Hugh Hewitt…

    http://www.hughhewitt.com/blog/g/d9407b34-b1bf-4d8a-9e93-fb23279faa9f

    Colonel Haiku (295c97)

  412. sammy finkleman
    I scrolled and scrolled and scrolled and
    then I scrolled some more

    Colonel Haiku (295c97)

  413. Leviticus, the Kennedy, Alito, Scalia, and Thomas point out that there is no ambiguity. Nowhere in the PPACA is this ever discussed as a penalty for disobeying a mandate that Congress imposed per its believe that the Commerce Clause permits it to regulate everything.

    All the decisions and dissents are available here.

    I’ll quote liberally from the main dissent:

    As far as §5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority,4 and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

    In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

    Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—evenwhen the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes amonetary penalty as the “principal consequence on thosewho transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).

    So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestion-ably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.” §5000A(b)(emphasis added). And several of Congress’ legislative“findings” with regard to §5000A confirm that it sets fortha legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. §18091(2)(A) (“The requirement regulates activity . . .”);§18091(2)(C) (“The requirement . . . will add millions of new consumers to the health insurance market . . .”); §18091(2)(D) (“The requirement achieves near-universal coverage”); §18091(2)(H) (“The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market”); §18091(3) (“[T]he Supreme Court of the United States ruled that insuranceis interstate commerce subject to Federal regulation”).

    …Quite separately, the fact that Congress (in its ownwords) “imposed . . . a penalty,” 26 U. S. C. §5000A(b)(1),for failure to buy insurance is alone sufficient to renderthat failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to dothe act is unlawful, because it cannot be supposed that theLegislature intended that a penalty should be inflicted for a lawful act.” Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: “If a statute inflicts a penalty for doing an act,the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.” 1 J. Kent, Commentaries on American Law 436 (1826).

    …In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor Generalassures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “[i]f [those subject to the Act] pay the tax penalty, they’re in compliance withthe law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These selfserving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear.

    The dissent then proceeds to discuss the “mountain of evidence” that this is not a tax per Congress’ own actions and statutory provisions, nearly all of which I’ll skip:

    And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.

    For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.

    There is no ambiguity. There’s a regulatory requirement, and a penalty for failing to comply.

    Steve57 (c441a6)

  414. Well, that makes the thread utterly unreadable.

    SPQR (26be8b)

  415. I probably should add, since I cut these parts out, the dissent notes precedent holds that if Congress imposes a penalty for performing an act, or for failing to perform an act, then they are penalizing something that is in itself unlawful. Even if there is no language specifically prohibiting the act it penalizes, or requiring the act that Congress penalizes if one fails to perform it. The penalty itself makes the act or failure to act unlawful on its own.

    Steve57 (c441a6)

  416. Sorry, SPQR, my comments usually look much shorter when I post them than they do in the live preview.

    If the moderators want to edit my post after the link or just delete it entirely please do so.

    I don’t want to make the thread unreadable.

    Steve57 (c441a6)

  417. ** shrug **
    Its too late.

    SPQR (26be8b)

  418. nk- thanks for the info. I guess that makes Roberts’ behavior more understandable.

    On Hewitt, and I guess krauthamer said/wrote this somewhere, that Roberts made a bit of a “statesmanship” move to avoid the SCOTUS being the center of pro and anti Obama ideology. so, he limited the Commerce Clause but allowed it as understood as a tax, which makes it even more of a political problem for Obama. of course, some say SCOTUS justices would not do something like that, but to the degree Roberts was making himnself look bad he didn’t mind that for the sake of more important things.

    Who knows. Lots of people contributing to Romney today.

    MD in Philly (3d3f72)

  419. There are two rules that the Supreme Court sometimes only pays lip service to and sometimes follows: That deference will be granted to legislative acts, i.e., they go in with the benefit of the doubt; and, a statute will not be held unconstitutional if it can be construed in a manner which makes it constitutional. So Roberts can be said to be playing by the rules. Or it can be said that he took them too far.

    nk (875f57)

  420. 410-First time I laughed out loud all day. Thanks Colonel

    mg (44de53)

  421. Leviticus – I am not meaning to harp on it, but I could not find one instance where it was referred to as a tax. It was uniformly referred to as penalties and fines.

    JD (318f81)

  422. Leviticus – I am not meaning to harp on it, but I could not find one instance where it was referred to as a tax. It was uniformly referred to as penalties and fines.

    Indeed. The plain meaning of the word “penalty” — a word used over and over and over again — is what should govern.

    If we followed Scalia’s textualism.

    I have a new post about this, as it happens.

    Patterico (feda6b)

  423. Interesting take from Hugh Hewitt…

    I believe someone somewhere once explained that Hugh Hewitt is the guy who takes a huge bite from a shit sandwich and tells you how delicious it is. He is relentlessly optimistic, and while that is a wonderful quality, in this case I think it has caused him to put a happy face on a very depressing situation.

    I don’t buy the argument that this was a good thing for conservatives (or even for Republicans). In my view, it most assuredly is not.

    Patterico (feda6b)

  424. I don’t think this was a good decision for conservatives at all, Patterico.

    I think that it actually was a good decision for Romney himself. And frankly, I used to be a big fan of Hugh Hewitt before he firmly latched his lips on Romney’s hindquarters.

    SPQR (26be8b)

  425. I still like Hugh. I just disagree with him strongly at times.

    But that’s OK. Disagreement ain’t no thang. Hugh Hewitt never tried to have me killed or fired, so he can be wrong without me jumping down his throat too much.

    Patterico (feda6b)

  426. 421. I don’t buy the argument that this was a good thing for conservatives (or even for Republicans). In my view, it most assuredly is not.

    Comment by Patterico — 6/28/2012 @ 6:49 pm

    Concur totally. As a matter of fact, I see the spin that this somehow is a long term win for conservatism no more substantial than Roberts’ opinion itself.

    If what you hoped to see actually isn’t there, pretend it is and proceed accordingly.

    Steve57 (c441a6)

  427. Patterico, ah well, there is that going for Hugh. One’s standards can change with certain experiences…

    SPQR (26be8b)

  428. 425. Patterico, ah well, there is that going for Hugh. One’s standards can change with certain experiences…

    Comment by SPQR — 6/28/2012 @ 7:13 pm

    True dat. I got off my first cruise in the Nav and moved into a room at the ‘Q. A whole room to myself! And bathroom I only had to share with one other guy in the adjoining room instead of 40 or 50, no one climbing the walls with a buffer out in the p-way all night long, 24 hour flight ops just a memory, and windows!

    I was in hog heaven.

    Steve57 (c441a6)

  429. Steve57, dude, you wanna play who had it worse in the service with me? ;-)

    SPQR (26be8b)

  430. Nope. Just saying that prior to cruise I might have found the accommodations somewhat less exalted than after cruise adjusted my expectations.

    Steve57 (c441a6)

  431. It does stick in my mind that I walked into the room wide-eyed, thinking “Wow, this is all for me? Just me?”

    If recall the scene in the old Sgt. York movie when Sgt. York was shown his room in the Waldorf Astoria, that was pretty much my reaction.

    Steve57 (c441a6)

  432. I don’t buy the argument that this was a good thing for conservatives (or even for Republicans). In my view, it most assuredly is not.

    Comment by Patterico

    November pudding
    will contain proof but it’s plain
    teh peeps don’t like it

    Colonel Haiku (400e0c)

  433. I quoted hugh and what people on his show were saying just for the breadth of opinion. I agree he tends to be optimistic and at times he seems naive (to me) in regards to what some will do.

    He’s on while I am sometimes cooking dinner or doing dishes, and I’m not sure who is any better to listen to. And as far as I know, he hasn’t tried to make P’s life any harder, but you never can tell…

    MD in Philly (3d3f72)

  434. Pyrrhic victory:

    Overall, 50 percent of those polled said they disapprove of the court’s 5–4 decision, while 45 percent said they support it. Consistently, a majority of voters said that they oppose the individual mandate (53 percent); believe taxes will increase (52 percent); believe their personal health-care costs will increase (56 percent); and disapprove of Obama’s handling of health care in general (58 percent). Only 24 percent of those polled said that they believe the ruling will make the country better off

    From Newsweek/Daily Beast poll.

    SPQR (26be8b)

  435. This will be a victory for conservatives if it re-invigorates the TEA Party and Social-Cons, leading to an overwhelming victory for the GOP in November installing Romney in the White House, and causeing the GOP to pick-up the Senate, and increase their majority in the House – and with the preponderance of those new members owing some allegiance to the TEA Party which will possibly, hopefully, allow us to begin to turn this Leviathan around and Restore the Republic!

    And those are the Dreams of My Father.

    AD-RtR/OS! (b8ab92)


Powered by WordPress.

Page loaded in: 0.9693 secs.