Patterico's Pontifications

6/28/2012

Today’s ObamaCare Decision: Scalia’s Textualism Loses to Roberts’s Reinterpretation of Words

Filed under: General — Patterico @ 6:37 pm

The rule of law depends on judges adhering to the words of the law. Textualism is thus critical to the rule of law. Textualism was cast aside today, and we are all paying the price.

Today’s ObamaCare decision boiled down to a fairly simple question: was the mandate a “penalty” or a “tax”? Congress called it a penalty — not once, but multiple times. But Judge Roberts and the four liberal Justices decided to ignore the plain meaning of the word “penalty,” and redefined it to mean “tax.”

Justice Roberts’s motives for doing this are known only to him. But if he had done his job properly, and interpreted the statutory language according to Justice Scalia’s theory of textualism, we conservatives would be celebrating today. Instead, we bemoan the rewriting of a statute in a manner that radically defines the balance of power between the states and the federal government, not to mention the relationship between the federal government and the individual citizen.

I have argued until I am blue in the face that, whatever the merits of trying to divine unexpressed “intent” in the meaning of words in everyday communication, the rule of law requires that the plain meaning of words govern the interpretation of statutes passed by legislative bodies. As I explained in May 2010:

Unlike most legal interpreters, who are willing to look to indicators of legislative intent in cases where the plain language is ambiguous, Justice Scalia rejects any reliance on legislative intent that is not reflected in the plain text.

Textualism, Scalia argues in his book “A Matter of Interpretation,” is what undergirds the rule of law: “It is what makes government a government of laws and not of men.” As he says: “We are governed by laws, not by the intentions of legislators.” This survey of Scalia’s textualist approach summarizes the philosophy well: “[I]f the law does not mean what it says and does not say what it means, citizens are left at a loss concerning how they should conduct themselves.” Justice Scalia has put it more succinctly: “Once text is abandoned, one intuition will serve as well as the other.”

Textualism is the mode of analysis that Justice Scalia employs in today’s decision, whereas Justice Roberts employs a more touchy-feely sort of analysis, which rejects the plain meaning of the words as mere “labels” that can be rewritten to save the statute’s constitutionality:

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.

They said “penalty,” in other words, but they didn’t really mean penalty. Roberts expands on the need to ignore those pesky labels:

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. [But] labels should not control here.

Scalia, by contrast, marshals several arguments in favor of the penalty being construed as a penalty — but the one he keeps coming back to is that Congress called it a penalty:

We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

. . . .

So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain mini- mum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential cover- age.” 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.”

. . . .

[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and else- where throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”

. . . .

In the face of all these indications of a regulatory re- quirement accompanied by a penalty, the Solicitor General assures 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 with the law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear.

. . . .

The last of the feeble arguments in favor of petition- ers that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement.

It makes no sense to go on about “legislative intent” as giving meaning to statutory language, when a) the subjective intent of the lawmakers is diverse and unknowable, and b) most of them haven’t even read the words which their intent supposedly infuses with meaning:

[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text. . . . What’s more, often the “intent” of the legislators is non-existent, as they simply ratify language written by other people without even reading it.

That is why the rule of law requires that the plain meaning of a statute’s words must govern. If Chief Justice Roberts had simply paid attention to this simple precept — if he had simply adhered to Scalia’s principles of textualism and plain meaning — we wouldn’t be in such a dark place tonight.

UPDATE: This discussion is a bit oversimplified. I explore more of the nuances here.

272 Responses to “Today’s ObamaCare Decision: Scalia’s Textualism Loses to Roberts’s Reinterpretation of Words”

  1. this “constitution” thing is an effing joke anymore

    that’s Obama’s biggest victory right there

    happyfeet (3c92a1)

  2. It’s a joke, but a large part of what makes it a joke is a mode of analysis that allows judges to ignore the plain meaning of statutory language in favor of some other mode of analysis that allows them to rewrite the statute.

    If the Constitution’s plain meaning is open to judicial rewriting, then it becomes a joke — if judges feel like being comedians the day they write their decisions.

    Patterico (feda6b)

  3. With respect, there is a small problem with your analysis, Patterico. Roberts voted with the other conservative judges to strike down the act earlier, that’s obvious from the fact that Scalia’s dissent still has the language and format of having been drafted as a majority opinion.

    When and why did he shift votes, and is his concurring opinion explanatory of his vote or an excuse?

    SPQR (26be8b)

  4. A law not in front of the Justices was declared constitutional.

    JD (318f81)

  5. I don’t see that as a “problem” with any portion of my analysis, SPQR. I have seen those discussions, however, and I agree that Scalia’s opinion looks like a draft of a majority opinion. That could be simply because he hoped that it would be — that its logic would bring Roberts around. That is why he eschewed the bitter attacks he often saves for majority voters who are obviously a lost cause.

    But none of that has much to do with the proper method of interpretation — and which side used it. In my view, those issues are clear.

    Patterico (feda6b)

  6. A law not in front of the Justices was declared constitutional.

    Indeed. This is what happens when one eschews textualism and plain meaning.

    Words mean things. At least in statutory language, you can’t just rewrite them according to some subjective intent.

    Patterico (feda6b)

  7. Dead on mr. feet

    mg (44de53)

  8. Patterico, my apologies but I think I failed to communicate my point. Your discussion is completely correct, and I agree and support your point utterly – and always have.

    I just don’t personally think that Roberts’ opinion was very … what is the word I want to use … sincere? Credible?

    I think its a cheap veneer over a political decision.

    SPQR (26be8b)

  9. Gotcha, SPQR. It certainly doesn’t seem very principled.

    Patterico (feda6b)

  10. I updated the post with this quote I like from an old post of mine:

    [L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text. . . . What’s more, often the “intent” of the legislators is non-existent, as they simply ratify language written by other people without even reading it.

    Patterico (feda6b)

  11. Compared to the devastating dissent, Roberts’ assertion that it’s a tax is pathetically weak.

    Basically it boils down to “well, if Congress mandated that you buy energy efficient windows or you have to pay the IRS x amount of dollars based on your income as long as it’s over x amount, and they didn’t call that payment a ‘tax’ or ‘penalty’ or anything, no one would argue it wasn’t a tax.”

    Whether that’s true or not is debatable, but that isn’t at all what Congress did in the ACA.

    He has to depart from reality, both the text of the statute as well as the meat of the dissent, in order to come up with some theoretical analogy that supports his assertion that there’s no difference between the mere “labels” that are the words “tax” and “penalty.”

    Really, in addition to pretending that Congress said what it didn’t say, he has to avoid acknowledging the dissent said a whole lot that he can’t successfully refute with his trivializations.

    On reasoning like this, the SCOTUS restores or defends its reputation?

    Steve57 (c441a6)

  12. Meanwhile Rome burns.

    I am very disappointed. At this point, I feel that armed rebellion has moved much closer to a reality.

    Jay H Curtis (804124)

  13. ______________________________________________

    Justice Roberts’s motives for doing this are known only to him.

    The pure symbolism of his casting the deciding vote is interesting in that he was the justice caught on camera, acting resentful and indignant, when Obama in his State of the Union speech awhile back referred to the Supreme Court in a haughty, arrogant manner.

    The only good thing about the fifth vote coming from Roberts is that if the thumbs up to Obamacare had instead originated from Anthony Kennedy, I would have been more irritated towards him since he’s run up a longer track record of someone who apparently is struggling with closeted foolish liberal biases.

    Mark (90205b)

  14. Finally, please God, let the majority of Americans recognize the evil that is the Rule of Man.

    Ed from SFV (68921e)

  15. Pat – any chance of a chat tonight, or perhaps the next few days?

    Between this and Arizona there is a lot to vent about.

    Ed from SFV (68921e)

  16. So, what I interpret you saying here is that you approve of my ruling.

    Hoystory (a14eb4)

  17. ____________________________________________

    When and why did he shift votes,

    I’m so exasperated and disgusted with today’s ruling that I feel an analysis of pure sarcasm makes as much sense as anything else: John Roberts apparently came across an assessment of Cornelius Vaughey in Maryland dealing with Scott Walker, and so admired the judicial reasoning in that case, that he wanted to somehow emulate it.

    Mark (90205b)

  18. Ed from SFV,

    I hadn’t thought about it. I have an awful lot of work these days (actually for the past three years or so!), and am getting back to it once I have cooked my dinner. Probably not tonight; sorry.

    Patterico (feda6b)

  19. Umm, I’m as disappointed as anyone here with the final outcome, except…

    Didn’t SEVEN of the nine Justices just agree that the Commerce Clause use would have been unconstitutional, and that the mandate would have then fallen under that usage?

    Maybe Roberts “switched sides” to make sure that it was not just a conservative ruling? And that that is now the rule of the land?

    Unfortunately Congress does have the right to levy taxes…though I definitely agree it sure seems in plain language to be a penalty…

    flicka47 (27596a)

  20. I read the Chief Justice’s opinion, and, quite frankly, I can’t see anything wrong with it, and I wish that I could. There was more than enough precedent to enable the Chief Justice to define the penalty as a tax, even if it isn’t specifically labeled one.

    The strange part is that the individual mandate is unconstitutional, but the penalty for not buying insurance is. In the real world, that makes no sense, but whoever said that the law was the real world?

    The disappointed Dana (f68855)

  21. Didn’t SEVEN of the nine Justices just agree that the Commerce Clause use would have been unconstitutional, and that the mandate would have then fallen under that usage?

    No, that was the taxing and spending clause (Article I, Section 8).

    The Commerce Clause vote was 5-4 against such a mandate falling within that enumerated power.

    So that hangs on a knife’s edge.

    Steve57 (c441a6)

  22. Words mean things. At least in statutory language, you can’t just rewrite them according to some subjective intent.
    Comment by Patterico — 6/28/2012 @ 6:52 pm

    – You CAN if you are the Ninth Clown Circus or the California Supreme Kangaroo Court.

    Icy (9ccb08)

  23. I read the Chief Justice’s opinion, and, quite frankly, I can’t see anything wrong with it, and I wish that I could. There was more than enough precedent to enable the Chief Justice to define the penalty as a tax, even if it isn’t specifically labeled one.

    I would not allow “precedent” to overrule text. That’s how we get stuck with Wickard.

    Patterico (feda6b)

  24. So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is.

    Though I hadn’t read this until now, this is precisely the point that has been bugging me all day about Roberts calling the mandate a “tax”. In order to consider it a “tax”, the payment had to be divorced from the action (or lack of action) which it penalizes before examining it. It’s as if he disassembled a loaded gun, examined the barrel by itself, reassembled it, and handed it back to a thug declaring the gun to be inert because the component parts are not dangerous by themselves.

    QuadGMoto (3eb042)

  25. Maybe Roberts “switched sides” to make sure that it was not just a conservative ruling? And that that is now the rule of the land

    Umbday

    Icy (9ccb08)

  26. Americans are markedly less free as a people than they were before Roberts rendered his perverse opinion today.

    There’s just no away around that.

    happyfeet (3c92a1)

  27. flicka, I meant just the Spending Clause (Article I, Section 8, clause 2).

    We’ve been talking all day how Roberts found it a proper exercise of Congress’ power under Article I, Section 8, clause 2, so it was boneheaded of me to not draw the distinction.

    Steve57 (c441a6)

  28. *way* I mean

    happyfeet (3c92a1)

  29. And the Spending Clause vote was in reference to MediCaid expansion, not the mandate.

    Steve57 (c441a6)

  30. this is seriously harshing my celebration of Orrin Schip’s victory

    happyfeet (3c92a1)

  31. And when you get right down to it, can Congress legislate a command of this sort by imposing a refundable tax?

    While Patterico’s textual lament is well founded, suppose they had called it a tax straight up (never mind that it would not have passed, the Court cannot judge that). Are there any limits to Congress’ power in this regard? Do they simply have to make the tax linked to their income or excise tax power in some tenuous way and anything goes?

    Can they impose a $5000 income surcharge on everyone who makes more than X, refundable if you buy a GM car? Tax you for a lack of interracial dating or too many kids or using plastic bags at the grocery store?

    Is the only defense against this political (vote the b*stards out)? Because I see a way for Congress to do any damn thing they please as long as they call it a refundable “tax”, and don’t think the politicians can’t see that too.

    Yes, the decision puts solid limits on the Commerce Clause, Necessary&Proper and the Spending Clause. But it seems to open some damn wide floodgates on what they can do with taxes.

    Limited government is still out of reach.

    Kevin M (bf8ad7)

  32. Can they impose a $5000 income surcharge on everyone who makes more than X, refundable if you buy a GM car? Tax you for a lack of interracial dating or too many kids or using plastic bags at the grocery store?

    yes.

    happyfeet (3c92a1)

  33. Although I completely disagree with the ruling, Roberts did say it is not the court’s duty to reverse law if it can be seen as Constitutional.

    In other words, you get what you vote for.

    Although I think his decision was incorrect, I am not a lawyer, so I’m not going down that road.

    Nonetheless, I have to agree that when the electorate votes for candidates, and they do something you don’t like, you better gear up and change the lawmakers.

    We better gear up and change the lawmakers. Especially when they will have the chance to say yea or nay to the next few SCOTUS nominees.

    Whether he intended to or not, Roberts sent a clear message.

    Ag80 (b2c81f)

  34. Now that Congress can compel Americans to buy anything, it’s time to pass the “Every non-Felon American Adult must own a Handgun Act”!

    liontooth (c33c1e)

  35. Here’s the actual language by Roberts:

    “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

    Ag80 (b2c81f)

  36. Of course, we are supposed to be happy the liberals didn’t have their way.

    Kevin M (bf8ad7)

  37. Mr. 80 the capricious and perverse Roberts sent the clear clear message that when it comes to safeguarding our freedoms, putting an unprincipled and whorish R in a position of responsibility is no better than putting food stamp in there

    happyfeet (3c92a1)

  38. liontooth, that is a silly example because Congress already had that power through the Militia clause.

    SPQR (26be8b)

  39. I’m seeing more and more language in the various opinions that is simply incoherent, because it references things that did not actually occur, that confirms for me that not only did Roberts change his vote – he did it only days ago.

    These opinions are word salad with the failure to edit them in time to reflect the final result. People are going to write books on the topic of the utter mess made by the Supreme Court in this case.

    SPQR (26be8b)

  40. Up to now, they have used the income tax power to encourage things. Buy solar panels and get a tax credit. Fine. Maybe I’m missing some rebate, but I’m not being actively penalized for inaction.

    But now, it’s DO IT OR ELSE. Not the same thing at all, and Roberts is a true effing sh1t for giving this a pass. Not only do we have to repeal this law, we need a Constitutional Amendment to undo this crap.

    When the ramifications of this become clearer, there is going to be a groundswell of revolt. This is likely worse than the Commerce Clause power being extended because the tax power has no such limits as mere Commerce.

    Kevin M (bf8ad7)

  41. Mr. feet: I can’t argue with that, but who we elect makes a difference. I can’t know what Roberts thinks or why he did what he did. I can only report what he said.

    Ag80 (b2c81f)

  42. being an American is not really a fun thing anymore Mr. 80

    at best you sigh a lot

    happyfeet (3c92a1)

  43. How to fix it.

    1) Win the Presidency and the Senate.

    2) Repeal via Reconciliation, or if need be kill the filibuster. May have to anyway to get the judges we clearly need.

    3) Pass a law taxing everyone $1000, refundable if they watch Hannity at $10 a night. That will get the message across quickly.

    Kevin M (bf8ad7)

  44. 20. I read the Chief Justice’s opinion, and, quite frankly, I can’t see anything wrong with it, and I wish that I could. There was more than enough precedent to enable the Chief Justice to define the penalty as a tax, even if it isn’t specifically labeled one.

    The strange part is that the individual mandate is unconstitutional, but the penalty for not buying insurance is. In the real world, that makes no sense, but whoever said that the law was the real world?

    Comment by The disappointed Dana — 6/28/2012 @ 7:41 pm

    Disappointed Dana, the full decisions can be found here.

    I quoted at length from the joint dissent on this thread. Most would say at too much length. But it’s an abridged version of the dissent, the relevant sections of which can be found on pages 142-152 of the PDF, under the heading “The Taxing Power”

    That’s a good place to start if you want to read a good treatise on what’s wrong with Roberts ruling on the mandate.

    Roberts, on the other hand, disposes of the dissenters argument in two brief paragraphs on pages 45-46. In other words, he doesn’t deal with the points raised in the joint dissent because he can’t.

    Chief Justice Roberts decision r.e. the tax as opposed to the penalty makes no more sense in the real world than you have concluded. Kennedy, Scalia, Alito, and Thomas demonstrate that to devastating effect.

    Steve57 (c441a6)

  45. So, 5-4 against the use of a mandate under the Commerce Clause being Constitutional. 7-2 for the Medicaid expansion also being unconstutional & the only way it flies is 5-4 to uphold the law with a Constitutionally allowed “tax”?

    Grumble, grumble..

    flicka47 (27596a)

  46. BTW, if Roberts switched his vote due to threats or an accommodation, and this comes out, what do we do? Wait until Romney is Prez and then use the scandal to force Roberts to quit? If he did this to “preserve the integrity of the Court” in the face of Obama’s threats, he made a really bad error in judgement and undermined what he wished to protect. Because it will come out.

    Kevin M (bf8ad7)

  47. Although I completely disagree with the ruling, Roberts did say it is not the court’s duty to reverse law if it can be seen as Constitutional.

    No one can argue with that, Ag80.

    The problem is that Roberts also said in today’s ruling that it’s the SCOTUS’s job to pretend the language of the statute is something it’s not in order to claim it can be seen as Constitutional.

    That’s the part everyone’s arguing with. Except, of course, those who don’t care if they get to the right policy result by any means necessary, including by hook and by crook.

    Steve57 (c441a6)

  48. Mr. feet: I sigh a lot and envision my grandchildren in New Pioneer uniforms. That’s assuming our bankrupt nation can still afford to purchase the material from China for the neckerchiefs.

    Ag80 (b2c81f)

  49. SPQR, the militia clause only applies to men between a certain age. It can’t compel Barbra Boxer to purchase a handgun.

    liontooth (c33c1e)

  50. Dana,

    Can you name an area where I’m threatened with additional tax unless I take action I normally might not? As it stands it’s a tax debit masquerading as a tax credit. I haven’t seen that before and the precedent is worrisome.

    Kevin M (bf8ad7)

  51. the good news though Mr. 80…

    now that this is out of the way we can get to work on McCain’s boxing commission!

    happyfeet (3c92a1)

  52. you were supposed to high-five me there

    happyfeet (3c92a1)

  53. liontooth, perhaps but I want to hear Boxer argue that the Constitution doesn’t mean “people” when it says “men”.

    Kevin M (bf8ad7)

  54. flicka, they didn’t say the MediCaid expansion was unconstitutional per se, but that the Spending Clause doesn’t give Congress the power to penalize states in order to compel them to expand their MediCaid programs.

    Anyway, that’s the gist of it from what I understand.

    The important takeaway is that 5-4 decisions are illegitimate and destroy the credibility of the Supreme Court if they go against the liberal agenda, totally legitimate and credibility-enhancing if they support the liberal agenda.

    Steve57 (c441a6)

  55. Mr. feet: Heck yeah! That’s something the parties can cross the aisle on. Then they can start working on outlawing football. It’s a win-win-lose for everybody.

    Maybe they can get together to make my neighbor stop calling me Ken.

    Ag80 (b2c81f)

  56. As it stands it’s a tax debit masquerading as a tax credit.

    That’s true but at least there’d have been an effort to make it a tax issue. For Roberts to invent that when it wasn’t in the law is really scary.

    liontooth (c33c1e)

  57. We need to put 51 steel spined conservatives in the Senate and roll the dice on Romney this fall.

    First repeal Obamacare, then IMPEACH 5 SCOTUS that voted to uphold.

    PCD (66bba0)

  58. Hey, they can tax us for not voting Democrat.

    PCD (66bba0)

  59. Kevin M, please it’s Senator Boxer, lol

    liontooth (c33c1e)

  60. meh teh Chief Justice
    his name is not John Roberts
    we got damn Bob Roberts

    Colonel Haiku (400e0c)

  61. For Roberts to invent that when it wasn’t in the law is really scary.

    He didn’t invent it all on his own. That was in the government’s brief as an alternate means of justifying an individual mandate.

    The government argued that if Congress had done things differently, it might have been legal (read the joint dissent on this, it’s an awesome takedown on how feebly they supported that argument). And Roberts said, OK, let’s go with that.

    And here’s the awesome part. Even though Obama’s own Solicitor General made the tax argument that Roberts relied on, for campaign PR purposes Obama will say he didn’t lie. He legitimately believed the fee they were going to charge “freeloaders” was a penalty (completely opposite the argument his administration made in court) not a tax. It’s not his fault if some damned Bush appointee called it a tax.

    It’s Bush’s fault!

    Steve57 (c441a6)

  62. be of good cheer friends
    Barry too clever by half
    won battle lost war

    Colonel Haiku (400e0c)

  63. “… But also, and more important, the Court’s decision today contains some of the most muscular enumerated-powers and constitutional-structure-matters language of any (majority) opinion in decades. Judicial conservatives, it seems me to me, should be thankful (and grateful to the chief justice) for the approach taken by a majority to the Necessary and Proper Clause and to the so-called Spending Power, and should probably see this “good” about the ACA decision as outweighing the “bad” (i.e., that, because the mandate is, contrary to the president’s earlier assurances, a “tax,” it will have to be repealed legislatively and electorally, rather than judicially). The ruling on the Medicaid expansion, in particular, is a big “win” for federalism, it seems to me.

    Mr. Walsh’s post is called “Won’t Get Fooled Again”, but I don’t see how anyone was “fooled” before. President Bush appointed, as he said he would, first-rate judges and justices, and the law is better for it. And, in my view, one of the strongest reasons to support Governor Romney is the fact that he is far more likely than is President Obama to appoint judges who understand the role of the Court and the vocation of a judge in the way that John Roberts does.

    One more bit of silver lining: Today’s decision gives other courts the chance to rule — and I am confident that many will — that the contraception-coverage mandate violates the First Amendment and the Religious Freedom Restoration Act.”

    http://www.nationalreview.com/bench-memos/304355/conservatives-misguided-criticism-roberts-richard-garnett

    Colonel Haiku (400e0c)

  64. the National Review tool is also saying that support for the Kennedy-Alito-Thomas-Scalia opinion is perforce also somehow misguided

    and that’s a profoundly stupid thing to say I think, National Review tool

    happyfeet (3c92a1)

  65. “Very, very certain Roberts is playing a longer game”

    http://www.redstate.com/erick/2012/06/28/im-not-down-on-john-roberts/

    I can’t.believe.I’m.saying.this, Erickson hit this one out of the park.

    gary gulrud (dd7d4e)

  66. our pervert chief justice may have the luxury of a long game

    but our pitiful little country doesn’t

    happyfeet (3c92a1)

  67. 66. No lo contendere.

    gary gulrud (dd7d4e)

  68. our pervert chief justice may have the luxury of a long game

    but our pitiful little country doesn’t

    No, our pitiful country needs someone who plays a Constitutional game, not a “long” one. (Whatever that’s supposed to mean.)

    But our homey, CJR, don’t play that.

    Steve57 (c441a6)

  69. “It depends on what the meaning of the word ‘taxes’ is.”

    Supreme Court Chief Justice Roberts Clinton

    Teflon Dad (51022d)

  70. I can’t.believe.I’m.saying.this, Erickson hit this one out of the park.

    I think it’s absurd.

    Patterico (feda6b)

  71. But our homey, CJR, don’t play that.

    I meant to be all “keepin’ it real” and call him CJRo.

    Steve57 (c441a6)

  72. No, our pitiful country needs someone who plays a Constitutional game, not a “long” one.

    Agreed. If the law wasn’t a tax, don’t pretend it is just to avoid a cynical demonization of the Court.

    What’s the point of a prestigious Court that doesn’t enforce anything?

    Dustin (330eed)

  73. I thin RINO Senator’s be craning they necks looking for laser traces on they backs.

    gary gulrud (dd7d4e)

  74. I think Harriet Miers would have been a better choice.

    AZ Bob (1c9631)

  75. what we know for sure for sure for sure is that if this had been an appeals court decision this Roberts dickface couldn’t then get confirmed to the Supreme Court to save his life

    Mr. Governor Romney please to take special note of this observation as you contemplate your reelection to the presidency

    happyfeet (3c92a1)

  76. I am reminded that when Social Security was being debated it was called a pension. It was taken to the Supreme Court as someone couldn’t figure out where the federal government had the right to mandate all workers pay into a pension plan. That’s when the government said to the SCOTUS that it was a tax, not a pension and that’s how they got away with it.

    They have a history of calling something one thing to the people and telling a different story to the Supreme Court. It doesn’t matter what they call it when they are debating it. The key, I think, is here:

    The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017….

    So it is basically a change to the income tax code.

    As Prof. Althouse says:

    So it’s just an option. You can opt not to buy the insurance and to pay the “penalty.” Whichever you want. The government said exactly that to the Court. You won’t have done anything wrong, so pay whichever is less. And if you are one of those healthy people whom the insurance companies need to bulk up their funds so they can pay the expenses of their unhealthy, you should hand your money to the government. Screw the insurance companies! That is the plan. The government said so. If and when you have health-care expenses that outweigh the cost of insurance, then go ahead and buy insurance. Again: screw the insurance companies. That is the plan.

    So basically it is designed to break the insurance companies by giving you a cheaper alternative: pay the govt instead of the insurance company if the penalty is cheaper for you and if you don’t make enough to file income tax, you have no tax and therefore no mandate.

    crosspatch (6adcc9)

  77. 73. I thin RINO Senator’s be craning they necks looking for laser traces on they backs.

    Comment by gary gulrud — 6/28/2012 @ 9:22 pm

    Word!

    But not CJRo. He ain’t all “constitutionally” like those other dead white dudes. Or soon to be dead white dudes.

    He’s a trendy Chief Justice, our CJRo. He knows what the people want, and figures out how to give it to them.

    Like Santa Claus.

    If it ain’t in the law, he’s got elves in his workshop that can make it show up like gifts under the tree for Christmas.

    Steve57 (c441a6)

  78. If there is one (slight) silver lining in all of this it will be when Barack and the other Dems try to dance around the fact that the ONLY people facing having to pay this “tax” are the middle class — the same group to whom the President has sworn up and down for the past four years would never have their taxes raised.

    What is he going to say to them? “Hey, your taxes won’t go up at all — you’ll just have to fork over a couple grand for an insurance policy”?

    That, right there, is what they call “a tough sell.”

    Icy (9ccb08)

  79. Patterico, it is absurd. The tax power has just gone beyond what they wanted to do with the Commerce power and it is thoroughly unlimited.

    Kevin M (bf8ad7)

  80. I thought the only silver lining today was how Roberts’ juvenile antics completely nullified the democrats’ carefully-orchestrated spinning and protest of the censuring of Obama’s tool at Justice

    happyfeet (3c92a1)

  81. Basically he is saying that it doesn’t matter if Congress called it a penalty or called it cab fare to the moon. Congress can lie all they want and it is not the place for the Supreme Court to enforce ethics in Congress. The Solicitor General called it a tax and it looks like a tax and it smells like a tax and it is collected by the tax collector.

    What he has done here is exposed to the light of day the fact that it is really a tax for all to see after the Democrats said they would never pass a middle class tax increase. THAT is the angle to take to the elections. They swore they would not raise taxes on the middle class and passed the biggest middle class tax increase in history. That is what he shined the light on with a lamp like an airliner landing light.

    He also ruled on another thing that is very important. He basically struck down the notion of the federal government withholding funds to the states if they don’t go along with federal policy. This is the first major ruling that struck down federal coercion of the states by withholding cash.

    See the SCOTUSblog here:

    http://www.scotusblog.com/2012/06/major-limits-on-the-congresss-powers-in-an-opinion-worthy-of-john-marshall/

    This was actually huge. I believe he handed the Democrats a Pyrrhic victory if it is played properly. It is like George HW Bush’s “read my lips, no new taxes”. This SHOULD absolutely clobber the Democrats.

    crosspatch (6adcc9)

  82. In a nutshell, the Chief Justice said “Ok, fine, you want it real bad, you’re going to get it real bad”. Now the Democrats are going to have to wallow in their “victorious” tax increase.

    crosspatch (6adcc9)

  83. I dunno, Mr. feets. I think I’m gonna enjoy a cold one while I watch the lightning show over the mountains — and then read a Philip K. Dick book to try and separate the reality from illusion.

    Icy (9ccb08)

  84. i wanna see lightning over the mountains in the worst way, specially if it’s followed by the rumble of distant thunder, auguring rain

    but I probably have to settle for lowfat yogurt

    happyfeet (3c92a1)

  85. Its a good thing roberts is conservative or we would have lost Arizona and obamacare. Oh, wait. We did.

    What an AH!

    Jim (bd60ff)

  86. 64. the National Review tool is also saying that support for the Kennedy-Alito-Thomas-Scalia opinion is perforce also somehow misguided

    and that’s a profoundly stupid thing to say I think, National Review tool

    Comment by happyfeet — 6/28/2012 @ 8:51 pm

    Why, don’t be calling my Public School chum Richard Garnett a tool; that’s enough cheek from you!

    He’s a hale, hearty fellow well met.

    You may be more familiar with his work when he wasn’t writing under his nom de guerre, but under his real name T. Coddington Voorhees VII when the flagship periodical of genteel yacht-club conservatism was more appropriately named The National Topsider.

    Unfortunately, to appeal to a Republican crowd of lesser breeding, the kind of unkempt TEA Partyish lout that doesn’t appreciate the subtle nuances of a brand of Conservatism that can justify the PPACA while delivering witty jabs at the intellectual deficiencies of it’s somewhat disappointing but undeniably well attired progenitor, he now writes in mufti at that greatly diminished periodical.

    Both he and Roberts hearken back to what was truly the golden era of the Grand Old Party. Those halcyon days when we would lose at the polls, but in the process deliver our opponents their well-deserved comeuppance in the bargain with our subtle yet cutting ripostes.

    I want you to know, Mr. Feets, that what’s important isn’t winning or losing but knowing that all the right people will appreciate your witticisms and we will all enjoy a good chuckle together at the next regatta.

    Good day, sir!

    Steve57 (c441a6)

  87. good day indeed Mr. 57 you’ve given me a lot to think about

    and you know, I bought a naughty little grappa the other day and I’m thinking yes yes – it will delightfully inform my musings and ruminations on your “commentings”

    brb

    happyfeet (3c92a1)

  88. What Congress calls it shouldn’t matter all that much. If it walks like a duck, and quacks like a duck, then it doesn’t matter if Congress calls it a horse.

    That said, are we now at the point where Congress can impose a fine for any behavior it wants to discourage???

    Andrew (fd3a92)

  89. i wanna see lightning over the mountains in the worst way, specially if it’s followed by the rumble of distant thunder, auguring rain

    – Funny . . . just heard that rumble of distant thunder as I read your post. It’s a beautiful night here in southern AZ; breezy and pleasant.

    Quite a contrast to the storm clouds welling over our basic freedoms, I would say.

    Icy (9ccb08)

  90. at best you sigh a lot

    happyfeet (3c92a1)

  91. _______________________________________________

    They swore they would not raise taxes on the middle class and passed the biggest middle class tax increase in history

    But, of course, this is how one part of that liberal cabal, referring to the LA Times, began a portion of their coverage today on the court’s ruling. With the observation of “cheering in many quarters.”

    However, the paper’s reporter was objective enough to make it sound like the plan, even within the context of ultra-blue, Obama-butt-kissing California, will be sort of the proverbial “a camel is a horse designed by committee.”

    The slopfest that is Obamacare adds much more uncertainty to the mindset/mood of the public, including various employers and employees. It therefore hardly helps the economy. But in the words of the pastor who was a buddy of the originator of Obamacare for almost 20 years: “Goddamn America! Your chickens are coming home to roost!”

    latimes.com: Amid the cheering in many quarters over the Supreme Court’s decision to uphold the federal healthcare law, a sobering fact remains: California’s ailing healthcare system won’t be easy to fix. Millions of Californians will still lack insurance even after a massive coverage expansion. Medical costs and premiums are expected to keep rising, at least in the short run. And many of those who do gain coverage could have a tough time finding a doctor to treat them.

    The court ruling does provide enormous benefits to a state where 7 million residents are uninsured. Starting in 2014, California will receive as much as $15 billion a year to expand Medi-Cal coverage for the poor and to provide federal subsidies to people buying policies in a state-run exchange. About 4 million Californians are expected to gain coverage.

    The average premium for employer coverage in California has increased 154% over the last decade, more than five times the 29% increase in the state’s overall inflation rate. Experts say premiums could rise further as the federal mandate increases demand for health coverage in a market dominated by a small group of insurers.

    More than 2 million Californians are expected to buy policies with federal subsidies earmarked for families earning about $92,000 or less annually. A family of four in California earning $70,275 would have to pay about $556 a month for subsidized coverage, according to the Kaiser Family Foundation. An additional 2 million Californians would be covered through an expansion of Medi-Cal, the joint state-federal program for the poor and disabled.

    About 3 million Californians are expected to remain uninsured. About 1 million of those won’t be able to afford coverage yet will be ineligible for federal aid because of their immigration status, and the other 2 million won’t participate even if they are eligible, according to research by UCLA and UC Berkeley.

    There are also concerns about whether California will have enough primary-care doctors willing to treat patients like Fayant. There are shortages of primary-care physicians in 74% of California’s counties, according to the California Medical Assn.

    Mark (90205b)

  92. Crosspatch, I’m not seeing the huge advantage to what you’re claiming as opposed to Roberts just saying that if Congress wants to impose penalties on you if you don’t participate in commerce so they can regulate you then they don’t have the power. The Commerce Clause doesn’t stretch that far, so the whole PPACA is unconstitutional.

    In other words, it’s not a tax. It’s what Congress calls it. Not what the judiciary wants to call it, and certainly not what the executive wants to call it, in order to pretend what Congress actually did was Constitutional. All legislative power rests in the House and Senate. The other two branches can’t put their heads together and fix the language of the statute. If Congress wants to tax commercial inactivity then they need to have the cajones to call a tax a tax, and if they don’t then the SCOTUS won’t do it for them upon the advice of the Obama administration.

    That’s the decision he should have made, and could have if he went with Kennedy, Scalia, Alito, and Thomas. Because that’s the call those four made.

    Instead, we have a lot of people trying through wishful thinking to pretend that the fact Robers folded under pressure was really a courageous act.

    Congress tried to make a mockery of the Constitution by claiming that the Commerce Clause gives them unlimited power over all human activity. I don’t see how Roberts making a mockery of the Constitution by making a hash of the separation of powers and relegislating from the bench is a step up. I’m sure not going to call it a b***sy move.

    Steve57 (c441a6)

  93. Comment by Andrew — 6/28/2012 @ 9:57 pm
    What Congress calls it shouldn’t matter all that much. If it walks like a duck, and quacks like a duck, then it doesn’t matter if Congress calls it a horse.
    – Except that it DOES matter what they call it! They specif

    That said, are we now at the point where Congress can impose a fine for any behavior it wants to discourage???
    – Pretty much.

    Icy (9ccb08)

  94. What Congress calls it shouldn’t matter all that much.

    Yeah, according to that pesky Constitution that prescribes which branch of the government gets to do what, the statutory language Congress uses matters a lot.

    If it walks like a duck, and quacks like a duck, then it doesn’t matter if Congress calls it a horse.

    It galloped and neighed like a regulatory penalty horse designed to enforce an individual mandate under an unconstitutional interpretation of the Commerce Clause.

    It was Roberts who “ducked” the issue and said we’ll just pretend Congress wrote something it didn’t, then redefined that illegal penalty into a nice legal tax.

    Had Roberts just agreed with the other four judges who called a horse a horse, Roberts wouldn’t have had to fowl himself in this manner and we’d all be done with the issue.

    Steve57 (c441a6)

  95. What makes this a “tax”, as opposed to, say, a copyright “fine”?

    QuadGMoto (3eb042)

  96. Comment by Andrew — 6/28/2012 @ 9:57 pm
    What Congress calls it shouldn’t matter all that much. If it walks like a duck, and quacks like a duck, then it doesn’t matter if Congress calls it a horse.
    – Except that it DOES matter what they call it! They specifically called it a “penalty” for the express purpose of coercing people into purchasing insurance. Since when does the federal government, specifically the Congress under the commerce clause, have the right to mandate that an individual purchase ANY product or service from the private sector? This thing didn’t “walk like a duck” AT ALL until CJ Roberts said it did.

    That said, are we now at the point where Congress can impose a fine for any behavior it wants to discourage???
    – Pretty much. Welcome to Nanny Bloomberg’s America!

    Icy (9ccb08)

  97. What makes this a “tax”, as opposed to, say, a copyright “fine”?

    A copyright fine is a legal penalty. Congress can regulate activity, and in order to violate a copyright you actually have to do something.

    Under the Commerce Clause, the majority consensus of today’s court (combining Roberts with the 4 dissenters) decided Congress can’t penalize you for not participating in an activity that they can regulate. They have to wait until you do something.

    That, and nothing more than that, makes this a tax per CJRo.

    Steve57 (c441a6)

  98. Crosspatch, I’m not seeing the huge advantage to what you’re claiming as opposed to Roberts just saying that if Congress wants to impose penalties on you if you don’t participate in commerce so they can regulate you then they don’t have the power. The Commerce Clause doesn’t stretch that far, so the whole PPACA is unconstitutional.

    I think they ruled 7-2 that the commerce clause did not apply here and that was basically my thinking when I made my prediction of a ruling. I thought it would be based on the notion that the commerce clause would be operative here. I didn’t pay enough attention to the tax angle.

    It isn’t really a “penalty”, it is a tax. If you don’t make enough money to pay income tax, you don’t pay it. How much you DO pay depends on your income, filing status, dependents, gross income, etc. It is a modification of the income tax law.

    What Roberts has done is to shine a massive light on Congressional Democrats hoodwinking people into thinking they were getting “affordable health insurance” when in fact they got the largest income tax increase in history.

    He exposed their duplicity.

    crosspatch (6adcc9)

  99. If Chief Justice Roberts was going to make up law with this crap sandwich, why couldn’t he do it before the Utah primaries so we could’ve hung this decision like a millstone around Senator Hatch’s neck. This would’ve likely changed the result.

    NJRob (1d92fc)

  100. Is it possible that Roberts was going for a long game, but not the one described by Erick? I haven’t been able to read the opinions, just summaries like Patterico’s (due to other obligations).

    If Roberts had gone with the dissenters, would their brief have had the point that the Commerce Clause does not justify this law? Would their brief have had the point about the Medicaid expansion?

    It seems that now that these penalties are declared unambiguously to be taxes, it is now unambiguously a revenue bill. My interpretation is that this bill did not originate in the House and can be put aside on that basis in a subsequent challenge.

    Was Roberts going for the whole enchilada rather than just the bill itself?

    I guess my theory is weak because it seems likely Roberts could have gotten all those things if he had joined the dissenters.

    Ken in Camarillo (645bed)

  101. Steve57

    Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer. The States are given no such choice in this case: They must either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding. The remedy for that constitutional violation is to preclude the Federal Government from imposing such a sanction. That remedy does not require striking down other portions of the Affordable Care Act.

    From the tail end of Robert’s opinion, wouldn’t calling it a “constitutional violation” mean they struck it down as unconstitutional? And apparently that section did have a severabilty clause, so…

    Of course I think part of the dissent was that the Court couldn’t re-write what Congress passed as a law…which is what they felt this did.(too tired to go back & read thru it all again tonight.)

    flicka47 (27596a)

  102. The 7-2 decision had nothing to do with the Commerce Clause. The 7-2 decision had to do with the expansion of Medicaid, and it basically decided that the Spending Clause doesn’t give Congress the Constitutional authority to use federal money to compel states to do things against their will.

    The Commerce Clause vote was 5-4, with Roberts siding with the four dissenting justices and not the liberals he joined in the majority when pretending that this abortion of a law was legal since Congress did have the authority to use their power to tax to achieve their policy objective even though they hadn’t done that.

    And, no, Roberts didn’t shine the light on anything. He provided cover for an illegal Congressional power grab. And violated the separation of powers in the bargain.

    Read the joint dissent; in one of my previous comments I’ve linked to where you can find the rulings, and the four dissenting justices take 10 pages (pages 142 – 152 of the pdf file) destroying the idea that this was anything other than what Congress called it. A penalty.

    They actually dispose of the contention that if you don’t make enough to pay taxes, you’re not subject to the penalty thus making this a tax quite handily. If you don’t make enough to pay taxes, you never were subject to the mandate. So the fact that mandate itself was means tested, and thus the penalty, doesn’t let Roberts call this penalty for not obeying the mandate a tax.

    I mean, hello! The whole point of ObamaCare is that it’s a wealth transfer scheme from beginning to end. Why would anyone expect that those who were supposed to get free insurance on someone else’s dime pay a penalty for receiving their insurance for free exactly as intended? Even in the twisted town of Obamaville that doesn’t make sense.

    Only those who have enough wealth that Obama can seize and transfer were supposed to be abused by the penalty. Not the people whose votes he was out to buy with OPM.

    All the arguments the Solicitor General made that this penalty could be construed as a tax if we squinted really hard and viewed it through a piece of hard rock candy were entirely frivolous. And Roberts in his majority opinion (a scant 2 paragraphs stretching from pages 44 – 46 of the pdf file) never deals with the substantive arguments the dissenters make because there was no argument he could make. So he pretends to dispose of those arguments by engaging a straw man of his own creation instead.

    Roberts’ decision is a farce. A lot of people are looking for silver linings that aren’t there, and pretending the majority opinion Roberts cooked up is something it’s not. Don’t get caught up in it.

    Steve57 (c441a6)

  103. From the tail end of Robert’s opinion, wouldn’t calling it a “constitutional violation” mean they struck it down as unconstitutional?

    You are of course correct, flicka47. When I said that the court didn’t rule the MediCaid expansion unconstitutional per se, I meant that it’s Constitutional as long as the states voluntarily expand their MediCaid programs. The Spending Clause doesn’t give Congress the authority to compel the states to expand this program against its will. I.e. withholding existing funds in order to force them to do so.

    By a 7-2 vote the SCOTUS decided that as written the PPACA incorporated an unconstitutional reading of the Spending Clause and struck down this portion of the law.

    As far as severability goes, the liberal judges Roberts sided with have always acted as if there’s a de facto severability clause in every bill passed by Congress. There’s no way Roberts could have written an opinion that struck down the entire law over the MediCaid expansion overreach and that opinion would have wound up as the majority one.

    Now, had he sided with the 4 dissenters the entire law would have been struck down due to the Commerce Clause overreach and the lack of a severability clause.

    Steve57 (c441a6)

  104. liontooth, you are wrong. The age and gender restriction comes from statute, not the Constitution.

    SPQR (26be8b)

  105. Obama threatened to run against the Court if they overturned ObamaCare … Roberts blinked and made up a justification not even argued before the court. His actions will be seen as damaging to the reputation of the Court and certainly Roberts forever.

    JeffC (faa0ee)

  106. just because something is called a tax doesn’t make it constitutional … every tax still has to pass constitutional muster … this sure looks like a direct tax to me …

    JeffC (faa0ee)

  107. As someone this doesn’t affect, not being an American, and being from a nation that has state provided health-care, I’m curious about a couple of things here.

    I can understand the arguments that the decision was potentially made in contravention of various clauses etc, but I’m struggling to understand the vehemence against the idea of state provided health care.

    Does the idea of little Joe Doe, whose folks are earning minimum wage with no health-care, not being able to get care for his asthma not strike at the ideals of equality that all Americans are supposed to have?

    So I’m curious, are people upset that at how the decision was made and justified or upset that the decision went a particular way or both even?

    On a side note, having got here through links from Ken at Popehat on this occasion and others previously, can I say good work on the Aaron W/Kimberlin issue. As a decidedly liberal Socialist, regardless of the political leanings of the 2 individuals involved here, I am glad to see people standing up for the rule of law and for individual rights.

    Andy (aa595c)

  108. 106. The dissenters took that very issue with Roberts’ handwaving.

    Another long-view assessment:

    http://www.realclearpolitics.com/articles/2012/06/28/the_chief_justices_gambit_114646.html

    Comparing Roberts with Marshall?

    gary gulrud (dd7d4e)

  109. 107. Some projects ‘for the good of all’ have been and some remain feasibly undertaken solely by Federal government. Analogies at the State and Local level could be made as well. See Lincoln, Abraham.

    Nonetheless, any project wherein the free market is supplanted by government cost rises, mediocrity and shortages of services abound.

    Take Canadian healthcare, please.

    gary gulrud (dd7d4e)

  110. 108- Republicans train of thought will not stay focused long enough to matter.
    Gary- Is Murrays Steakhouse still in Mpls?

    mg (44de53)

  111. I can understand the arguments that the decision was potentially made in contravention of various clauses etc, but I’m struggling to understand the vehemence against the idea of state provided health care.

    Well, first of all it’s not a matter of clauses or whatnot. It’s a matter of the basic law of the land. Congress writes the laws, the executive branch executes the laws, and the judiciary applies and interprets the laws.

    In this case Congress wrote the law wrong. The way the wrote it, it was unconstitutional. So the executive branch which was defending the law and the judiciary which was interpreting the law got their heads together and rewrote the law for Congress.

    What went before the Supreme Court was a law that imposed penalties on people under one section of the Constitution: Congress’ power to regulate commerce. The two branches which don’t write the laws came up with the brilliant idea of declaring the penalty a tax under a completely different section of the Constitution; Congress power to tax and spend.

    Look at it this way; had Congress written a law originally declaring this a tax then the Supreme Court couldn’t have taken the case in the first place, as legally they can only rule on a tax once it’s been imposed. And nothing goes into effect for a couple of years. The only reason the Supreme Court could even hear the case is because in plain language it was a penalty for an unlawful act; failing to maintain health care that provides a minimum level of coverage. (And just the fact there is a penalty means the act that is penalized (or inaction in this case) is unlawful. Even if there isn’t language declaring the act or inaction being penalized unlawful.)

    So it went into the Supreme Court a penalty. It only could go before the Supreme Court as a penalty, not a tax. It came out a tax. That’s a violation of the basic law of the land.

    As far as our vehemence against government provided health care, if you’ve ever traveled to the US and dealt with the TSA maybe you’d understand.

    That’s how our government does security. We do NOT want these same people doing health care.

    There are more practical reasons as well. The justification for ObamaCare basically amounts to the fact that the federal government has been mucking up health care for half a century. Each time they create a problem, the fix is a bigger program and the result is a bigger problem. So the next fix is even bigger, as is the problem. Wash, rinse, repeat. The problems snowball. So now, the final solution (literally, it will be for a lot of people) is supposed to be this monstrosity of a 2,700 page law that will result in tens of thousands more pages of administration from agencies unrelated to the delivery of health care, such as the Internal Revenue Service, while cutting costs through such imaginative measure as simply forcing doctors to work for less.

    Since we haven’t reintroduced slavery, we will end up with fewer people providing health care while more people will be “insured.” More people and more dollars chasing a shrinking inventory of services. Do they teach how that ends in socialist school? Can you say rationed care?

    Basically, the way to sum up this abortion is that, as planned, is a scheme to make lots of people pay for health insurance.

    What’s unplanned is how the f*^% they’re actually going to provide health care. That little detail is an afterthought.

    As I asked earlier, have you met our TSA?

    Does the idea of little Joe Doe, whose folks are earning minimum wage with no health-care, not being able to get care for his asthma not strike at the ideals of equality that all Americans are supposed to have?

    Then you’ve been listening to Obama’s numerous lies. Little Joe Doe can go get his care for free right now if his parents enroll him in a variety of government funded programs right now. We don’t need ObamaCare for that. Such as the State Child Health Improvement Program (SCHIP) or MediCaid. As we have 57 states (or so Obama thinks) there could be programs in the individual states I’m not aware of. Also University hospitals and teaching hospitals have programs that the truly needy can enroll in.

    Plus there are charitable hospitals that treat the indigent. At least, there are now. If Obama keeps attacking religious institutions because he hates competition (Obama is a jealous god, thou shalt have no other gods before him) there won’t be in the foreseeable future.

    But if you listen to Obama and his minions lie through their teeth, you’d think there’s no safety net at all at the moment. That all over the place the poor are being turned away from care to die in the mean streets of ‘Murica.

    Ain’t so at all. As a matter of fact, many of the people Obama used as props in his campaign to push for this abomination who supposedly were going to die of cancer or something because they had no insurance and needed ObamaCare like yesterday, were enrolled in programs providing care for their conditions at that very moment. They were frauds.

    You’d also think that orphans are starving in the streets unless the mean Rethuglicans get out of the way and let Obama feed the children.

    The reality is if the poor in this country are dying of anything it’s complications resulting from obesity.

    Nobody goes without health care who needs it. Anybody can show up at the emergency room and get care until their condition is stabilized. Which means, if they’re having heart attack, anything up to surgery. Cancer is a different story, but for them there are different programs.

    Just like nobody starves. There are isolated stories of malnutrition that you hear of. But that’s usually because some drug addict mom converts her public assistance into her next fix and forgets to feed her kids for a week or a month.

    It’s easy to do; just buy what you’re authorized to buy and resell it.

    With the Electronic Benefit Card (EBT) they usually don’t have to go to all that trouble. They can use it like an ATM card and go withdraw cash if they don’t have what they need down at the liquor store where they can use it like a credit card.

    Here’s a little ditty that will get you up to speed about just how convenient the EBT card is (explicit language warning):

    Chapter – It’s Free Swipe Yo EBT

    So I’m curious, are people upset that at how the decision was made and justified or upset that the decision went a particular way or both even?

    Comment by Andy — 6/29/2012 @ 2:17 am

    Both. Had Roberts not violated the Constitution in order to come up with some illegitimate grounds to declare this law Constitutional, he would have had to arrive at a different result.

    Steve57 (c441a6)

  112. 105. … Roberts blinked and made up a justification not even argued before the court.

    Comment by JeffC — 6/29/2012 @ 12:23 am

    It was argued before the court; Kennedy, Alito, Scalia, and Thomas made much of how weak the Solicitor General’s argument that it could be construed as tax was. They basically spent 10 pages ripping it to shreds and laughing at it.

    For instance, the Solicitor General would say something like, “the penalty is collected by the IRS, therefore it’s really a tax” (Roberts seemed to like that one). The dissenters would say something like, “we might be able to take that remotely seriously if we didn’t have a string of examples of actual penalties that really aren’t taxes also collected by the IRS.”

    Roberts went with the contention anyway despite it being feeble and pathetic because it was a life vest he could wrap his foreordained conclusion in to keep it from drowning in a sea of contrary facts.

    Steve57 (c441a6)

  113. John Podhoretz writes: “For those who loathe ObamaCare, for months the Supreme Court has loomed as the deus ex machina — the god who appeared at the end of an ancient Greek drama in a contraption rigged to descend from above to resolve all the action in an inarguably divine way. The high court would descend, declare the Affordable Care Act unconstitutional in whole or in part, and save the country from disaster.

    Well, it didn’t turn out that way, and it only goes to show once again that one should not look to false gods for salvation. That message may prove as true for liberals and President Obama as it did for conservatives yesterday.

    Boy, talk about a false god! Like many people who read yesterday’s decision, I will go to my grave unable to reconcile the plain fact that on page 15 Chief Justice John Roberts says the bill’s mandate to buy health insurance isn’t a tax — only to say on page 35 that it is a tax.

    In a beautiful turn of phrase, the four dissenting justices said Roberts’ contortion on this matter “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

    Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

    He did get the four liberal justices to agree to the first serious limit on the power the court has assigned to the Constitution’s Commerce Clause in 75 years. And he basically gutted the bill’s ability to force states to enlarge the size of the Medicaid entitlement.

    But the act stands, and this is the bitter pill conservatives have had to swallow. Liberals had their day in court and prevailed; the taste of victory must be sweet indeed.

    But Roberts had a not-so-veiled warning for them, too: “The court does not express any opinion on the wisdom of the Affordable Care Act. . . Under the Constitution, that judgment is reserved to the people.”

    And therein lies the danger for President Obama. For while it can be said “the people” acted when their representatives passed the law and the president signed it into law, “the people” have issued their judgment on ObamaCare both before and after its passage in ways that suggest the president’s victory may be Pyrrhic.

    Forget what gleeful pundits are saying about how the court’s ruling is a game changer that will suddenly make ObamaCare popular. The president hardly ever mentions this signature piece of legislation, and for good reason. Even yesterday, in welcoming the court’s decision, he spoke for a mere seven minutes, then hastened away.

    I’m not even talking about the polls, which have shown a consistent majority in opposition to expanding federal control of health care. This week, opponents outnumber supporters by 55-38 (ABC News) or 49-39 (Fox News) — dreadful numbers for legislation that has already passed and that one party is vowing to repeal.

    Forget the polls; consider instead the direct and inarguable political consequences of Obama’s advocacy of the bill and its passage…”

    Read more: http://www.nypost.com/p/news/opinion/opedcolumnists/it_on_to_november_6i8ftulV9H2tLrx4RojozO#ixzz1zBJDVrb7

    Colonel Haiku (82c536)

  114. > Didn’t SEVEN of the nine Justices just agree that the Commerce Clause use would have been unconstitutional

    No. The Ginsburg opinion’s section on the commerce clause is joined by three other justices. So four justices would have held the ACA constitutional under the commerce clause.

    aphrael (af01a5)

  115. > Are there any limits to Congress’ power in this regard? Do they simply have to make the tax linked to their income or excise tax power in some tenuous way and anything goes?

    Yesish. The Chief Justice’s opinion says there are such limits but declines to elaborate them because it’s not a question currently before the court.

    aphrael (af01a5)

  116. The Chief Justice’s opinion says there are such limits but declines to elaborate them because…

    …he wants us serfs to be able to maintain our illusions for the time being.

    Steve57 (c441a6)

  117. Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

    Maybe, Colonel, the Chief Justice was trying to signal the rest of America that Obama’s Chicago mob kidnapped his wife and kids as hostages to ensure he’d make the right decision. So he made the right decision but really, really badly as a coded cry for help.

    Steve57 (c441a6)

  118. What makes this a “tax”, as opposed to, say, a copyright “fine”?

    A copyright fine is a legal penalty. Congress can regulate activity, and in order to violate a copyright you actually have to do something.

    Under the Commerce Clause, the majority consensus of today’s court (combining Roberts with the 4 dissenters) decided Congress can’t penalize you for not participating in an activity that they can regulate. They have to wait until you do something.

    That, and nothing more than that, makes this a tax per CJRo.

    I just knew that picking an example of a fine for a positive action (copyright violation) would be used. But there are also fines for not doing something.

    How about this example: If you do not pay your taxes on time, you are fined or penalized. To my knowledge, no one calls this a tax even though it is a penalty for not doing something and it’s collected by the IRS. If that’s not a tax, what is actually different about the individual mandate which makes it a tax?

    QuadGMoto (3eb042)

  119. 110. Since 1946. Haven’t had the pleasure missus is vegetarian mostly. Seafood when I’m lucky.

    As Erickson argued, Roberts tossed the dead raccoon back in GOP’s lap.

    I believe the 52%ers have been fingered once again as well.

    Orange y’all glad Willard’s the torch bearer cap’n?

    gary gulrud (dd7d4e)

  120. UPDATE: This discussion is a bit oversimplified. I explore more of the nuances here.

    Patterico (907c85)

  121. Here’s the text of what I write at that page:

    John Hinderaker is OK with Roberts’s opinion because he says it looks behind the label put on the mandate’s penalty to determine whether it actually functions as a tax or a penalty. I happen to think the dissent has the better argument on how it functions, but explaining why goes beyond the scope of my point in the main post. Mainly, I want to acknowledge that the label is not necessarily the be-all and end-all, but when Congress passes something that (based on the statute’s plain meaning) looks like a duck, walks like a duck, and quacks like a duck, and they also repeatedly call it a duck, then textualism says it’s a duck.

    Even if every Congressman secretly thinks of it as a swan, if the words show it’s a duck, it’s a duck.

    Now, they could pass something that is blatantly a tax increase on the wealthy and/or middle class, and simply slap a dishonest “penalty” label on it to avoid accountability. (Indeed, after yesterday they are far more likely to do that.) I don’t think a textualist would be required to accept such a tax as a penalty, and I do not intend to suggest that. What I do suggest is that a textualist would secure what it actually is based on the words of the statute and not based on some guessed-at legislative intent. That is the proper analysis if one wishes to maintain fealty to the rule of law.

    Patterico (907c85)

  122. _________________________________________________

    Even yesterday, in welcoming the court’s decision, he spoke for a mere seven minutes,

    And even more succinctly, he twittered:

    Still a BFD.”

    If the US is a nation in decline, then it sure as hell inserted the appropriate figurehead into its presidency. The symbolism of 1600 Pennsylvania Avenue once reflected a somewhat dignified, bigger-than-life quality, but it now exudes just the opposite, more of a bad-reality-TV-show, no-”BFD” dynamic.

    Mark (90205b)

  123. I know obsceni…er, the Rule of Man when I see it.

    Ed from SFV (68921e)

  124. Yesish. The Chief Justice’s opinion says there are such limits but declines to elaborate them

    How comforting.

    I’m sure they will always say how there are limits as they act as though there really aren’t any.

    Does anyone think that the framers would have thought this federal program is constitutional?

    Dustin (330eed)

  125. I asked about this on the previous thread, because as a non-lawyer it looked like Roberts in effect said, “Look, under the arguments you presented to the court under the commerce clause, this doesn’t fly. But if want to be honest and not politically deceitful, and call it a tax, then it is within what the Congress can do”. from there, he could have said, “So go back and rewrite it honestly”, or he could have said, “So, since you can accomplish what you want to accomplish if you’re honest about calling it a tax, I’ll call it a tax for you and let it go.”

    Nonlawyer that I am, I thought it was up to the judge to decide on the merits of what the lawyers reasoned, not reason for them, and asked about this on the previous thread. nk answered:

    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”.
    Comment by nk — 6/28/2012 @ 5:30 pm
    and
    420.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.
    Comment by nk — 6/28/2012 @ 6:41 pm

    So I guess the question is how far should a justice go to “construe a law in a manner which makes it constitutional”.

    I don’t know, but it seems like what Roberts did was unexpected and worthy of challenging, it is not an obvious “this has never been done before”.

    As I’ve said before, predicting with reason does not work when it comes to Obama and thinks surrounding him, but “It ain’t over till it’s over”.

    MD in Philly (3d3f72)

  126. what we’ve learned is that congress can make you dance like a monkey and the robed whores won’t lift a finger to stop them Mr. MD

    it’s pretty much over

    happyfeet (3c92a1)

  127. I thought it was up to the judge to decide on the merits of what the lawyers reasoned, not reason for them

    It goes both ways. Judges aren’t responsible for making either side’s case for them, but on the other hand, if they know what the law is and the facts are, they shouldn’t rule incorrectly just because someone failed to present the correct case.

    Roberts’s opinion is that the law can be interpreted in a way that makes it constitutional, and thus it is improper for him to not interpret it that way. This canon makes sense, but I disagree that the law can really be interpreted as a tax, based on what’s actually written. They considered the tax justification and specifically wrote the bill in a different way, and I think that shows.

    But it doesn’t matter. It really doesn’t matter now. This disaster is now the Constitution. That’s what it means when the Court rules. We will be living with this awful precedent. Our kids will lose freedom because of it. And that’s done. With the very narrow ideological margin on the Court and the endless march left, this won’t be undone. Every bill and case bringing these issues up will rely on this powerful precedent for interpreting things into taxes to preserve the seemingly unlimited power of the federal government to force people to do what nannies think best.

    And lost in this discussion is that we are racing towards the cliff and can’t afford this crap. There are too many fronts that don’t seem likely to be fixed, and I think the safest and most feasible solution really is for the USA to break up into two countries, peacefully, where one country can have balanced budgets and personal responsibility and freedom, with the possibility for individual mistakes and consequences, and the other with no hesitation to spend, token freedoms, and unnatural control of choice to eliminate personal mistakes (ultimately leading to bad consequences for everyone).

    These two countries would be more peaceful side by side, with both visions realized, than they are today where everyone is frustrated.

    Dustin (330eed)

  128. MD in Philly,

    “Look, under the arguments you presented to the court under the commerce clause, this doesn’t fly. But if want to be honest and not politically deceitful, and call it a tax, then it is within what the Congress can do”. from there, he could have said, “So go back and rewrite it honestly”, or he could have said, “So, since you can accomplish what you want to accomplish if you’re honest about calling it a tax, I’ll call it a tax for you and let it go.”

    Newt Gingrich has an interesting perspective on this in an interview with Newsmax:

    http://www.newsmax.com/Newsfront/gingrich-repeal-healthcare-obama/2012/06/28/id/443843?s=al&promo_code=F53E-1

    Newsmax, quoting Gingrich:


    Gingrich said that Chief Justice John Roberts’ reason for siding with the liberals on the bench was “the worst possible grounds for Obama.”

    “I’m very surprised that he came down like this. I had not contemplated the tax solution because Obama had been so adamant that it was not a tax.

    “This ruling could go down as a major mistake by Roberts or as an extraordinarily clever move and we won’t know for a long time which it is. He clearly has upheld the law, which must make Obama and his supporters happy, but on the other hand, he’s upheld the law on the worst possible grounds for them.”

    Gingrich said Roberts had “placed before the country a firm, clear choice. If you want the largest tax increase in history, keep Obamacare. If you want to repeal the largest tax increase in history, repeal Obamacare.

    Major mistake, or clever move? I’m siding with the major mistake; but it is intriguing to think what an extraordinary opportunity this has opened up for the election. Let’s hope the Tea Party and other conservatives don’t blow it.

    Brandon (d777af)

  129. Mr. Dustin the power to tax is the power to destroy

    and our pervert chief justice has now decreed that our coward whore congress can tax freedom itself

    happyfeet (3c92a1)

  130. roberts just gave obama a site on Mnt. Rushmore.

    mg (44de53)

  131. Roberts choked. He is a compassionate conservative, not a conservative, like his president, George W. They are self-loathers and collapse under the scorn of the elites.

    I hope we have seen the last of this horrid political hybrid: the face of a conservative and the heart of a leftist. Roberts may have unwittingly so further polarized us that he has assured its destruction.

    Patricia (e1d89d)

  132. 107 — not interested in some of the particular sequelae of single-payer, if that’s where we’re headed, e.g. global budgeting, inevitable politicization of funding for research. Also the steroid-meth-crack cocktail this will represent for our busybody Public Health establishment. At the present time if your neighbor objects to your risk factors (obesity, drinking, smoking, rock climbing, you name it) you may politely inform him where to get bent — since it’s quite literally none of his business. Put us all in the same pool, and that argument changes. No interconnection between human beings has ever been too attenuated for modern liberals to use in claiming rationales for controlling behavior.

    DrSteve (7f3705)

  133. Another thing to ponder is what lesson Romney will learn from this decision. If he’s truly being schooled in conservatism, this would be perhaps his biggest lesson. The days of conservatives having to make compromises with RINOs is over. Now it’s the RINOs who are going to have to listen to the conservatives if they want things done; if they want to stay in office, etc….. The Tea Party hasn’t been around for long, and it’s not going to go away any time soon.

    If Romney wins and he gets two terms, he’ll likely face one or more SCOTUS appointments. Let’s hope he’s studying this issue and considering the consequences of not learning from it.

    Brandon (d777af)

  134. Dustin, I agree that the two countries make sense, if federalism as now determined will not allow individual states to make these distinctions.
    Brandon, your quote of Gingrich is akin to what I’ve heard others say, that Roberts gave them the pass, but accompanied with a poison pill that may destroy them.

    Of course, if the MSM would report that ObamaCare passed because it was ruled to be a tax in spite of all of Obama’s and the dems lieing about it, then the poison make quickly take effect. If the MSM says that SCOTUS bowed before the wisdom of the one, then the poison may not work so well.

    Hewitt (FWIW) raised the question whether this was like marbury vs. madison, where jefferson thought he had won, but in the end he didn’t. I don’t know these things.

    MD in Philly (3d3f72)

  135. I hope Scalia is taking into consideration how words have changed meaning over the years. “Regulate” is an example I’ve used before: Originally it meant to work to increase, now it means to curtail.

    Phillep Harding (1b8b26)

  136. Mr. Dustin the power to tax is the power to destroy
    and our pervert chief justice has now decreed that our coward whore congress can tax freedom itself
    Comment by happyfeet — 6/29/2012 @ 8:15 am

    – And there ^^^ is your thread winner!

    Icy (11b47c)

  137. roberts just gave obama a site on Mnt. Rushmore.
    Comment by mg — 6/29/2012 @ 8:19 am

    – Gonna be costly . . . all of that extra rock they’ll have to import, just for the ears (not to mention the halo).

    Icy (11b47c)

  138. our coward whore congress can tax freedom itself

    Comment by happyfeet — 6/29/2012 @ 8:15 am

    True. That’s exactly right. It’s a tax on personal choices.

    The Court said in Roe v Wade that medical choices were private. It was transparent that this was an ad hoc BS justification just to arrive at the ‘correct’ result, constitution be damned, and for all the attempts to make Roberts into a supermaster genius for his decision yesterday, I believe that it’s just another ad hoc BS justification for an immediate ‘correct’ result.

    Dustin (330eed)

  139. ____________________________________________

    He is a compassionate conservative, not a conservative, like his president, George W.

    The phrase (or paraphrase) that then comes to mind is “but some of my best friends are liberal.” And I don’t say that to poke fun, or be sarcastic, but based on the simple reality of, as one example, the owner of this very blog mentioning in the past that his wife is a liberal/Democrat. From that, one person influences the other, and regrettably there’s an underlying belief among far too many people of all political stripes that big-heartedness is a saving grace. IOW, an unconscious desire to give more benefit of the doubt to liberals (or liberalism) than they deserve.

    That’s why I’ve often posted assessments or surveys of human behavior that reveal liberals tend to be just the opposite of what they fancy themselves as being all about. That, in actuality, they’re closer to the stereotype they have of their political opposites.

    Mark (90205b)

  140. Why didn’t you guys get all up at arms against passing laws requiring auto insurance? Should that not also be unconstitutional in your view? If not, why not? It makes no sense to me.

    If someone has a wreck and is uninsured, we pay the bill (if not collectively, at least individually). If someone goes to the ER and has no insurance, we get stuck with the bill just the same.

    Tillman (05bc17)

  141. Why didn’t you guys get all up at arms against passing laws requiring auto insurance?

    LOL. Choosing to operate a car on the public roads is quite a bit different from just being alive in America.

    Dustin (330eed)

  142. If someone goes to the ER and has no insurance, we get stuck with the bill just the same.

    And that’s still the case with Obamacare. Any illegal alien can still get free health care.

    Any loser can still refuse to pay their debts, no matter where they come from.

    You’re acting like Obamacare didn’t make this problem far worse. It increases the demand on health care, especially non emergency stuff, and does nothing to increase the supply of care (in fact, I think it will reduce the supply as well as increase the demand).

    But if you’re mad that we have this extremely limited safety net of not refusing care at ERs, just outlaw that safety net, OK?

    Personally, I think it’s OK to have this ultra limited safety net, Texas style, where they don’t give out drugs to ER patients, without pretending this justifies an enormous and expensive program in a country that is completely underwater with debt. But that’s just me. I know lefties like to spend money.

    Dustin (330eed)

  143. Like people are going to give up driving. LOL

    Tillman (05bc17)

  144. _____________________________________________

    Major mistake, or clever move? I’m siding with the major mistake; but it is intriguing to think what an extraordinary opportunity this has opened up for the election.

    Since most people do have health insurance, they won’t have to worry as much, or at all, about dealing with their tax forms when the IRS starts demanding the filer show proof of insurance. So the idiocy of Obamacare will remain somewhat of an intangible (or hypothetical) to such voters, even more so since the ramped-up bureaucracy (and particularly IRS) to accommodate Obamacare won’t happen (should it happen) until after 2012. So the dynamics of an overly large percentage of Americans being truly mindless — being “sheeple” — this November (or sort of a variation of Britain’s Tory Prime Minister recently wanting to ooze all over and hug Obama) cannot be discounted.

    Lazy liberalism and various forms of feckless socialism have become pervasive in the industrialized world, certainly throughout Europe, is pretty much a given in the Third World, and is a weird hybrid in the Middle East (or societies like the PRC/China). IOW, the foolish traits that make many people fall for liberal utopia-ism can never be underestimated.

    Mark (90205b)

  145. Like people are going to give up driving. LOL

    Comment by Tillman

    This is not a response that shows any understanding of the issue.

    The federal government shouldn’t be able to penalize personal freedom just because of nanny intentions. However, states regulating the public roads owned by the public is pretty reasonable.

    Finding one bad consequence of a government program, free riding ER usage, is not a justification for a huge program that doesn’t even solve the bad consequence.

    http://i.imgur.com/J0Z5D.gif

    Dustin (330eed)

  146. Interesting textualism question here:

    I was at the zoo, looking at this animal – big ferocious-looking sucker, long tail, black and orange stripes, big teeth, big paws, over next to the lion cage.

    I was looking at a duck.

    Question: What does the textualist say I was looking at?

    Leviticus (e923df)

  147. ____________________________________________

    Why didn’t you guys get all up at arms against passing laws requiring auto insurance?

    That’s because the use of an automobile just about always occurs in public, out on public roadways, and the point of requiring that a driver carry insurance focuses solely on the importance of financially protecting another person who is hit by the driver, or someone else’s property (or auto) that is damaged by the driver. IOW, a driver cannot meet the requirements of insurance coverage if he or she has a policy that only provides for harm done to himself or his own property.

    Obamacare comes far closer to the nonsense of nanny-state big-heartedness, similar to laws in New York City that forbid restaurants from using trans fats. Or, closer to where I live, a new regulation in California, which goes into effect in the next few days, that bans restaurants from serving duck liver, otherwise known as fois gras. Because it’s for the sake of the children! For the sake of the little animals! For the sake of Mother Earth!!

    Mark (90205b)

  148. But Dustin, having a wreck, more often than not, is not a public issue, but a private one. The accident usually is with another individual rather than with public property (well, at least since they’ve outlawed Quaaludes at any rate). Also, most of us can’t very well be employed without driving. So it may not be a right per se, but I would argue that to be alive and not be on welfare, typically you must drive. So to that extent, driving is not a luxury, but a necessity. Hair-splitting over the rest is dodging the issue.

    Tillman (05bc17)

  149. I said “Dustin,” but I should have said “Mark” above. :-P

    Tillman (05bc17)

  150. I’m not yet sure where I come down on the textualism question, by the way. My comments re: textualism yesterday were all objections to the idea that Obama’s descriptions of the mandate or Congress’ descriptions of the mandate should have any bearing at all on a textualist’s reading of the actual legislation.

    I’m not yet sure where I stand on the other (interesting) question – the question of what a textualist would do with a text that described one thing and called it another.

    Leviticus (e923df)

  151. 128. “Tea Party and other conservatives don’t blow it.”

    Named will certainly be showing at the polls to vote, in particular, for Congressional offices.

    With regard to POTUS, you made your bed.

    gary gulrud (dd7d4e)

  152. I just knew that picking an example of a fine for a positive action (copyright violation) would be used. But there are also fines for not doing something.

    How about this example: If you do not pay your taxes on time, you are fined or penalized. To my knowledge, no one calls this a tax even though it is a penalty for not doing something and it’s collected by the IRS. If that’s not a tax, what is actually different about the individual mandate which makes it a tax?

    Comment by QuadGMoto — 6/29/2012 @ 6:08 am

    Umm, Earth to QuadGMoto. When you get fined for failing to pay your taxes, you aren’t getting fined for “inactivity.”

    You’re taxed on activity. Economic Activity. You’re getting fined for having engaged in taxable activities and then not paying ontime.

    Here are a couple of other fines for “inactivity” that are really fines on an activity that ends up with a payment owed to the government with a due date:

    Getting fined for failing to pay a red light camera ticket on time.

    Getting fined for not returning a library book on time.

    Getting fined for failing to pay a parking ticket on time.

    I like your initiative, but I think you’ve chosen some poor examples.

    But to answer your question, the only thing that makes this ObamaCare penalty a tax and not a penalty is that’s the only way Roberts could bend over for the liberals and give them a verdict they’d like.

    Steve57 (c441a6)

  153. Comment by Tillman — 6/29/2012 @ 8:58 am
    Why didn’t you guys get all up at arms against passing laws requiring auto insurance? Should that not also be unconstitutional in your view? If not, why not? It makes no sense to me.
    – Uh, “you guys”, Mr. Tillman? Okay, let’s make this quick; us guys don’t want you to be late for your next class:
    1) There is NO federal law mandating the purchase of auto insurance.
    2) You are not required to purchase auto insurance under ANY state law unless you actually own an auto.
    3) There is NO law, state or federal, that requires you to own an auto; you are free to walk, ride a bike, catch a cab, ride with friends or use public transportation to get around — it’s your choice.
    When it comes to breathing, however, God (or nature) has left you with NO choice. You must breathe to live, and yesterday’s decision has now cleared the way for the federal government to say “either you buy health insurance or else we are going to tax you for breathing”.

    If someone has a wreck and is uninsured, we pay the bill (if not collectively, at least individually). If someone goes to the ER and has no insurance, we get stuck with the bill just the same.
    – In reality, believe it or not, that “someone” actually receives the bill, and is subject to collections and wage garnishment if they do not pay it. Now, does the government pick up the tab in the meantime? Probably.
    What is the risk factor for needing to visit the ER versus being involved in an auto accident? Is it 1,000? 5,000? 10,000 times more likely that you will be involved in an auto accident that requires an insurance claim, as opposed to making a non auto accident related ER visit? (remembering, of course, that in the case of an injury auto accident it is the auto insurance of one or both drivers that covers the ER visit, not health insurance)

    Icy (11b47c)

  154. @107 – Andy,


    I can understand the arguments that the decision was potentially made in contravention of various clauses etc, but I’m struggling to understand the vehemence against the idea of state provided health care.

    I’m no expert, but here’s my views:

    The USA already has state provided health care. It’s called Medicare, and the states have their own form of state provided health care, which is usually subsidized with Medicare.

    Medicare is available to the disabled and the elderly, and some of the states provide other healthcare options for poor people without coverage. There’s also other state and county options.

    So that’s not the issue.

    While some are even opposed to the whole idea of state provided health care, most people object to the idea that the state can force a citizen to purchase something from a private company and penalize them for not doing so.

    The majority of liberals in our country believe that the solution to the problem of healthcare is with massive increases in taxes and government (bureaucratic) oversight in the dispensation of healthcare coverage. But politicians are very cautious with creating any perception that they are going to massively increase taxes. So people like Obama lie and call the tax something else.

    Now such government healthcare programs might work in lesser populated countries that have a high living standard, but they won’t work in America just by the type of government that is in place. When we give our government too much power it tends to tread on the liberties that most Americans have cherished for over 200 years. America is the second most populous democracy in the world. But it isn’t a pure democracy. It is a Republican constitutional democracy with a peculiar type of “American exceptionalism.” As such, the highest ideal is the rights of the individual to life, liberty, pursuit of happiness (nothing beyond that) – even to such an extent that those rights are above the authority of the government. The government has very limited power, and that power is balanced between 3 separate but equal branches. It is such in order to prevent the sort of mob rule that was common in democracies prior to the American republic – well, at least in the understanding of the founders. Limited power also implies limited government as far as size and scope, and healthcare ideally should be out of the scope of the government’s responsibility – it is not a right guaranteed by the constitution. Medicare was an exception (well, not really an exception, as it isn’t a right – but a “benefit”) because it provided for people who were either retired or disabled and either were no longer working or could no longer work.

    It’s not that conservatives are not concerned that poor people don’t have insurance. It’s that conservatives believe there are other ways of finding solutions that do not massively tax the populous, and do not necessarily involve the government.

    There are ways of incentivizing a system such that those who profit in healthcare and other areas are encouraged, but not required to provide services to the less fortunate. That’s always been the way things have worked in this country where more people, including the poor have benefitted.

    But there’s a worldwide movement now that liberals for the most part have bought into, and that’s that corporations are evil, and the rich do not pay their fare share. If corporations are evil, then the system that makes them evil, capitalism is the source of that evil; yet capitalism is the basis for our economy, where the richest 1%, btw, pay a huge chunk of taxes. We could not sustain the government programs these liberals want to implement without the cooperation of capitalism and the contributions of the very rich. They don’t understand this. They also don’t understand that corporations can be incentivized without force or taxation to help relieve the cost of providing health services to the poor. There are proven ways of doing that.

    When the left gets involved, people suffer more than are helped. When people become dependent on the government, it’s usually a one-way street. They can never get out of that dependence. Obamacare provides further opportunities for dependence; whereby people will not need to seek work because they can both collect welfare and have their healthcare needs met at a significant cost to those who work. Not everybody abuses the system like that, but there are enough that do to the extent of overtaxing the system.

    Another issue that conservatives and many others object to is the fact that there’s a huge federal deficit and now’s not the time to be considering huge new government bureaucracies. Obama and the liberals call these things “investments,” but in actual fact, they are simply deficit increases. There’s no long-term financial benefit to this program whatsoever. Poor people will still be dependent, and many of them will be without insurance simply because the government will not be able to track them all, and a large number of poor people have mental health issues. As such, many have cognitive deficits such that they do not know that they can seek out health insurance; or even that they need to.

    The notion that everybody is going to be able to afford health insurance now that we have this great new government program is simply wishful thinking; and it scores brownie points for liberal politicians. While many people will certainly benefit in the short run; the program will not be a long-term solution to the millions who currently do not have coverage, and it will become bankrupt the more people choose to pay the penalty rather than insure themselves. That’s likely to happen, given that the penalty (tax) is lower than the cost of the coverage. The government hasn’t assessed the issue of people not wanting insurance, and the percentage of the estimated 30 million who don’t have it and don’t want it.

    Brandon (d777af)

  155. 150. I’m thinking Roberts is a functional textualist most days, but like nk said he’s god of his court all 7.

    This was not liberalism of any notional sort, rather throwing the dice out of sight.

    gary gulrud (dd7d4e)

  156. ==Why didn’t you guys get all up at arms against passing laws requiring auto insurance? Should that not also be unconstitutional in your view? If not, why not? It makes no sense to me.==

    I doubt that you really want to learn, but—The “auto insurance” that many jurisdictions require in order to be legally licensed to drive is liability insurance. It is not mandatory for all who live and breathe-such as non-drivers. The IRS is not involved and there is zero ability to enforce it as a good friend found out recently when he was rear-ended on a highway by an undocumented/unlicensed/uninsured driver who along with a passenger fled the scene before police arrived.

    Our president once proved that he did not understand the difference between liability insurance and collision/comprehensive car insurance–and obviously you do not either, Tillman. The car insurance “comparison” is quite meaningless as applied to the health insurance debate and discussions of “constitutionality.

    elissa (c72fd8)

  157. ______________________________________________

    But Dustin, having a wreck, more often than not, is not a public issue, but a private one.

    But, again, auto accidents just about always happen in a public location or on a public thoroughfare, and the use of just about any car depends on public (repeat: PUBLIC) roads and highways. IOW, there is plenty of the whole community involved in such transportation matters. But if you’re using the concept of privacy or that which is private to somehow bolster the claim that the government can also stick its big fat nose into private issues, then I’ll raise the issue of a woman and abortion.

    How many of the biggest fans of Obamacare (ie, just about all of them of the left) are, on the other hand, very, very resentful of the government telling women anything — ANYTHING! — about a medical procedure they might be interested in pursuing? And I mean anything, period, when the super blue-state of California (meaning both its legislature and voters) doesn’t want even the parent or guardian of a single, underaged girl to be notified, much less required to give, permission to that girl if she wants an abortion.

    I won’t even mention that the controversy of the state’s interest in dealing with the topic of abortion does involve a third-party, meaning the nascent life of the fetus in the womb.

    Mark (90205b)

  158. Whether it is called a “penalty”, or a “fee”, or simply a “tax”; and extraction of money from The People used to support The Government, is a TAX.
    “That which you tax you get less of, that which you subsidize, you encourage.”

    Penalties and fees discourage the behavior that leads to them, as do taxes.
    The greatest subsidy, in the interests of Freedom & Liberty, is for the government to do nothing.
    That which succeeds will thrive leading to increased prosperity; that which does not succeed with whither and disappear (some more of that “creative destruction”).

    The Government that governs Best, governs Least!”

    AD-RtR/OS! (b8ab92)

  159. having a wreck, more often than not, is not a public issue, but a private one.
    Comment by Tillman — 6/29/2012 @ 9:33 am

    – Yeah, well, it’s one thing if the guy behind you taps your bumper, and you get out and agree to “no harm, no foul”; but:
    Most wrecks, more often than not, take place on public roadways. Most wrecks, more often than not, involve either one or both participants violating a traffic law. Most wrecks, more often than not, require the presence of public safety personnel (police, fire, public works) to ensure a smooth clearing of the scene without any further damage.

    Icy (11b47c)

  160. Like people are going to give up driving. LOL

    Comment by Tillman — 6/29/2012 @ 9:02 am

    Point is, they can, if they so decide. How would you feel if the government told you you had to drive, or be “taxed”.

    thomas (1fdeca)

  161. “Whether it is called a “penalty”, or a “fee”, or simply a “tax”; and extraction of money from The People used to support The Government, is a TAX.”

    - AD-RtR/OS!

    I think Roberts might agree with you on that one.

    Leviticus (e923df)

  162. Krautscheisster:

    http://www.nydailynews.com/opinion/roberts-saved-obamacare-article-1.1104128

    “That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that.”

    156. “I love mandates”, Willard. And then he proceeded to the auto insurance analogy.

    gary gulrud (dd7d4e)

  163. My Bad….

    “Whether it is called a “penalty”, or a “fee”, or simply a “tax”; any extraction of money from The People used to support The Government, is a TAX.”

    AD-RtR/OS! (b8ab92)

  164. 88% of us drive. To trumpet the 12% as some sort of proof that we do not need to drive is unreasonable, to put it mildly.

    Tillman (05bc17)

  165. Interesting textualism question here:
    I was at the zoo, looking at this animal – big ferocious-looking sucker, long tail, black and orange stripes, big teeth, big paws, over next to the lion cage.
    I was looking at a duck.
    Question: What does the textualist say I was looking at?
    Comment by Leviticus — 6/29/2012 @ 9:32 am

    – The way I see it, Congress said “this is a tiger”, and it was John Roberts that said “could be a duck”. By definition, the textualist only looks at what is in the text, and disregards the opinion of a non-textualist as irrelevant.

    Now, if you saw something in the law, as written, that you think is so ambiguous it could legitimately be seen as open to interpretation in the manner of “it doesn’t say ‘tax’ but it could be” I would sure like to know what it is.

    “Could be meat, could be cake…. It looks like… meatcake!”
    – George Carlin

    Icy (11b47c)

  166. Stipulate that my zoo-account at 146 is a written account, by the way.

    Leviticus (e923df)

  167. 88% of us drive. To trumpet the 12% as some sort of proof that we do not need to drive is unreasonable, to put it mildly.
    Comment by Tillman — 6/29/2012 @ 10:17 am

    – Perhaps any and every activity engaged in by 50% or more of the population of this nation should automatically be subject to federal government taxation & regulation.

    Perhaps not.

    Icy (11b47c)

  168. 144. Since most people do have health insurance, they won’t have to worry as much, or at all, about dealing with their tax forms when the IRS starts demanding the filer show proof of insurance.

    Comment by Mark — 6/29/2012 @ 9:11 am

    Don’t you bet on it, Mark. This is a complicated law. Which is sort of a reading from the Book of Obvious since it’s 2,700 pages long.

    But to avoid the penalty, you have to maintain the minimum required coverage. You, the income tax filer. So, if you get coverage through your work, and your employer or the insurance company makes any sort of change to your policy during the tax year that causes it to fail to meet the minimum coverage you’re required to have, you the tax filer are liable for the fine.

    I predict that in the future the government-run exchanges will make mid-year changes to policies causing millions of people to be liable for fines.

    Far fetched? Remember the reports about how people would call the IRS for tax advice, file based upon that advice, then get audited and fined (or just penalized) for following the advice? Yeah, like that.

    Here are a couple of other recent headlines that should give everyone pause:

    Navistar fined by EPA over technology the agency helped develop

    Essentially commercial truck and engine builder Navistar signed an agreement to use EPA-developed technology instead of proven technology to meet future emissions requirements. The EPA technology doesn’t work. So EPA is fining Navistar for using it.

    A Fine for Not Using a Biofuel That Doesn’t Exist

    The EPA predicted a particular biofuel then in the experimental stage would become commercially viable by a certain time. So they mandated refineries use specific amounts after that date. It hasn’t worked out, but the fines proceed apace.

    ObamaCare is properly called ObamaFinaPaLooza. In the Middle Ages there was this concept of “tax farming,” in which the local lord caught wind of someone with a pile of coins he’d go raid into it.

    We have 2,700 pages of arbitrary, capricious tax farming regulations that have just been declared Constitutional by CJRo staring down both barrels at us now.

    In return we’ll get, maybe, prison-grade health care.

    But don’t imagine just because your employer provides health care or (more likely in the near future) you got yours through a government exchange you won’t have anything to worry about.

    I won’t go into the circumstances, as they don’t matter, but I remember the response I got from some low-level bureaucrat when I was able to prove all my paperwork was in order and the error (a very important one) was all their fault.

    He looked at me and said, “you’re right, we f***ed up. Now you have a problem.” Then closed his service window and went home for the day.

    That, in a nutshell, will be ObamaTaxaFinaPalooza.

    Steve57 (c441a6)

  169. Icy, you don’t get it. The point is, in some instances we’re already required by the government to pay for insurance. So requiring health care insurance is really nothing new.

    Tillman (05bc17)

  170. If we didn’t have cars, Tillman would say it’s not like we’re going to quit our jobs just because they are taxed. It’s not like we’re going to go homeless because property is taxed. It’s not like we’re going to starve ourselves just because sales are taxed.

    etc etc.

    You live in America? Then you are a subject now. Not a citizen. That’s apparently Tillman’s view.

    Just living here is enough for government to push you into commerce you didn’t want. Your only way out is to leave the country or die. And this excessive control is designed very poorly and will make our country worse.

    Dustin (330eed)

  171. I was at the zoo, looking at this animal – big ferocious-looking sucker, long tail, black and orange stripes, big teeth, big paws, over next to the lion cage.
    I was looking at a duck.
    Question: What does the textualist say I was looking at?

    Comment by Leviticus — 6/29/2012 @ 9:32 am

    A tiger that promised to kill you unless you called it a duck.

    Listening to Rush, he brings up the point that early on in the arguments before the SCOTUS the question as to whether it was a tax was raised, as there is some precednt that you can’t challenge a tax until it is collected- so, if it was to be considered a tax, the case should have been rejected. So, how can he make a decision that in effect says the case shouldn’t have been heard at all? I guess maybe because it is only one vote-

    has there ever been an argument that a supreme court (or any court) ruling needs to be on an agreed principle? If 4 justices all agree “A”, but 5 judges disagree, each on a different reason which is mutually exclusive of the others, it seems the court is really 4:1:1:1:1:1.

    In this case it’s 4:4:1. If 5 can’t agree on a reason to oppose the other 4, it does seem like someone is just hand-waving”.

    MD in Philly (3d3f72)

  172. _____________________________________________

    Far fetched? Remember the reports about how people would call the IRS for tax advice, file based upon that advice, then get audited and fined (or just penalized) for following the advice?

    Beyond crap just like that, those examples you cite of the EPA and businesses caught in the middle would make for a perfect Rorschach test to determine the sanity and basic common sense of people based on their political leanings. While I think (or hope) most observers, regardless of their ideology, would find such situations absurd and even appalling, I have a hunch that far more of those on the left will certainly be less bothered by the Catch-22 created by left-leaning governments, or, worse of all, would rationalize away such predicaments.

    We do live in such stupid times, and the fact that socio-political liberalism also happens to be quite pervasive right now isn’t purely coincidental.

    Mark (90205b)

  173. Why is it that the trolls just trot out the same nonsense over and over? State insurance mandates, State, require liability coverage for potential 3rd Parties that might be damaged or injured. Health insurance mandates are from the Federal govt and require 1st party coverage. Now, if auto coverage covered preventative care, new tires, mechanical, gasoline, and oil changes, then they might be a little closer. Until such point, it is a purely BS issue used to try to distract.

    JD (ad6f40)

  174. Oh Tillman, tyke needs help over on the Holder thread. Be a dear, mOk?

    gary gulrud (dd7d4e)

  175. Tillman, it is little short of astonishing that you would flog that long discredited argument. One that shows your ignorance not merely of the distinction of voluntary acts but also of our basic constitutional system

    Another example of the failure of modern education.

    SPQR (f068a5)

  176. “Why is it that the trolls just trot out the same nonsense over and over? State insurance mandates, State, require liability coverage for potential 3rd Parties that might be damaged or injured. Health insurance mandates are from the Federal govt and require 1st party coverage. Now, if auto coverage covered preventative care, new tires, mechanical, gasoline, and oil changes, then they might be a little closer. Until such point, it is a purely BS issue used to try to distract.”

    You’re absolutely correct. Auto insurance is liability insurance. It’s similar to malpractice insurance. I don’t have to pay malpractice insurance, because I am not a doctor.

    I am a human being though, so in effect, Obamacare is requiring us to have insurance for being human. Where are the animal rights activists when you need them?

    Brandon (d777af)

  177. Dustin, I’m not saying that it’s all good, but yes, we live in a social contract.

    Tillman (05bc17)

  178. SPQR, no need for personal attacks.

    Tillman (05bc17)

  179. “Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). That payment,which the Act describes as a “penalty,” is calculated as a percentage of household income, subject to a floor based ona specified dollar amount and a ceiling based on the average annual premium the individual would have to pay for qualifying private health insurance. §5000A(c). In 2016, for example, the penalty will be 2.5 percent of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization). Ibid.; 42 U. S. C. §18022. The Act provides that the penalty will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties, such as the penalty for claiming too large an income tax refund.”

    - Chief Justice John Roberts, describing provisions of §5000A of the ACA

    He seems to be arguing that the payment, described as a penalty, is calculated like a tax and collected like a tax, paid to the organization that collects taxes along with the rest of an individual’s taxes. He later states that “the only consequence [for flouting the mandate] is that [an individual] must make an additional payment to the IRS when he pays his taxes. See §5000A(b).”

    Roberts, stating why the mandate might be viewed as a tax:

    “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as thestatute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors astaxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement topay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assessand collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax:it produces at least some revenue for the Government.”

    Roberts, stating why the mandate might not be viewed as a penalty:

    “In Drexel Furniture, we focused on three practicalcharacteristics of the so-called tax on employing childlaborers that convinced us the “tax” was actually a penalty. First, the tax imposed an exceedingly heavy burden—10 percent of a company’s net income—on those who employed children, no matter how small their infraction. Second, it imposed that exaction only on those who knowingly employed underage laborers. Such scienter requirements are typical of punitive statutes, because Congressoften wishes to punish only those who intentionally break the law. Third, this “tax” was enforced in part by theDepartment of Labor, an agency responsible for punishing violations of labor laws, not collecting revenue.”

    As far as jurisprudence goes,

    “The question is not whether that is the most naturalinterpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932).”

    Leviticus (e923df)

  180. Icy, you don’t get it. The point is, in some instances we’re already required by the government to pay for insurance. So requiring health care insurance is really nothing new.
    Comment by Tillman — 6/29/2012 @ 10:34 am

    – Tillman, isn’t Britney Spears’s “Hit Me Baby, One More Time” just like the greatest song ever? OMG!

    Icy (11b47c)

  181. 169. Icy, you don’t get it. The point is, in some instances we’re already required by the government to pay for insurance. So requiring health care insurance is really nothing new.

    Comment by Tillman — 6/29/2012 @ 10:34 am

    You don’t get it, Tillman. If you engage in certain activities you’re required to have insurance. But you have to do something to fall into the category that’s required to have it. If you have a business like a bar or restaurant, you’re required to have liquor liability insurance. If you drive a car, you have to have automobile liability insurance.

    The health care mandate is different because now, if you’re born in America, you have to have health care insurance. You don’t have to do, just be, and you’re required to have a commercial product or pay a fine. We’ve never had an insurance requirement, or a tax, premised on mere existence before.

    But to put this into terms you might better understand, the only reason why this monstrosity of a health insurance law confronts us is that federal law requires cost shifting. Hospitals that take tax dollars (sometimes not merely optional but a requirement just to operate the facility) must treat patients who can’t pay. The hospitals then have to shift the cost of treating such patients to those who can pay. The insurance companies via the insured. Or the taxpayer.

    They created such a huge problem that they’ve run out of cows to milk. So now people must buy insurance or pay a tax. These people are called “freeloaders” because they could buy insurance but don’t. In fact, they’re not the freeloaders; the freeloaders are already sucking the system dry and the feds need new milk cows. Their wallets need to be milked. To cover the costs of others, not for the cows own benefit.

    This is akin to addressing the costs of uninsured motorists by forcing people who don’t drive or own a car to by automobile insurance. And calling them “freeloaders” if they don’t want to be herded into the milk barn because at some point everyone’s going to need a car and in any case everyone participates in the transportation market.

    Cost shifting. It will work in any market.

    Steve57 (c441a6)

  182. Comment by Tillman — 6/29/2012 @ 10:34 am

    A reminder:
    If you only operate your vehicle on your private property, you need neither an operator’s permit, nor insurance.

    AD-RtR/OS! (b8ab92)

  183. Tillman, not understanding the fundamental difference between Federal and state powers, as you do not, is an egregious failure of elementary school education.

    SPQR (f068a5)

  184. Rather, it will work to destroy any market.

    Steve57 (c441a6)

  185. To my mind, the striking ingenuity of Roberts’ opinion is not that he treats the mandate as a tax over a penalty in assessing its validity as an exercise of Congressional power; he’s more or less obligated to give that charitable reading in deciding a question on the merits. What’s bothersome is that he treats the mandate as a penalty over a tax is assessing the Court’s own jurisdiction under the Anti-Injunction Act (which, to my understanding, he is most certainly not required to do).

    If the inconsistent treatment were foisted upon him as the result of two conflicting obligations of charitable interpretation, that would be one thing. But to enter into the inconsistency willingly by refusing to treat the mandate as a tax for the purposes of the Anti-Injunction Act seems remarkably disingenuous.

    Leviticus (e923df)

  186. JD, you’re being way too picayune* about this. “health” versus “auto” — insurance is insurance! “state” versus “federal” — government is government! “1st party” versus “3rd party” — people are people!

    [*ask your English professor to explain this one to you, Tillman]

    Icy (11b47c)

  187. Oh, and when you purchase said vehicle, the dealership will happily (for an additional fee) deliver it to your property in a manner where it will not have touched the state’s precious infrastructure (in some cases both physically, and visually – there are laws in some states about requiring registration for vehicles transported upon open trailers).

    AD-RtR/OS! (b8ab92)

  188. _______________________________________________

    Why is it that the trolls just trot out the same nonsense over and over?

    One reason why I don’t necessarily favor labeling posters here (or on various other boards) as “trolls” is because that implies they’re trying to stir things up merely to stir things up. That they’re possibly mimicking dumb or foolish comments not because they really believe what they’re saying, but only to get a rise out of others. That they’re trying to be flamebait because they get a cheap thrill out of causing verbal havoc.

    But look at Justice John Roberts. If his assessment of Obamacare had been voiced in this forum before yesterday’s ruling, we could have easily sworn he was being a troll, that he was trying to rile everyone up just to rile everyone up. But, believe it or not, the contortionist routine he displayed in the 5-to-4 ruling was done seriously and apparently with some earnestness. And that’s a far more disturbing and pathetic reality than someone being outrageous or nonsensical in order to be a troll or flamer.

    Mark (90205b)

  189. 185. A tactical move of some merit politically, but dubious strategy, a jurisprudential mess.

    gary gulrud (dd7d4e)

  190. It sounds to me that the Anti-Injunction Act was passed, and was not found to be an unconstitutional infringement upon the prerogatives of the Court, so that the Justices could “skate” as long as possible on issues that they could deplore as “political”.
    When the Congress only met briefly once or twice a year, and didn’t think of itself as “Jake Almighty”, that was suitable.
    Now, that Congress which believes (see Princess Nan) that its power is without boundaries needs a minder, one with an ability to be Mom and say NO!

    AD-RtR/OS! (b8ab92)

  191. Maybe Tillman could show us a mandate requiring comprehensive and collision coverage.

    JD (ad6f40)

  192. Later, JD; after he finishes his juicebox.

    Icy (11b47c)

  193. Mark is correct. Tillman is not a troll; he is merely . . . uninformed in the ways of the world.

    Icy (11b47c)

  194. It is a difference in the nature of the coverage, in what is being provided. There is a basic fundamental difference. The auto insurance mandates require coverage to protect others. They do not require coverage for your own car. You are not mandated to have 1st party coverage on your house, unless you have a mortgage requirement, and that protects others. Tillman is being intentionally thick.

    JD (ad6f40)

  195. The Chief Justice’s opinion says there are such limits but declines to elaborate them because…

    …he can’t.

    It will be up to us to write those limits into the Constitution. Roberts may have limited Congress’s ability to avoid using taxes to do things, but if there is no clear limit on the tax power, we need to make one.

    Perhaps: “Congress may levy no tax on activity or inactivity that it cannot directly regulate.”

    Kevin M (bf8ad7)

  196. I don’t know about the “intentionally” part.

    Icy (11b47c)

  197. If the left got to robes roberts this easy, I can imagine the ballot boxes are already full.

    mg (44de53)

  198. roberts just gave obama a site on Mnt. Rushmore.

    Just as soon as the environmentalists allow it. Just to the left of FDR, with Reagan on the right.

    Kevin M (bf8ad7)

  199. – In reality, believe it or not, that “someone” actually receives the bill, and is subject to collections and wage garnishment if they do not pay it. Now, does the government pick up the tab in the meantime? Probably.

    A deadbeat is a deadbeat. Making what they won’t pay for free does not change that.

    Kevin M (bf8ad7)

  200. They’re gonna put FDR up there, too?!

    Icy (11b47c)

  201. (remembering, of course, that in the case of an injury auto accident it is the auto insurance of one or both drivers that covers the ER visit, not health insurance)

    Tillman would know that if he had auto insurance.

    Kevin M (bf8ad7)

  202. They’re gonna put FDR up there, too?

    WW2.

    Kevin M (bf8ad7)

  203. Icy, you don’t get it. The point is, in some instances we’re already required by the government to pay for insurance. So requiring health care insurance is really nothing new.

    Comment by Tillman — 6/29/2012 @ 10:34 am

    Are you really this dense? According to your flawed analogy what should happen is that the 12% that don’t drive should be required to pay for auto insurance to help subsidize the industry for the free loaders that drive around without insurance or will someday decide to get a car and therefore need insurance.

    And this is to make it fair to all the people who get into dozens of car accidents and have high rates (their preexisting conditions) and also allow kids to stay on their parents auto insurance in perpetuity.

    This ignores that it’s also State vs Federal sovereignty.

    NJRob (11f468)

  204. Leviticus-
    You’re doing a good job at “sounding like a lawyer”, which is a good thing when talking with lawyers…
    but my eyes glaze over with most of your posts these days, so make sure you are “talking normal” to “normal people” at times as well.

    Said as one professional from inside the “medical ghetto” to one professional inside the “legal ghetto”.

    MD in Philly (3d3f72)

  205. A deadbeat is a deadbeat. Making what they won’t pay for free does not change that.
    Comment by Kevin M — 6/29/2012 @ 11:45 am

    – Agreed.

    Tillman would know that if he had auto insurance.
    Comment by Kevin M — 6/29/2012 @ 11:48 am

    – Oh, I dunno. I hear that some of those motorized skateboards are actually street legal.

    Icy (11b47c)

  206. MD in Philly,

    Sorry. I’ve been immersed in legal gobbledegook for the better part of a year now. It’s easy to slide into it without thinking…

    Perhaps Painted Jaguar would give his insight into my comment earlier:

    [Levi's Journal, 6/28/12:]

    I was at the zoo, looking at this animal – big ferocious-looking sucker, long tail, black and orange stripes, big teeth, big paws, over next to the lion cage.

    I was looking at a duck.

    Question: What does the textualist say I was looking at? It’s an honest question, and I don’t have an answer for it.

    Ultimately, my point is that there is text in the ADA which makes Roberts think that the mandate is a tax, not a penalty. So, by an arguably reasonable reading of the text (without appeal to any intent) Roberts decided to treat the mandate as a tax, not a penalty. That doesn’t strike me as a violation of the principles of textualism.

    There are other reasons which I’ve discussed above which make Roberts’ course of action look more lily-livered.

    Leviticus (e923df)

  207. Its absolutely hilarious today … so many Democrats – including Jay Carney the least credible man to hold the press secretary job – are saying that no, the Supreme Court is wrong, its not a tax.

    SPQR (26be8b)

  208. Leviticus,

    I know the argument you’re making, but it doesn’t imply in this case. A more accurately description would be the following for a textualist.

    I saw an animal today. It had a beak and feathers. It was swimming on a pond. It was a duck.

    A textualist would take these words literally to mean what they say. Now if ducks weren’t in the area normally the textualist would still say it was a duck while others would try and claim it must be a swan or goose. Something that could properly fit into the argument while fitting the broader context.

    The textualist won’t change words just because they could mean something else. Not their problem.

    NJRob (24c2d9)

  209. No apology necessary, levi. Like I said, you are talking to lawyers here.

    Painted Jaguar did give his opinion, i just didn’t credit it to him, and I guess you missed it in the mix…

    I was at the zoo, looking at this animal – big ferocious-looking sucker, long tail, black and orange stripes, big teeth, big paws, over next to the lion cage.
    I was looking at a duck.
    Question: What does the textualist say I was looking at?

    A tiger that promised to kill you unless you called it a duck.

    At first I thought he was just being silly, or surly, on a hot Friday afternoon without enough vegetation to hide under, but he tells me that he is serious. To quote:
    Painted Jaguar: If Roberts can get attention by saying something totally unexpected, so can I. Besides, I have big teeth, big paws with sharp claws, and look pretty ferocious too, but I don’t like being called a duck…or an armadillo.

    MD in Philly (3d3f72)

  210. But- but- but-
    Doesn’t the Supreme Court usually take GREAT CARE not to infringe on the wide latitude they allow the Legislative Branch and its deliberations?

    And yet, this one time, they totally ignore MULTIPLE assertions that “this is not a tax, it’s a penalty”.

    It seems to me they’re stomping ALL OVER Congress’ toes on this. How does “we just interpret the Constitutionality of law” morph into “we decided we had to re-jigger the basic precepts of this law (interpreting “penalty” as “tax”) so we could find it Constitutional”????

    Hunh??? What??? So we’re now in Alice’s Wonderland — where “words mean what I want them to mean” ???

    Sorry, but I don’t think we’ve got rule-of-law anymore. I think we’ve got rule-by-fiat. At least one branch of our Government should be renamed The Rubber-Stamp-Approval branch.

    A_Nonny_Mouse (57cacf)

  211. Whoops. You did indeed already address that. Let me mull.

    Leviticus (e923df)

  212. 205. A deadbeat is a deadbeat. Making what they won’t pay for free does not change that.
    Comment by Kevin M — 6/29/2012 @ 11:45 am
    – Agreed.

    Comment by Icy — 6/29/2012 @ 11:57 am

    Not agreed. The Obamagandists are calling people who can afford insurance but don’t buy it deadbeats. Insurance isn’t the only way for people to pay for medical care.

    California Health Care Providers Offer Discounts for Cash Payment

    Many hospitals and doctors offer cash discounts for medical bills for their patients, regardless of income. But there’s a catch: The lowest price is usually available only if the patients don’t use their health insurance.

    The savings are impressive in some states. A Long Beach hospital recently charged a patient $6,707 for a CT scan of her abdomen and pelvis after colon surgery, as first reported by the Los Angeles Times. Because she had health insurance with Blue Shield of California, her share was much less: $2,336. But the patient found out about one of the little-known secrets of health care: If she hadn’t used her insurance, her bill would have only been $1,054.

    They inflate the insurance bill for the true deadbeats; the true freeloaders. People who get their medical care and pay nothing. In other words, Obama’s core constituencies.

    People who pay cash for whatever health care services they use are simply making the rational choice. It might appear that insured patient above paid a little over twice what the cash customer paid for the hospital stay and CT scan. But don’t forget, she also pays thousands of dollars in premiums a year for the privilege of paying over twice as much for her health care when she needs it.

    The magic of cost shifting. It doesn’t happen to cash customers. Even very serious illnesses can be dealt with, depending upon the market you live in. You have to do research and prepare ahead, but you’re not on your own as there are networks you can join.

    I personally know two uninsured cancer survivors who paid for their treatment on a cash basis. No bankruptcies, they live in nice houses and have stuff like cars and boats. And paid off their medical bills.

    Obama and his minions call these people “freeloaders.”

    It’s bait and switch. They need these people to join the health insurance collective so they can access their bank accounts and make them pay, not for their own care, but members of Obama’s core constituencies care.

    That’s why Max Baucus announced after ObamaTaxaFinaPalooza passed that the goal of the bill was wealth redistribution. Or, as he put it, “income maldistribution.”

    It’s not about making people take “personal responsibility.” Remember, the law refers to a “shared responsibility payment.” This is what Obama means by “I am my brother’s keeper.” He won’t even send his own brother in Nairobi his own money. He won’t even send him a birthday card with a ten-spot and double his $1/month income (hell, he won’t even give his own kids anything on their birthdays).

    But he will send they your money. “I am my brother’s keeper,” he says as he puts a gun to your head and makes you buy insurance that is actually meant to keep his brother in good health. Or your tax dollars, either way. Just as good.

    But remember, his brother who’s using your money isn’t the freeloader. You are, if you don’t want to cough it up.

    Steve57 (c441a6)

  213. I guess “a tiger that promised to kill you unless you called it a duck” is a fine answer, although Roberts nominally lives on the safe side of the tiger-moat – so I dunno. Maybe.

    Leviticus (e923df)

  214. Levi-
    Hopefully you’ve already finished “mulling”, as PJ didn’t spend all that much time mulling himself. (Jaguars don’t mull very well, they usually quickly fall asleep if not actively stalking.)

    MD in Philly (3d3f72)

  215. This Daily Caller op-ed claims the Commerce Clause portion of the Roberts’ decision is a necessary part of the decision and thus it is a holding. As a result, the author argues it is binding precedent on future Commerce Clause cases.

    Isn’t the taxing clause the basis for this decision? Someone help me understand why the Commerce Clause portion is a holding and not dicta.

    DRJ (a83b8b)

  216. DRJ-
    We’re in the middle of Friday afternoon silliness, how dare you interrupt with a serious question!!! :-(

    Actually, I did ask some serious questions too, but in PP time it was still officially Friday Morning.

    MD in Philly (3d3f72)

  217. DRJ,

    I can definitely see that. If Roberts hadn’t discounted the idea that the mandate was unconstitutional as an exercise of the Commerce Clause, he would never have had to address the possibility that it was a tax – so in that sense the finding that Congress can’t mandate action under the Commerce Clause is necessary to the holding.

    Very interesting.

    Leviticus (e923df)

  218. 5 justices said the commerce clause did not justify ObamaCare, only 4 said it did

    but 5 said Obamacare was Constitutional, but on 2 different reasons 4/1

    What counts as a legal precedent you know, I don’t

    MD in Philly (3d3f72)

  219. Whether it’s dicta or not (and I think it’s dicta), Roberts’ decision didn’t change Commerce Clause case law. As this article explains, conservatism (and, IMO, Roberts’ reputation) lost yesterday and no amount of spinning will change that.

    DRJ (a83b8b)

  220. If Roberts really wanted to make Commerce Clause law, he should have joined Alito, Scalia, Thomas and Kennedy by ruling the ACA unconstitutional under the Commerce Clause. He didn’t, and I have to assume that means the Commerce Clause wasn’t the point of this exercise.

    IMO Roberts’ goal was either to approve ObamaCare, to avoid having his Court perceived as partisan, or both. So now we have a 4-1-4 Court that is not only partisan but fractured, with a leader that no one trusts. How’d that work out?

    DRJ (a83b8b)

  221. “Isn’t the taxing clause the basis for this decision? Someone help me understand why the Commerce Clause portion is a holding and not dicta.”

    - DRJ

    I think the idea would be that there were two justifications proffered, one preferentially, and that in order to even address the second Roberts was required to dispose with the first. If the presence of the Commerce Clause argument (the government’s preferred justification) served as a barrier to addressing the Taxation argument – on mootness grounds, maybe? – then dispensing with the Commerce Clause argument was necessary to making the Taxation argument and the logic behind the disposition of the Commerce Clause argument is binding as ratio decidendi.

    ?????? Maybe? I dunno; I’m way outta my league with that question, but the argument is interesting enough that I want to understand it. I eagerly await a better answer than the one I’ve given above.

    Leviticus (e923df)

  222. Ref “the actual language by Roberts”:

    “Members of this Court are vested with the authority to interpret the law; …{yada yada}… It is not our job to protect the people from the consequences of their political choices.”
    = = = = =

    OK, so how can we FORCE the jackasses we elect to do the right thing? Like, for instance, READ the FREAKIN’ BILL before voting on it? Those furshlugginer bastiges can do a LOT of damage before the next election comes up and we can replace them.

    Please tell Mr. Chief Justice Roberts that we vote for candidates hoping that they WILL do what they SAY they’ll do. But do we have any effective recourse if they’re bald-faced liars? Merely replacing one political hack with another after 2, 4, or 6 years (–having to wait till the next election comes around, after the first guy proves himself unsuitable) is too slow, and too uncertain (because we don’t know if the next power-seeker will be even MORE ineffective).

    I’m thinking that some more-immediate punishment, like tar-and-feathers, or horsewhipping, should be added to the power of the electorate, in order to keep our “Duly-Elected”s focused on their constituents back home (instead of on hobnobbing with their Party Elites in pursuit of a lucrative and prestigious political career).

    A_Nonny_Mouse (57cacf)

  223. IMO Roberts put the Commerce Clause analysis first because he wanted to show he agrees with the more limited view put forth by Scalia, et al. But it wasn’t necessary to Roberts’ decision.

    The only reason the Commerce Clause analysis would have been necessary is if the Court ruled ObamaCare constitutional or unconstitutional based on the Commerce Clause. But when the Court decided to rule on other grounds, it seems to me that it turned the Commerce Clause discussion into dicta.

    In other words, because of Roberts’ and the dissents’ analysis of the Commerce Clause, we know how the case would have turned out if the Court ruled ObamaCare wasn’t justified under the taxing clause. We know ObamaCare would been unconstitutional. But the Court didn’t need to go there in order to find ObamaCare constitutional on other grounds. And that makes the Commerce Clause analysis dicta, doesn’t it?

    DRJ (a83b8b)

  224. Maybe because Roberts couldn’t justify the mandate solely as a tax (due to the Anti-Injunction Act) he had to include the additional consideration of it as a penalty as well? I can’t see how that would require the full Commerce Clause analysis, though.

    Leviticus (e923df)

  225. Why doesn’t Congress pass this bill again, with the word penalty replaced by the word tax throughout the document?

    Think it would pass?

    JD (318f81)

  226. Maybe it had to be both a penalty and a tax (to get by the Anti-Injunction Act) but only justifiable as a tax. That dodges the procedural hurdle, allows for a binding discussion of the limits of the Commerce Clause, and (functionally, as far as the ACA is concerned) has no impact on the effect of the mandate.

    Leviticus (e923df)

  227. but only *be* justifiable

    Leviticus (e923df)

  228. “Why doesn’t Congress pass this bill again, with the word penalty replaced by the word tax throughout the document?

    Think it would pass?”

    - JD

    No.

    Leviticus (e923df)

  229. Forget the discussion. It was law clerks that Roberts did not want to demoralize. The holding and precedent: America can have a head tax.

    nk (875f57)

  230. Ilya Somin and Steven D. Schwinn think it may be dicta. If so, the Commerce Clause hasn’t been changed by this. The only thing that has changed is that we know what all 9 members of the Court think about it today, in this case … but we don’t know how they would rule on another day, in another case.

    DRJ (a83b8b)

  231. “The holding and precedent: America can have a head tax.”

    - nk

    Yup.

    Leviticus (e923df)

  232. I’m really spinning my wheels with this. Please disregard my earlier babbling answers to DRJ’s question as ill-conceived.

    Leviticus (e923df)

  233. And now the WH statement on Obamacare contradicts the SC ruling. Up is down, right is wrong.

    The White House said Friday that the Obamacare insurance mandate tax is a penalty for not having insurance – a statement that directly contradicts what the Supreme Court ruled Thursday.

    According to press reports, White House spokesman Jay Carney told reporters aboard Air Force One that the penalty was not a tax but a penalty.

    “It’s a penalty, because you have a choice. You don’t have a choice to pay your taxes, right,” Carney is quoted as saying by Yahoo News.

    Dana (292dcf)

  234. The reality is that the decision is a horrible muddle, and that its legal basis is screwed up, specifically because of Roberts’ last minute change of vote screwing up the process.

    In some political attempt to preserve the reputation of the court, he screwed up the reputation of the court.

    SPQR (26be8b)

  235. 220. If Roberts really wanted to make Commerce Clause law, he should have joined Alito, Scalia, Thomas and Kennedy by ruling the ACA unconstitutional under the Commerce Clause. He didn’t, and I have to assume that means the Commerce Clause wasn’t the point of this exercise.

    Boy, you are so right, DRJ. Mark Levin’s been pointing out something very significant today. First, you have to distinguish when Roberts (I’m going to call him CJRo from here forward, both for shorthand as well as to emphasize he contrived a lightweight, hip, fashionable opinion and not the Constitutional one) is writing for the majority or just for himself. Consider:

    Held: The judgment is affirmed in part and reversed in part.
    648 F. 3d 1235, affirmed in part and reversed in part.
    1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does notbar this suit.

    The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that thosesubject to a tax must first pay it and then sue for a refund…

    2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.

    And Levin notes that the four dissenting judges dissented from the entire Roberts opinion. Neither CJRo nor the dissenters concurred with any part of the other decision.

    So it’s completely erroneous to say that the court was 5-4 that Congress’ use of the Commerce Clause to justify an individual mandate was unconstitutional. There was no majority on that issue.

    IMO Roberts’ goal was either to approve ObamaCare, to avoid having his Court perceived as partisan, or both. So now we have a 4-1-4 Court that is not only partisan but fractured, with a leader that no one trusts. How’d that work out?

    Comment by DRJ — 6/29/2012 @ 1:21 pm

    Actually, the ObamaCare devotees perceive CJRo as a complete patsy:

    White House claims ObamaCare fine a ‘penalty,’ despite court calling it a ‘tax’ Read more: http://www.foxnews.com/politics/2012/06/29/white-house-claims-obamacare-fine-penalty-despite-court-calling-it-tax/#ixzz1zDWVFTU0

    “It’s a penalty, because you have a choice. You don’t have a choice to pay your taxes, right?” Carney said.

    …But describing the fine as a “penalty” helps fight Republican claims that the court ruling confirms the Obama administration raised taxes with its health care law.

    I’ve read where Mass. Gov. Deval Patrick was out and about claiming that it was just GOP spin to call the penalties in ObamaCare a tax. Completely baseless, and he rejected it. It’s a penalty.

    There is no silver lining to this dark cloud. CJRo may have delivered his opinion about the limits of the use of he Commerce Clause in “muscular” language, but CJRo delivered it alone.

    And he wasn’t playing any sort of “long game.” A day later the left is already saying, “thanks sucker.”

    He certainly didn’t make the left “own” the tax increase.

    The only thing CJRo did was legitimize ObamaCare.

    I was clearly wrong earlier I thought that while he may have delivered some sort of gain to conservatives in his Commerce Clause opinion, he gave away that and more in his opinion on Taxation. Now I realize, CJRo just gave away the store. There is nothing principled in this decision.

    And if Obama and his supporters are declaring that the SCOTUS ruled the PPACA entirely Constitutional as written, CJRo has no one else to blame but himself. Because, (A) he did just that by playing Alice-in-Wonderland word games yesterday. Instead of doing the principled thing and joining with Kennedy, Alito, Scalia, and Thomas and sending the entire thing back to be redone.

    And (B) he legitimized Alice-in-Wonderland word games by engaging in them. So since he chose to mentally insert “tax” where Congress had instead deliberately written “penalty” so he could falsely declare this abomination of a law Constitutional, then I don’t see how he can complain when ObamaCare enthusiasts read his ruling and mentally insert “penalty” where CJRo had instead deliberately written “tax” so they can falsely contend that CJRo approved of their pet bill entirely in his abortion of a decision.

    Plus, the ObamaCare enthusiasts have the added advantage of using the actual text in the law when they call a penalty a penalty.

    I am not entirely sure if this man is qualified chair the judging panel in elementary school spelling bee. I know what he’s not qualified now to do.

    Steve57 (c441a6)

  236. 221. I think the idea would be that there were two justifications proffered, one preferentially, and that in order to even address the second Roberts was required to dispose with the first. If the presence of the Commerce Clause argument…

    Comment by Leviticus — 6/29/2012 @ 1:22 pm

    Having dispensed with the preferred argument, Roberts and the court were done with the law.

    The Obama administration can in a sane world would have to argue ’til it’s blue in the face about some secondary justification, but if there’s no language to be found anywhere in the law to support anything but the first justification, neither the executive nor the judiciary have the authority to rewrite the law so they can pretend it’s there.

    CJRo trashed the concepts of separation of powers as well as enumerated, limited powers to achieve his results-oriented end. The only “long game” I can see being played here is by CJRo and he’s in it entirely for himself. And whatever he hopes to get out of it, it certainly isn’t a high reputation for either moral courage or well-reasoned, well-written opinions.

    And as soon as he finished twisting logic and the Constitution beyond recognition, the beneficiaries of his intellectual dishonesty began giving him exactly the amount of respect he deserved for this; none.

    Steve57 (c441a6)

  237. “It’s a penalty, because you have a choice. You don’t have a choice to pay your taxes, right,” Carney is quoted as saying by Yahoo News.
    Comment by Dana — 6/29/2012 @ 2:00 pm

    – Hey, that’s great! Did you hear that, everybody? Jay Carney says you don’t have to pay the penalty if you don’t want to!

    No repercussions.

    Trust him. He’s from the government and he’s here to help.

    Icy (11b47c)

  238. “If there’s no language to be found anywhere in the law to support anything but the first justification, neither the executive nor the judiciary have the authority to rewrite the law so they can pretend it’s there.”

    - Steve57

    If. But there is language to be found in the law to support the notion of the mandate as a tax; Roberts cites to it.

    Leviticus (e923df)

  239. No, he doesn’t. It’s not lengthy; here’s CJRo’s justification for concluding that you can read “tax” where Congress writes “penalty.”

    “Hey, what’s in a label?”

    Seriously.

    The most straightforward reading of the mandate isthat it commands individuals to purchase insurance. (page 37 of 193)

    …But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.

    Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing acondition—not owning health insurance—that triggers atax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.(page 38 of 193)

    As an aside, since when does the government tax going without gasoline or without earning income taxable like going without insurance?

    Oh, that’s right, it doesn’t.

    That muddle really means they could place something like a sales tax on an insurance policy, if those three things were remotely analogous. But instead of being analogous, CJRo is really playing “one of these things is not like the other” while pretending that’s not what he’s doing.

    The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. (page 38 of 193)

    …The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as thestatute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. (page 39 of 193)

    …It is of course true that the Act describes the payment as a “penalty,” not a “tax.” (page 39 of 193)

    …We have similarly held that exactions not labeled taxes nonetheless were authorized by Congress’s power to tax. (page 40 of 193)

    CJRo than drags on for the rest of the page about a bunch of things that were called something other than a “tax,” such as a “surcharge,” that were ruled to be within Congress’ power to tax. And on page 41 starts discussing the test to determine if something is functionally a tax.

    But the joint dissent puts a torpedo below the waterline of CJRo’s argument by pointing out that never has the SCOTUS trivialized a penalty by calling it a tax. Taxes may be so onerous as to penalize, but penalties are never mere taxes. And indeed, CJRo never comes up with such an example.

    And he’s applying his test to what he admits is specifically determined to be a penalty as deliberately written into the statutory language by Congress; the “shared responsibility payment.”

    And for the first time in SCOTUS history, necessity being the mother of invention, CJRo manages through focused wishful thinking to construe this penalty as a mere tax.

    He then proceeds to screw the pooch:

    In distinguishing penalties from taxes, this Court hasexplained that “if the concept of penalty means anything,it means punishment for an unlawful act or omission.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996); see also United States v. La Franca, 282 U. S. 568, 572 (1931) (“[A] penalty, as the word is here used, is an exaction imposed by statute aspunishment for an unlawful act”). While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. (page 43 of 193)

    But the four dissenting justices have anticipated CJRo’s argument, which must have been about as difficult for them as for four tournament poker players to take the lunch money from a nine year old. The mere fact that an act or inaction is penalized means the action, or failure to act, is unlawful. No language specifically designating the act or failure to act as unlawful is required. So, yeah, if the act or inaction is penalized, the act or inaction is by definition unlawful.

    And generally, when the only penalty assigned to an unlawful action or unlawful inaction is a fine of money, and one pays the fine, no further penalty applies in any case.

    On page 44 CJRo discusses a case, New York v. United States that might provide a means to construe what is specifically called a “penalty” as if it were a tax. Then gives short shrift to the Joint Dissent’s counterargument in the footnote.

    The joint dissenters argue that we cannot uphold§5000A as a tax because Congress did not “frame” it assuch. 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 downbecause 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 thresholdneed 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.

    Again giving short shrift to the joint dissent’s argument as they never claimed that these “penalties” were merely penalties because Congress mislabeled them. It has to do with far more than that, including how the bill was constructed.

    The joint dissent’s discussion of why the Government’s argument that “penalties” can be construed as “taxes” if we close our eyes and wish really hard fails miserably begins on page 142 of 193 in II The Taxing Power.

    CJRo concludes:

    Our precedent demonstrates that Congress had thepower 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). (pp45/46 of 193)

    Nowhere does CJRo cite language that is any way ambiguous. There’s no actual language that supports reading the penalty provisions as if they were taxes. CJRo cites precedents that might, through applied wishful thinking, let him construe clear language as if it meant something else.

    But you really need to read the joint dissent to see just how delusional that is.

    Steve57 (c441a6)

  240. Chief Justice Roberts spoke to a select audience today. In part,

    That’s when Roberts was asked what he thought his court’s legacy would be in 50 years and “how one recent opinion might fit into that” – an obvious reference to the health care decision.

    “Well, I won’t answer anything that has to do with the second part of that,” Roberts said. But he said he hopes that the court under him is remembered as one that “did our job according to the Constitution, of protecting equal justice under the law.”

    Lamberth hinted at the controversial decision when he asked Roberts if it bothered him that he can’t respond to his critics.

    “No,” Roberts said, his brief answer hanging in the air to more laughter.

    Dana (292dcf)

  241. It’s a shame the Chief Justice was not free to elaborate or respond to the myriad of unasked questions.

    …did our job according to the Constitution, of protecting equal justice under the law

    Dana (292dcf)

  242. Dana, is there any doubt why I see this contrived ruling as designed to fit a foreordained conclusion?

    Steve57 (c441a6)

  243. Comment by Steve57 — 6/29/2012 @ 3:39 pm

    Outstanding analysis.

    Thanks

    NJRob (fe68e7)

  244. justass roberts rules against the will of the people to stand with the communists. Why?

    mg (44de53)

  245. Patterico, if you think the Court must regard this as a penalty just because Congress called it one, then what do you think about Drexel Furniture, where the facts were the exact opposite. Congress called the money Drexel had to pay a “tax”, but the Supreme Court saw through the ruse and said it was really a penalty, and calling it a tax would not save it. If you call a tail a leg, a dog still has only four legs. If it waddles and quacks like a penalty, it is one.

    Roberts cites this as proof for his approach; just as Congress can’t just pretend a penalty is a tax, it also can’t pretend that a tax is a penalty.

    So would you have upheld the “tax” in Drexel just because Congress said it was one?

    Milhouse (15b6fd)

  246. Thanks, NJRob. I just hit the high points, but it’s a fairly complete catalog of the language actually used in the PPACA statute. CJRo tries to get around the fact that Congress consistently and deliberately used language referring only to mandates and penalties and non-compliance.

    The only place it seems to me that CJRo got close to accomplishing his goal of being able to justify his wish to construe a penalty as if it were just a tax was when discussing New York v. United States. But the joint dissent gets the better of that argument (pp 145/146 of 193).

    The language itself, though, in the statute is clear and ambiguous; there’s a mandate and a penalty for not complying with the mandate. As the dissent observes on page 148 of 193.

    Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends theInternal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition tothe income tax itself,” and that “[t]he [Internal RevenueService (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” Petitioners’ Minimum Coverage Brief 53. The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not. See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible pen- alty for failure to make campaign-finance disclosures);§5761(c) (IRS-collectible penalty for domestic sales of to- bacco products labeled for export); §9707 (IRS-collectible penalty for failure to make required health-insurancepremium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a “tax” was in fact a penalty. “[I]f the concept of penalty meansanything,” we said, “it means punishment for an unlawfulact or omission.” Id., at 224.

    I could have stopped with just the first sentence of the paragraph, but I just love everything that follows as the dissenters mock the Solicitor General for the list of reasons they can’t take his arguments seriously.

    I think the strongest evidence, though, that “tax” and “penalty” are not mere interchangeable “labels” as CJRo would have it is in way is constructed:

    Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v),(f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scope—a feature that would bequite extraordinary for taxes. (page 149 of 193)

    …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. (page 150 of 193)

    These beats the hell out that weak strawman about energy efficient windows that CJRo put together so he could knock it over and pretend that the difference between “tax” and “penalty” in the PPACA are mere labels. Rather than confront the reality of what’s in the law or the joint dissent.

    Steve57 (c441a6)

  247. I also think the Drexel Furniture thing is important, Pat. Roberts cited it because citing it makes an important point: it is not the role of Congress – serial prevaricators, incompetents, and general rubes that they are – to impose interpretive constraints on the Supreme Court.

    To be fair, I don’t think that’s what you’re arguing. I think you’re arguing that the text of the ACA itself precludes consideration of the mandate as a tax (vs. a penalty). But on that point, Drexel Furniture still serves Roberts’ purpose by making clear the duplicity of Congress in it’s labeling. And then, on top of that, Roberts points to other text in the ACA which supports his “walks like talks like a” argument re: consideration of the mandate as a tax.

    Leviticus (102f62)

  248. Steve57 wrote,

    Umm, Earth to QuadGMoto. When you get fined for failing to pay your taxes, you aren’t getting fined for “inactivity.”

    You’re taxed on activity. Economic Activity. You’re getting fined for having engaged in taxable activities and then not paying ontime.

    I think we’re in general agreement, but I’m not sure you’re understanding my point.

    I’m a computer programmer, specifically databases, so I tend to look at the properties of things to see how they are categorized. When I look at Roberts’ ruling, I see a categorization problem. Please allow me to compare:

    1a. The Government wants you to pay taxes (yes, based on activity) by a particular date.

    1b. The Government (under Obamacare) wants you to buy health insurance.

    2. Both are an activity they want you to engage in.

    3. If you do not perform either activity, the government wants you to pay them for failing to act.

    4. Both payments are collected by the IRS.

    5a. The payment for failing to pay taxes on time (not doing what the government wants) is called a penalty or fine. (I.e., not a tax even though the inactivity the penalty is assessed for is expressly a tax.)

    5b. The payment for failing to buy health insurance (not doing what the government wants) is called (by Roberts) a tax.

    When you compare the properties of the two payments side by side, the only difference I see is what one is called by Roberts to skip past the Constitution’s enumerated powers limitation.

    You also gave the example of a fine for not using a certain biofuel additive which also seems to fit the same pattern. Again, that’s considered to be a fine, not a tax.

    Basically, is there another property that Roberts relied upon that distinguishes the two kinds of payments? Or is his “reasoning” really as illogical as it seems to me?

    QuadGMoto (3eb042)

  249. Randy Barnett, one of the primary movers and architects of the anti Obmacare legal effort (focusing on the commerce clause) has a piece up at the daily beast in which he calls yesterday’s SC ruling “bittersweet”. It is clear he is disappointed but he is far from suicidal because he sees some significant positives. Randy Barnett, of all people, is entitled to be heard on this and his views deserve to be considered. So please go over to the beast and read the whole thing:
    ***
    Now the bitter part: the court rewrote the “penalty” enforcing the mandate to be a “tax” and upheld it. The good news here is that, while Congress can use its tax powers to incentivize conduct, it will be limited to monetary incentives. Had its Commerce Clause claim been upheld, in the future it could have punished noncompliance with congressional purchase mandates with any penalty—up to and including imprisonment.
    ***
    (After riffing on the history of the commerce clause Barnett continues) From then until today, most law professors have taught that the power of Congress to regulate the “national economy” is limited only by congressional restraint, which means that the power is unlimited. When, in 1995, the Rehnquist Court held that Congress could only regulate intrastate activity that was “economic” in nature, the legal intelligentsia threw a fit about “conservative judicial activism.” Until today, these same experts have maintained that this was the only limitation on congressional power, which is why they and the administration were so confident of victory. Since the Affordable Care Act “regulates” economic activity, it must be constitutional.

    Today, the Supreme Court definitively rejected this position by holding that mandating economic activity is not the same as regulating it, and that some means Congress chooses to regulate commerce can be improper.
    ***
    Whatever happens at the polls, however, by affirming that the Commerce Clause and the Necessary and Proper Clause of the Constitution have judicially enforceable limits, today’s decision will be a landmark of constitutional law.

    elissa (c72fd8)

  250. QuadGMoto,

    I’ll let the justices who wrote the joint dissent give you a hint as to what I think, and which is the correct choice:

    What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of thesophists.

    Steve57 (c441a6)

  251. Is this just a wacky decision, or have we reached an end stage of legalism in this country?

    At any moment, we are violating a statute of some kind. Who could have ever foreseen armed agents invading a guitar company over a piece of illegal wood?

    Must it all come crashing down to rebuild it anew, or can it be reformed?

    Patricia (e1d89d)

  252. elissa, there is another silver lining as well:

    Supreme Court ruling could boost the cost of health-care reform, ex-CBO chief argues

    I know that doesn’t seem like much of a silver lining, at first. But the process of reconciliation can only be used to pass budgetary legislation if it doesn’t add to the deficit. I’m not going to do the research, but if memory serves the Democrats had to play shell games with Health Care spending (like the Medicare Doc. Fix) to get the PPACA to “bend the cost curve down.”

    Apparently the incentives to expand MediCaid aren’t as juicy as I thought. So that’s why the feds wanted to punish states by withholding MediCaid money that they’re already getting to compel them to expand MediCaid.

    And the ObamaCare ruling said that was unconstitutional.

    So now a lot fewer states will want to expand MediCaid. The Feds pay 100% of the increase at first, then reduce their “contribution” and the states take over a large chunk of the increased costs on their own. Thanks but no thanks (this is also why temporary tax incentives or other temporary fixes don’t induce employers to hire new employees; apparently the Obamanista insurgents can’t learn).

    Instead, now the states will have greater incentive to encourage low income individuals who might have qualified for enrollment in the expanded MediCaid coverage to go for the federal subsidies and buy private insurance.

    In other words, the feds won’t be able to shift the costs of ObamaCare to the States, so ObamaCare will spend more at the federal level than predicted.

    Some “analysts” disagree:

    Liberal analysts disagree.

    They argue that the impact of the court ruling is likely to be small and could actually lower the cost of the health-care act. Individuals earning less than 100 percent of the poverty level are not eligible for the subsidies, and might not be covered by Medicaid, either, if states opt out of the Medicaid expansion. Under that scenario, millions of people could find themselves without access to coverage – and the federal government would not have to pay a dime for them.

    You know, the same economic analysts who think that spending $100M on a stimulus project to create 13 jobs is a great idea, or Solyndra was a good investment. Right.

    So, now repealing ObamaCare through reconciliation looks a lot easier to achieve. All it takes is 51 votes in the Senate, no filibuster allowed, and it’s on President Romney’s desk.

    Steve57 (c441a6)

  253. 251. Is this just a wacky decision, or have we reached an end stage of legalism in this country?

    …Must it all come crashing down to rebuild it anew, or can it be reformed?

    Comment by Patricia — 6/29/2012 @ 7:28 pm

    The good news is it can be reformed. Jonah Goldberg suggests that instead of having a Supreme Court we just start sacrificing sheep or goats and reading their entrails to determine Constitutionality.

    I can see a number of advantages. Number one of which will be the post-ruling BBQs.

    Steve57 (c441a6)

  254. Iowahawk: “The last time Democrats gloated this hard after a health care victory, they lost 60 House seats.”

    https://twitter.com/iowahawkblog/status/218481092582318080

    Colonel Haiku (c27e8f)

  255. Colonel’s Prediction:
    Democrats lose Senate and
    Zero falls this Fall

    Colonel Haiku (c27e8f)

  256. I want to know what Karl thinks

    happyfeet (3c92a1)

  257. Colonel–have to agree with Iowahawk. Voters hearing her squawk about this, and seeing Nancy’s plastic face front and center again, while being forced to remember her as speaker carrying that big ass gavel——well let’s just say that mental image ain’t likely gonna win a lotta votes for the Dems.

    elissa (c72fd8)

  258. Coming Attractions
    “Teh Great Repudiation”
    on November Sixth

    Colonel Haiku (c27e8f)

  259. Great minds think alike, elissa!

    Colonel Haiku (c27e8f)

  260. and I have some lucid moments every now and then…

    Colonel Haiku (c27e8f)

  261. there’s a teeny weeny something that’s so small you can’t see it on the speck on the flea on the tail on the frog on the bump on the log in the hole in John Roberts’ perverse constitution-raping logic I think

    happyfeet (3c92a1)

  262. or maybe that’s just some choom gang residue

    happyfeet (3c92a1)

  263. harvard trash harvard trash burning bright
    in the lurid tomes of law

    what mortal not harvard trash person could espy
    your logics and your reasons why

    happyfeet (3c92a1)

  264. Steve57,

    Thanks for helping be sure that I’m not missing something significant. (Your analysis in 239 and similar comments, which I just read, was a big help too.)

    I guess it just boils down to CJRo having a “Because I say so” moment.

    QuadGMoto (3eb042)

  265. Chief Justice John Roberts has betrayed the very essence of Truth, Justice, and Constitutional Integrity in his leadership of the US Supreme Court. In other words he sold America, the US Constitution, America, and the American People’s Individual Freedoms, Liberties, Rights and Sovereignty down the river.
     
    Justice Roberts is truly a Trojan horse in a black robe. For someone who professes to be a highly intelligent and respected conservative leader of the Judiciary, the other branch of the Federal govt., he has shown absolute incompetence and ineptitude in his illogical reasoning in his decision to uphold Obamacare’s mandate as a tax, when Congress clearly did not write it as a tax, and is not within the confine jurisdiction of the commerce clause, thus citing this unconstitutional law and it’s mandate to be constitutional as a tax, is absolutely egregious, contemptible, and incomprehensibly abhorrent, let alone having the stench of something insidiously treacherously rotten in Washington DC.

    This is what happens radical liberal progressive ideological zealot permanently entrenched political class politicians on both sides of the political fence runs the country into the ground to economic, social, and political ruin and destruction, when all that is left are ashes of what once was.

    This is why we, the Patriotic Constitutional Conservative American People from every walk of life in American Society, must elect as many Reagan Tea Party Conservatives to Congress this Nov as possible, replacing as many of these worthless colluding collaborating RINO’s as possible, and put some actual backbone into the govt that is supposed to represent and protect the People, who are supposed to oppose these tyrants and despots named Obama, Pelosi, Reid, and now Justice John Roberts contemptuous actions against the American people and to repeal not only the Obamacare law, but Dodd-Frank, and every one of Obama’s anti-American socialist-marxist laws ever passed and signed, as well as reversing all of his executive orders, as they must all be repealed and defeated, no matter how long it takes.

    Sonny Dee (c78c8c)

  266. Sonny–step away from the edge with the rhetoric. You do not come across as Patrick Henry. You come across as a leftist axelturf version of how they think a extremist right-winger speaks.

    We have an election coming up. We have several months to get our act together as Americans. The “it’s a tax” theme gives us both a powerful marketing and a powerful practical path we lacked before Thursday. Now, as a result of the SC ruling we can overturn Obamatax with 51 votes in the senate. Let’s get them. We can overturn Obamatax with Mitt as president who said he’d immediately sign to repeal the bill. Let’s elect him. Let’s convince those who are vowing to vote for a third party candidate or Nor Laup that the road to repeal is through a Republican majority senate and a Repub president. There will be “defecting” Democrats who vote to repeal as well at that point.

    Fair warning. I’m going to judge people over the next few months. I am going to judge whether they are working to clear a path to help get Obamatax repealed, or whether they are standing in the way–shouting and raving– while looking and sounding clueless and solving nothing.

    elissa (ab12d4)

  267. You know, I’m starting to think Sonny Dee really is an OFA drive-by–a dropping from David Axelrod’s creative department–a frothing faux conservative. Go figure.

    elissa (73bddc)

  268. elissa, it looks like someone developed an automated web-based conservative caricature meme generator, doesn’t it? Just type in your own text.

    Steve57 (c441a6)

  269. I think that the substance of what Congress writes into a law is more important than the exact diction it uses. For example, an Authorization to Utilize Military Force is the same thing as a Declaration of War. This is because using military force against another country or armed force is in fact war whether we call it war or not. Further, the Congress’ way to stop a President from waging an illegal, unauthorized war is either to impeach the President, or to refuse to fund the war. And it would be ridiculous for a Congress to do either thing (but especially the former) if said Congress had passed explicit authorization for the military force / acts of war to which it was now complaining. So that’s one reason why critics of “Bush’s illegal war” in Iraq were being ridiculous, while those of Obama’s illegal war in Libya are not. One can truthfully say that neither conflict was preceded by a “Declaration of War,” but in fact the former conflict was explicitly authorized.

    Likewise, if in fact a bill levies a tax, the labeling of the tax as something else would not matter; Congress would still have to properly pass it as a tax bill. I have not read the ACA or the SCOTUS decision, so I have no strong opinion on the merit of Roberts’ decision, but in theory such a decision (stating that it is a tax even though it is labeled a penalty) could be robust and proper by any standard. But then, as a tax bill I would have thought that the House would have had to originate or pass it before the Senate. And as a tax bill, I understand it could be repealed by a simple majority in the Senate.

    David Pittelli (87401c)

  270. But then, as a tax bill I would have thought that the House would have had to originate or pass it before the Senate.

    It did.

    And as a tax bill, I understand it could be repealed by a simple majority in the Senate.

    Exactly. We just need to get 4 more senators (plus a couple of safeties in case the Maine sisters rat on us.)

    Milhouse (15b6fd)

  271. Steyn:

    “The U.S. Supreme Court is starting to look like Britain’s National Health Service — you wait two years to get in, and then they tell you there’s nothing wrong. And you can’t get a second opinion.”

    Plainly Roberts had sufficient feedback from his peers that the ‘tax’ dodge was just that, unsupported by any lower court, with its own Constitutional restrictions unaddressed by his decision.

    He doesn’t care because there is no controlling authority. The payoff of a lifetime pass with the Left was just too good to forego despite the loss of regard by esteemed peers.

    gary gulrud (dd7d4e)

  272. Maybe Roberts wasn’t making a political decision as such but he was engaging in liberal-style social engineering — because he thinks government health care is the only way to provide health care for the poor and uninsured. Using the law and government to create solutions for the poor is accepted among academics and elites, even at Harvard and even by some conservatives.

    If so, this is even more depressing about Roberts. Frankly, at this point, I’d feel better if the decision were based on Roberts’ concern with the Court’s image. An image-conscious Justice is better than a Justice who thinks government is the ultimate solution.

    DRJ (a83b8b)


Powered by WordPress.

Page loaded in: 0.6590 secs.