Patterico's Pontifications

7/4/2012

Romney: If the Supreme Court Says It’s a Tax, Then Hey, It’s a Tax

Filed under: General — Patterico @ 12:15 pm



I think this is a perfectly defensible position. I happen to believe it’s an unconstitutional penalty, but I’m not on the Supreme Court, and the Supreme Court has spoken. That’s what Romney is saying here and it’s right:

183 Responses to “Romney: If the Supreme Court Says It’s a Tax, Then Hey, It’s a Tax”

  1. Lawmaker: But, but I pressed the penalty button!

    Patterico (feda6b)

  2. I think he is keeping his powder dry on this one and he is right. Never let the left frame the argument. Stick to the economy.

    Gazzer (ff3da6)

  3. It’s a sound and rational statement. It’s especially good to hear him include the fact that President Obama broke his pledge not to raise taxes on the middle class. He should always remind the voters of that when he discusses the decision anything during the campaign.

    Dana (292dcf)

  4. I agree that for legal purposes it’s a tax. It’s just that if I know the dissent got things right and Roberts couldn’t stand the heat so he got the hell out of the kitchen, I can’t bring myself to give him any more credit than he’s due.

    Which is to point out, as Prof. Jacobsen at Legal Insurrection has, that it’s not the Supreme Court because it’s right. It’s right because it’s the Supreme Court.

    I’m totally cool with observing the only reason ObamaCare still exists is because Obama argued the individual mandate was a tax, and one justice was stupid enough to go along with the farce. Or words to that effect. If Obama had been honest and had his people argue it’s a penalty, not a tax, ObamaCare would no longer threaten us. But we all know Obama not only can’t be constrained by but feels no impulse toward honesty, because if that were the case then ObamaCare wouldn’t have passed the House let alone have survived to go to the SCOTUS.

    As far as Roberts ruling goes, if it walks like a platypus and swims like a platypus, but platypuses aren’t legal in this country, Obama’s solicitor general will tell you it’s a duck if that’s what it takes. And then he’ll tell you just what essential features a platypus has than makes it look like a duck. Then he’ll hide your contacts and get you drunk. “Hey, look at that face and those webbed feet; it’s a duck.”

    OK, so Roberts got drunk and let a platypus loose into Lake Constitution. And so, yeah, the only reason we have a platypus loose in Lake Constitution is because Obama put his solicitor general up to exactly that kind of mischief. I am more than willing to talk about it.

    But it’s still a damned platypus.

    Steve57 (7baca9)

  5. Very good Mr. Romney. It would be foolish to try to argue against the Supreme Court on this matter: they are the recognized authority, and what they say, goes. It can only be countered by a later court (or by subsequent law) and not by a candidate for president.

    So, but supporting the SC, Romney stakes out a position from which he can fight: It’s a tax, and Obama passed it against his promises not to. That’s electoral gold in most races.

    Go! Mitt! Go!

    Pious Agnostic (ee2c24)

  6. I want to know if Fehrnstrom spoke without authorization. Curious how this will
    Play out with Romneycare-its a tax but overwhelmingly approved by citizens? What?

    @ParisParamus (5eb74d)

  7. 6.

    I want to know if Fehrnstrom spoke without authorization. Curious how this will
    Play out with Romneycare-its a tax but overwhelmingly approved by citizens? What?

    Comment by @ParisParamus — 7/4/2012 @ 1:05 pm

    What’s to play out? As far as I’m aware, no one lied to the MA taxpayers and told them it wasn’t a tax.

    As Obama lied to the US taxpayers.

    That’s a difference that needs to be emphasized. We don’t need four more years of Obama lying to our faces. Badly, I might add, but the only reason he gets away with it is the media will jump all over critics who point out the obvious lies and call those critics racists.

    Steve57 (7baca9)

  8. Romney’s position should be very basic and straightforward:
    No matter what you call it, it’s wrong, and it will hurt middle-class Americans.

    Icy (9651ff)

  9. Even if it is less convenient on the back of Romneycare, it makes the most sense.

    The State mandate was a decidely more defensible than the Federal and he was going to have fits with his own tax proposals anyway. When he gets around to them. After the election. Mooted by surrogates.

    Courage.

    gary gulrud (dd7d4e)

  10. A massive tax increase on the American public, a massive tax increase on American business, and a fiscal disaster for the Federal budget – but that’s not all.

    Obamacare is a failure at doing what it claimed to do – cover the uninsured. All of its programs to date intended to extend coverage have been massive failures – failing, when measured by numbers of people, by orders of magnitude to extend insurance.

    SPQR (26be8b)

  11. The State mandate was a decidely more defensible than the Federal…

    Maybe the defense should revolve around the fact that if the people of MA were willing to give Ted Kennedy what amounted a life appointment to the Senate after offing Mary Jo Kopechne, they pretty much deserve whatever it is they get. And they were going to get it, good and hard, no matter who was governor.

    But the rest of us deserve better.

    So what’s right, in a cosmic justice sort of way, for Massachusetts is not right for the rest of the country.

    Steve57 (7baca9)

  12. #7, maybe my complaint is a bit parochial but I want to know if EF and Saul said it wasnt a tax. Was the intentional? A screwup? It’s still not really a tax but either they were baiting Obama to deny its a tax or they should have gotten their message straight. Did I just answer my own question?

    @ParisParamus (bfbe66)

  13. Obamacare is a failure at doing what it claimed to do…

    As per usual with liberals the stated purpose of the law has nothing to do with their real objective.

    It’s just that even they realize they wouldn’t get too far by telling the truth. They want to fleece the people like sheep and spread the proceeds amongst themselves and their friends. So they have to come up with a reasonably persuasive rationale that will lull enough people to sleep so they can achieve their real aim. Fortunately, for them, enough people want to crawl back into mommy’s womb that a plausible sounding pretense is usually readily at hand.

    But as far as accomplishing their real purpose goes, ObamaTaxaFinaPalooza has been a great success. Now they can have the massively overstaffed IRS with the greatly expanded powers to examine everything from small business payrolls to family finances in minute detail of their wet dreams.

    The only people likely to be disappointed are the idiots who were led to believe that the Patient Protection and Affordable Care Act was ever intended to deliver health care. And these idiots’ combined disappointment will translate, the Obamunists full well know, into generations of job security for greedy leftist politicians as they regulate us into the “solution” just as surely as they deliberately regulated us into the mess to begin with.

    Steve57 (7baca9)

  14. …or they should have gotten their message straight.

    I think you’ve identified the heart of the matter, ParisParamus. But working backward, my operating principle is that you’ve got much less to keep straight if your message is true.

    Contrary to appearances, I’m not beating up on Roberts purely for therapeutic reasons. I’m trying to work out what the most effective way to talk about this actually is. The problem is that Obama and his apologists will confuse the issue, and amongst the stink of lies will be a strong whiff of truth. The law states in black and white that there is a penalty for disobeying a mandate. And the SCOTUS ruled this law Constitutional. Arguing whether it really is a tax as Roberts ruled or a penalty as the law baldly states is exactly the fight they want to have. They can paint it as a tempest in a teapot.

    I just don’t see how it’s necessary. Every poll I read indicates that Obama isn’t getting a bounce out of his “victory;” people still hate it just as much as before.

    I just don’t see any honest way to talk about this except as a massive fraud being perpetrated against the American people. That’s the executive summary of the verdict on ObamaTaxaFinaPaloozaCare. If they want to crow about it being Constitutional, point out that’s only because they convinced a judge it’s a tax and now they have to lie to the American people that they did no such thing. If they want to claim people will like it once they experience its benefits point out all the people who’ve already lost their coverage due to the mandates despite Obama’s lies that if you like your coverage you’d keep it. Point out how premiums are rising despite the lies the opposite would happen. If they say it’ll create jobs point out that despite those lies Caterpillar, AT&T, John Deere, etc., have already announced billions in losses due to ObamaCare and that’s just the tip of the iceberg.

    That to me was one of the most telling episodes. Not just those but a number of CEOs have told of talking to Obama about just such losses. At first Obama refused to believe them, then accused them of lying. When ObamaTaxaFinaPaloozaCare passed, recall how leftist jokers like Waxman wanted to rake these CEOs over the coals for in their view playing pure politics and trying to sabotage ObamaTaxaFinaPaloozaCare. Until their staffs convinced them not to publicly embarrass themselves as they were completely, 100% wrong about everything; then they quietly called off the hearings.

    But one aspect never gets mentioned. These leftists lie so often about everything they think everyone else operates the same way. It never crosses their minds that there are consequences for other people to lie as routinely as they do. If a CEO lies to his shareholders in a communication required by the SEC that’s a crime. So not only didn’t these idiots know what effect ObamaTaxaFinaPaloozaCare would have on business, not only didn’t they know what effect other laws they’d passed previously would have on the requirements as to what losses these CEOs had to report to their shareholders and when they had to report it, but that the very laws they pass make it a crime to lie about these things.

    For other people, not for them. Just like ObamaTaxaFinaPaloozaCare applies to other people. You’ve got to get your lying *** elected to federal office before you can act as lawlessly as these guys.

    I somehow think that if Romney keeps the focus on the fraud as opposed to the semantics that’d be the way to keep the message straight. Combined with the fact that Obama and the rest of the Obamunists would be in prison if they had perpetrated this crime without getting elected first. Personally, I think there’s a message in there that would resonate. But maybe there’s no merit in it, or a downside I’m missing.

    Steve57 (7baca9)

  15. So what’s right, in a cosmic justice sort of way, for Massachusetts is not right for the rest of the country.

    A point frequently made by Mitt Romney.

    Sara (e8f5d4)

  16. Romney finally told everybody what they wanted to hear…but why was this such a problem for him?

    Calling this (or the penalty) a tax puts into stark contrast what this bill does.

    The only dispute on the Supreme Court was whether or not you could construe the penalty as a tax if Congress didn’t actually characterize it that way. They all agreed Congress could have written the law that way and done exactly the same thing – the same thing because Roberts accepted the position of the Solicitor General that under the bill it was not unlawful not to have health insurance.

    Actually there was another dispute. What do you throw out with the unconstitutional provisions?

    Sammy Finkelman (c08134)

  17. Sammy, it doesn’t work as a decision, in any way, that’s why the dissenters decided to treat it like
    that season of Dallas, that they wished away, the precedents used do not ratify this interpretation
    of Article 1, quite the opposite.

    narciso (ee31f1)

  18. The only dispute on the Supreme Court was whether or not you could construe the penalty as a tax if Congress didn’t actually characterize it that way. They all agreed Congress could have written the law that way and done exactly the same thing

    No, Sammy, they didn’t all agree to any such thing. The closest the four joint dissenters came to that was when they said:

    Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty.

    But since the statutory language couldn’t support the government’s argument that this was a tax bill, they never examined whether or not this was one of those cases.

    Let alone agreed to what you’re suggesting.

    Steve57 (7baca9)

  19. I may be an in-the-tank flunky at this point, but I’ll go with “Team Obama was baiting Obama with ‘it’s not a tax'” to see how they would react and/or dig themselves in deeper on the ‘it’s not a tax! position.” In fact, Romney seems to have done this type of thing a lot during the primaries: waited a bit, and allowed his opponents to flesh out their position before acting.

    @ParisParamus (5eb74d)

  20. How do you like the headline currently blaring on CBSNews website: “Romney sides with Supreme Court on Health Care Law”?

    elissa (9c0d0c)

  21. This is possibly only the 4,000th thing wrong with the bill, that it grants unlimited power to Kathleen Sebelius, to determine who can be treated and how, is possibly the greatest offense,

    narciso (ee31f1)

  22. I really don’t know what to do… in this economy I don’t have anyone to pass the costs off onto.
    In Obama’s economy, I will need to be able to levy a tax on everyone who doesn’t buy from me , so I can afford the Obamacare cost.

    SteveG (831214)

  23. why are his eyes so rheumy?

    happyfeet (3c92a1)

  24. I think Romney is handling this well. However, the truth is that no one is going to say the real truth: The cost of providing health care for everyone far exceeds anything we are willing to pay (not to mention it’s beyond what our existing health care system can realistically provide).

    We Americans want everyone to have health care but we also want everyone to pay. The first part is relatively easy but the second part will never happen because a significant percentage of the population isn’t going to pay — either because they don’t want to or because they can’t afford to. Americans are willing to pay for some people and some care, but it’s not fair or realistic to expect half the nation to provide comprehensive care for the other half.

    So we’re left with a one-sided bargain that will never be resolved. The only long-term resolution is to provide health care only to those who pay, but that will never happen because we don’t have the will to do it.

    DRJ (a83b8b)

  25. 2013, the Opening Day of the 113th Congress:
    Mr. Ryan of Wisconsin, Chairman of the House Committee on the Budget, drops into the hopper HR-1, a bill to repeal the Patient Protection and Affordable Care Act of 2010.
    HR-1 states:
    “The Patient Protection and Affordable Care Act of 2010 (PPACA) is hearby repealed, in its entirety.”

    We will know how serious the GOP Leadership of Congress takes this issue by their deviation from this simplest of tasks.

    Then, we might ask them about light-bulbs – but first things first.

    AD-RtR/OS! (2bb434)

  26. But since the statutory language couldn’t support the government’s argument that this was a tax bill, they never examined whether or not this was one of those cases.

    The dissent examined a bit on page 18 in this text (which sounds Scalia-ish to me):

    In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held — never — that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax…

    Admittedly, it doesn’t explicitly state that such an exaction would not fall within Congress’ taxing power, only that the Court has never held that to be the case. Still, it wouldn’t really make a lot of sense to include the argument unless that was the implication.

    piglet (21c8e7)

  27. #23

    He’s not perfect? Who knew?

    I dunno what happened (I’m 55), but sometimes my eyes glue shut and get all red. Plus I’m allergic to stuff now… wtf. God forbid our next president has an allergy to MSNBC

    SteveG (831214)

  28. Last time Obama having the wind at his back, with HOPE and CHANGE and LETS MAKE HISTORY and the sad-sack incumbent’s clear inability to deal with the metastasizing crisis. Then we had a candidate who couldn’t stay on any message, who nearly quit the campaign to offer unwanted help, and who was well past his sell-by date.

    And Obama won by maybe 5%.

    This time we have a seasoned candidate who knows how to stay on message and avoid saying many stupid things. All those folks who voted for hope and change and now unemployed hoping there;s some change in the couch. THe President not holy hasn’t a clue, he doesn’t know where they store the clues. They keep telling him, “It’s the economy, stupid!” and he keeps asking “Where?”

    By all rights this should be a landslide, once everyone starts paying attention.

    Kevin M (bf8ad7)

  29. …not only..,, but whatever

    Kevin M (bf8ad7)

  30. Admittedly, it doesn’t explicitly state that such an exaction would not fall within Congress’ taxing power, only that the Court has never held that to be the case. Still, it wouldn’t really make a lot of sense to include the argument unless that was the implication.

    There really is no implication, piglet. The dissent is clear; this exaction does not fall within Congress’ taxing power because this was not an exercise of that power:

    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.

    The only implication I can see in that passage you quoted is that Roberts is full of it if he thinks this is merely a case of using the wrong “labels.”

    Steve57 (7baca9)

  31. I think Romney is handling this well.

    I agree DRJ. At least, he’s handling it pretty well. He was quoted earlier today saying that he agreed with the dissent. But while he agreed with the dissent, the dissent lost. And the SCOTUS as an institution has spoken and they get the final say: it’s a tax.

    However, the truth is that no one is going to say the real truth: The cost of providing health care for everyone far exceeds anything we are willing to pay (not to mention it’s beyond what our existing health care system can realistically provide).

    Correct. But the truth should be part of the GOP stance against ObamaTaxaFinaPalooza. And the truth is that on multiple levels the Democrats need to hide the truth about how much this is going to cost from the electorate. This is why they needed the threat of withholding federal Medicaid money from the states to force them to expand their own state Medicaid programs. That would shift the cost burden off the federal books onto the states, and allow the feds to fraudulently make it appear that health care spending had gone down. Of course, the taxpayers are getting screwed as health care costs shoot through the roof whether it’s in federal taxes or state taxes. It’s why they can’t admit the tax penalty isn’t a tax, when legally it now is beyond a shadow of a doubt.

    But the biggest fraud is the health insurance that the tax is supposed to compel you to buy. If we say a tax is a payment that citizens are forced to make so that the government can use the money for public purposes, then the insurance itself is a tax by another name. There is a reason that the law empowers the HHS director to determine what constitutes the minimum coverage that everyone will be forced to buy or pay the penalty for having no or inadequate insurance.

    Your premiums will pay for the medical services others use. The HHS needs to make sure many people pay for services they won’t ever need to cover those who will use it. This became plain as day when the Obama picked what from the outside looked like an unnecessary fight with organized religion. But the bottom line, from the Obama admin point of view, is really the bottom line. They need Catholics paying for abortions and birth control, among other things. Conscience be damned.

    They need you and me to buy insurance whether we want to or not, whether we really need anything more than a catastrophic insurance policy or not, to pay for others. They have to lie and say it’s about “personal responsibility.” It’s not; it’s to use that money to pay the health care costs of others. Really, when you join a risk pool that is always the case. The insurance company doesn’t invest each individual’s premiums for just that individual’s use. They pool the premiums, and pay out using that money. But it’s a risk pool when it’s voluntary.

    When government compels you to join that risk pool against your will with the intent of using that money for the benefit of others, government is now compelling you to pay a fee not for a service but for a public purpose.

    In other words, it is no longer a voluntary commercial arrangement but has been perverted into a tax.

    The way it’s structured it allows the government to claim that’s not that money on health care spending at the same time it’s using the tax code to compel people who make enough money to pay taxes to spend their money on other people’s health care. So it’s a tax, but it’s a tax that’s off the books and thus part of the shell game the government is playing on the electorate in order to defraud it.

    That’s the truth that needs to be told, DRJ, but I seriously doubt the namesake of Taxachussetts’ health care law is the man to make it. Or even would be inclined to if he could.

    Steve57 (7baca9)

  32. Other than Justice Roberts, does it really matter what it is called? We don’t like it.

    AZ Bob (1c9631)

  33. Well, had it mattered to Justice Roberts what it was called then there’d be nothing left of this abomination for us not to like. It would be in the circular file of history.

    Ironically, it did matter to Justice Roberts what it was called. It had to be called a penalty, not a tax, for purposes of the Anti-Injunction Act. In order to claim he could hear the case in the first place, he had to be a stickler for the precise use of language. Once he got ObamaTaxaFinaPaloozaCare through the courthouse door he had to become really casual about the use of language to make sure it went out in the same condition it came in; largely intact.

    But the fact of the matter is ObamaTaxaFinaPaloozaCare is chock full of taxes, many of which are called taxes and many of which aren’t. But the health care consumer is going to be forced to cough up the money just as surely as if Congress had called it a tax.

    But you gave me an idea. Every time Obama says it’s not a tax, Romney needs to point out that Obama wouldn’t be massively expanding the IRS if he didn’t know damned well this is a tax.

    He needs to say that Obama’s actions speak louder than his words. In other words, Obama betrays himself as a liar by his actions. And Romney probably needs to use words as close to calling Obama a liar that Frank Luntz’s focus groups say the delicate sensibilities of the independents can tolerate.

    Obama is a thin-skinned prima donna, and he makes mistakes when he throws his little hissy fits.

    Steve57 (7baca9)

  34. It depends on your definition of it.

    ObamaCare is loaded with new taxes, $813 Billion in new taxes, but, if it refers exclusively to the fine for refusing to purchase health care insurance then it isn’t a tax.

    It’s a rose by another name.

    ropelight (f10feb)

  35. Patterico, I’ve been having this argument on several websites, and have been annoying people on Facebook since the decision was handed down.

    I’ve read the Roberts decision, and although I’m less than pleased with the outcome, in what way was Roberts in error in either the precedents he cited, the legal principles he applied, or in the interpretations of the Constitution used in the formulation of his opinion?

    I have yet to see a convincing argument to that effect. The only thing I’ve seen so far, in effect, is “I don’t like this opinion.”

    That is a piss poor legal argument.

    Brent Glines (f1a217)

  36. Brent – he declare a law constitutional that was not before him for consideration.

    JD (dfaa6e)

  37. …in what way was Roberts in error in either the precedents he cited, the legal principles he applied, or in the interpretations of the Constitution used in the formulation of his opinion?

    I have yet to see a convincing argument to that effect.

    I take it then, Brent, you have not read the joint dissent? Because the joint dissent dismembers Roberts’ hackery on exactly the points you say you’ve yet to see addressed.

    Steve57 (7baca9)

  38. You are kidding, right Brent?

    SPQR (26be8b)

  39. JD, the Government made a specific argument that if the mandate could not be upheld under the Commerce Clause, the penalty should be upheld under the enumerated power under the Constitution to Congress to levy taxes. So yes, it was before the court for consideration, and as I read the opinion, the court was compelled to sustain that argument.

    If you read the opinion, on what grounds do you find that decision to be in error?

    Brent Glines (f1a217)

  40. SPQR. no, I am not kidding. Read the opinion, and tell me which precedent was improperly applied, or which legal principle was applied in error. Show your work…

    Brent Glines (f1a217)

  41. Really, Brent? While you are going to “show your work” and show which precedents the dissent improperly applied?

    Or not?

    SPQR (26be8b)

  42. Brent is a singularly transparent concer troll. Obvious from its first comment.

    JD (dfaa6e)

  43. As I read the dissent, they neither discredited the precedents cited by the majority opinion, nor offered conflicting precedents of their own. The dissent is also, in effect, saying “I don’t like the majority opinion”. I can’t show my work with respect to something that isn’t there.

    If you disagree, quote me the part of the dissent you find compelling, and we can discuss it.

    Brent Glines (f1a217)

  44. The only thing I’ve seen so far, in effect, is “I don’t like this opinion.”

    wow.

    The opinion itself has its own argument against Roberts. It’s called the dissent. You haven’t read the dissent? No wonder you say people are annoyed with your opining in this case, then.

    Dustin (330eed)

  45. Show your work, Brent. Go through the dissent and show us where their logic failed, where their application of the law was wrong. I thought that part about the majority being compelled to uphold was a cute touch, when coupled with your insightful devastating analysis of the dissent you never read, or didn’t understand.

    JD (dfaa6e)

  46. Dustin, see my previous post. Does the dissent prove that the precedents in the Roberts opinion are in any way invalid? Does the dissent offer any precedents that argue against the Roberts opinion? If it did, I missed them, in which case I would welcome you to quote the part of the dissent I must have overlooked.

    Brent Glines (f1a217)

  47. JD, again, the dissent offers no precedent to the contrary, nor demonstrates that the precedents cited by Roberts are invalid. How can I show what is not present.

    The Roberts opinion offers numerous precedents, and cites a number of accepted legal principles to support his reasoning. All I am asking is that someone demonstrate where either those precedents do not apply, the principles cited are in error, and the reasoning incorrect.

    Brent Glines (f1a217)

  48. Roberts worked hard on most of that dissent before he changed his mind, and it’s only fair that folks read it!

    Dustin (330eed)

  49. The point is more likely which precedent, provides that level of authority under the taxing power, I see South Dakota v. Dole, but that’s an exceedingly narrow thread,

    narciso (ee31f1)

  50. Brent – you are fooling nobody.

    JD (dfaa6e)

  51. Dustin, perhaps he changed his mind upon further study of the precedents cited it the majority opinion. If no one can demonstrate where that opinion is in error, perhaps you all need to reevalute why you believe what you believe.

    Initially, I was not happy with the opinion either, but upon reading it, I can not fault the reasoning. In that case, this is now a political issue that demands a political solution.

    As Ace over at Ace of Spades said days ago, we now need to elect Romney, elect majorities in both the House and the Senate, and repeal the damn thing. That is Plan A. That has ALWAYS been Plan A.

    Brent Glines (f1a217)

  52. That’s what I thought, Brent, you don’t bother to do the work you demand others do.

    Not really a surprise.

    SPQR (26be8b)

  53. btw, Romney’s video handles the different positions incredibly well.

    He didn’t agree with the majority’s opinion, but they have ruled it’s a tax. That’s just the law now. Obamacare’s mandate is a massive tax, and that’s simply the law of the land at this point.

    Dustin (330eed)

  54. That part of the decision, is logically inconsistent, up there with Kelo and the Detainee
    case,

    narciso (ee31f1)

  55. SPQR, when someone shows up demanding people ‘show their work’ after noting they haven’t even bothered to read any argument better than “I don’t like this”, you don’t bend over backwards to accommodate?

    Crazy.

    I’m sure Brent is busily typing his work to answer your reasonable request that he do as he’s demanded others do.

    Dustin (330eed)

  56. SPQR – I showed my work. The Roberts opinion cites numerous precedents, invokes valid legal principles, and uses what I feel to be a valid interpretation of the Constitution. The dissent fails to even mention those precedents, let alone discredit them, and offers no opposing precedent to support its argument. No one here has yet demonstrated otherwise.

    Where have I failed to live up to the expectations I have of others?

    Brent Glines (f1a217)

  57. So is this your final answer;

    http://www.law.cornell.edu/supct/html/91-543.ZS.html

    narciso (ee31f1)

  58. Narciso – I have followed your link, but I fail to see how it applies. What am I missing?

    Brent Glines (f1a217)

  59. The dissent fails to even mention those precedents, let alone discredit them, and offers no opposing precedent to support its argument.

    Brent, I can understand the need to lie to cover for the administration, sort of. But why such easily refutable misrepresentations of fact?

    The Government and those who support its view on the tax point rely on New York v. United States, 505 U. S. 144, to justify reading “shall” to mean “may.” The “shall” in that case was contained in an introductory provision—arecital that provided for no legal consequences—which said that “[e]ach State shall be responsible for providing . . for the disposal of . . . low-level radioactive waste.” 42
    U. S. C. §2021c(a)(1)(A). The Court did not hold that “shall” could be construed to mean “may,” but rather thatthis preliminary provision could not impose upon the oper- ative provisions of the Act a mandate that they did not contain: “We . . . decline petitioners’ invitation to con- strue §2021c(a)(1)(A), alone and in isolation, as a command to the States independent of the remainder of theAct.” New York, 505 U. S., at 170. Our opinion thenproceeded to “consider each [of the three operative provisions] in turn.” Ibid. Here the mandate—the “shall”—is contained not in an inoperative preliminary recital, but inthe dispositive operative provision itself. New York provides no support for reading it to be permissive.
    Quite separately, the fact that Congress (in its ownwords) “imposed . . . a penalty,” 26 U. S. C. §5000A(b)(1),for failure to buy insurance is alone sufficient to renderthat failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to dothe act is unlawful, because it cannot be supposed that theLegislature intended that a penalty should be inflicted for a lawful act.” Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: “If a statute inflicts a penalty for doing an act,the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.” 1 J. Kent, Commentaries on American Law 436 (1826).

    I can’t even say, “nice try, Brent.” It wasn’t; it was a pathetic attempt. Not only does the dissent not “fail to even mention those precedents” it explores them more deeply than Roberts’ superficial treatment of them in order to demonstrate that CJRo is being incoherent in his attempt to rubberstamp this abomination.

    Their treatment of Roberts is so thorough that rather than confront the dissent Roberts has to resort to a lame straw man of his own creation rather than precedent to attempt to support his contention:

    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…

    He, like you, proceeds to fail in a miserable and pathetic manner to make his case.

    Steve57 (7baca9)

  60. See, the decision is such a disaster, that much effort hasn’t gone into exactly it misinterpreted
    and stretched the law beyond breaking point,

    narciso (ee31f1)

  61. ____________________________________________

    We Americans want everyone to have health care but we also want everyone to pay.

    And that is why things like Obamacare can be so pernicious, similar to elaborate, tricky malware in a computer.

    Moreover, people tend to be a bunch of sheeple, easily hoodwinked by the lazy promises and cheap greed offered by feel-good modern-day liberalism, which has been on full display in many countries, the US included, for a few generations.

    The French fell for it recently, and the Spaniards embraced it until not too long ago. Argentinians have rallied around it for over 100 years, and the dynamics evident in urban America — where no matter how bad things get, the same ‘ol, same ‘ol gets elected and reelected — also can be seen in countries like Mexico or Venezuela.

    That’s why dumb ideas and dumb policies (and politicians) have a way of infecting the so-called body politic quite easily.

    I muse about how the government within the past few years has stolen, if you will, even more of our time, making the public push their clocks forward by one hour and convincing much of the populace that Daylight Saving Time is a man-made miracle of creating more sunlight. And ironically enough, when sleep deprivation should be treated as a major health-related problem in an increasingly hectic, fast-paced society (growing unemployment notwithstanding), the legislation in question even runs counter to the current trendiness of fretting about everyone’s health, health, health!!!

    Mark (d27584)

  62. The Roberts opinion cites numerous precedents, invokes valid legal principles, and uses what I feel to be a valid interpretation of the Constitution.

    — Brent likes him some unchecked power of Congress to tax anyone for anything at any time.

    Icy (0eb7f2)

  63. Finally! I commend Steve57 for producing an example I will freely admit that I had overlooked. And, he ‘showed his work’. Bravo. A valid legal argument, at last.

    In response, I will counter with arguments from the Roberts decision, and we can contrast and compare. Permit me a few minutes to prepare my response, so that I may also ‘show my work’.

    Brent Glines (f1a217)

  64. “– Brent likes him some unchecked power of Congress to tax anyone for anything at any time.”

    Like it or not, it does say:

    “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived…”

    spointer (77ac66)

  65. Imdw is back. Yippee.

    Brent – it is abundantly clear you did not read the dissent.

    JD (dfaa6e)

  66. Roberts (the majority) could have decided the case in one page, two at most. The mandate cannot be a penalty, because it does not punish a violation of a law enacted under any of Congress’s enumerated powers, including the Commerce Clause. Let’s see if it’s a tax. Well, there is the income tax. I suppose not spending your money to buy health insurance is a kind of income to you. And then there’s a direct tax. The Constitution does mention it. The Constitution does not say it’s ok or not ok, it just says it will not be imposed without capitation. But since it varies according to income, it could be an income tax, on no income, no capitation necessary.

    Dang, it’s good to be god.

    nk (875f57)

  67. 62.– Brent likes him some unchecked power of Congress to tax anyone for anything at any time.

    Comment by Icy — 7/5/2012 @ 9:17 am

    He’s emulating his role model, CJRo. Just as Roberts ruled on a law not before him, Brent is discussing a dissent that doesn’t exist. No doubt because the dissent that does exist, just as the law that was actually passed, is fatal to both their cases.

    But please note, I did not actually call Brent personally a liar.

    Brent, I can understand the need to lie to cover for the administration, sort of. But why such easily refutable misrepresentations of fact?

    I’m leaving open the possibility that Brent is accurately and in good faith parroting the spin that the people who tell him what to think filled his head with.

    So he’s not necessarily misrepresenting the facts personally. After all, he never said in so many words he read the dissent. And he clearly hasn’t.

    Apparently he depends on other people to do things like “read” for him.

    Steve57 (7baca9)

  68. 63. Finally! I commend Steve57 for producing an example I will freely admit that I had overlooked. And, he ‘showed his work’. Bravo. A valid legal argument, at last.

    In response, I will counter with arguments from the Roberts decision, and we can contrast and compare. Permit me a few minutes to prepare my response, so that I may also ‘show my work’.

    Comment by Brent Glines — 7/5/2012 @ 9:21 am

    I withdraw my previous criticisms. But I do have to admit I’m somewhat amazed that you read the decision and the dissent and came away with the impression that it was the dissent that was light on precedent.

    In fact, it’s the other way around. I was forced to conclude you didn’t actually read the dissent.

    Steve57 (7baca9)

  69. As with wikipedia, it’s important to check the citations, to see if ‘those words mean, what you think they do’ they clearly didn’t

    narciso (ee31f1)

  70. Roberts discusses New York v. United States commencing on page 44 of 193 in the PDF file I linked to, by the way, Brent.

    Steve57 (7baca9)

  71. http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

    The dissent starts at page 127, Brent.

    JD (dfaa6e)

  72. Like it or not, it does say:
    “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived…”
    Comment by spointer — 7/5/2012 @ 9:22 am

    — Sure thing, spointer. You go and tell your boy, Obama, to go ahead and tax us up the ying. And, come November, we all will show him our appreciation.

    Icy (0eb7f2)

  73. Oh, and to help you out further, here’s a link to the opinion in the precedent Roberts relies on so heavily to support his sophistry:

    NEW YORK, Petitioner, v. UNITED STATES et al. COUNTY OF ALLEGANY, NEW YORK, Petitioner, v. UNITED STATES. COUNTY OF CORTLAND, NEW YORK, Petitioner, v. UNITED STATES et al.

    Take your time.

    Steve57 (7baca9)

  74. …here’s a link to the opinion in that provides the precedent Roberts relies on so heavily to support his sophistry…

    Without enough coffee I type English like a third language.

    Steve57 (7baca9)

  75. Like it or not, it does say:
    “The Congress shall have power to lay and collect taxes

    Indeed. The government can raise taxes a great deal. The Court has ruled that Obama has raised taxes enormously.

    And the government can spend. Even without a budget, which hasn’t been passed in ages, they spend spend spend.

    And they can go into debt. The debt ceiling has to be raised soon or we’ll probably face another crisis.

    They have the power, vested in them by voters, to do these things. However, with Obamacare and taxes, I don’t think they were really being all that democratic about it.

    Dustin (330eed)

  76. Is it an unconstitutional penalty, or a tax? For the purposes of anti-injunction, it was a penalty. From that point forward, the linguistic gymnastics begin.

    JD (dfaa6e)

  77. That’s OK. For different legal purposes, a thing can be diffeernt things.

    But for political purposes?

    Romney is now saying that while what Obama did is a tax, what he did in Massachusetts is still a mandate with a penalty because it was done at the state level.

    Sammy Finkelman (c08134)

  78. I love how the leftists are so scared for the tax issue to bite them in the sphincter, that they are still claiming it is an unconstitutional penalty, even when Teh Won sent his Solicitor General into Court to argue that it was a tax. Commerce Clause? Bzzzzzzzzzzt. Necessary and proper? Bzzzzzzzzzt

    JD (dfaa6e)

  79. ______________________________________________

    You go and tell your boy, Obama, to go ahead and tax us up the ying.

    In the meantime, he has given a half billion dollars to the IRS and one-billion bucks to the Department of Health and Human Services to begin the implementation of Obamacare. That alone makes me very contemptuous of him and what he stands for, regardless of his mandates, regardless of whether the correct label is tax or penalty.

    I guess Americans should all quit their day jobs and become tax agents — or find employment with the federal government — because that’s the only real winners in the steaming pile approved by the Supreme Court.

    If Obamacare isn’t upended, then the only appropriate or logical response is for more people throughout the US to acquire the traits of the current Secretary of the Treasury, who’s also head of the IRS. That is, to give serious consideration to cheating on one’s taxes, or certainly asking whether we as a society should stop frowning upon those who do. After all, if it’s good enough for the tax-and-spend politicians in the current White House, then it should be good enough for the public in general.

    Mark (d27584)

  80. .47 JD, again, the dissent offers no precedent to the contrary, nor demonstrates that the precedents cited by Roberts are invalid. How can I show what is not present.

    The Roberts opinion offers numerous precedents, and cites a number of accepted legal principles to support his reasoning. All I am asking is that someone demonstrate where either those precedents do not apply, the principles cited are in error, and the reasoning incorrect.

    Comment by Brent Glines — 7/5/2012 @ 8:39 am

    This is the amazing part Brent. The dissent does exactly what you claim it does not do.

    Moreover, Roberts does not “show his work.” He cites the case as if it supports his opinion, but does not actually show where it does. While the dissent quotes chapter and verse from the opinion why Roberts is wrong.

    Roberts does not attempt to refute the argument the dissent is making other than to insert a footnote on page 44 referring back to the above case. Which is weak.

    The opinion and the dissent stand or fall on their own. The dissent has the better argument, as well as the better supported opinion.

    I suggest you read New York v. United States if you’re going to try to make the case it supports Roberts’ opinion. The dissent certainly did, and it doesn’t.

    Steve57 (7baca9)

  81. Comment by Brent Glines — 7/5/2012 @ 8:22 am
    JD, the Government made a specific argument that if the mandate could not be upheld under the Commerce Clause, the penalty should be upheld under the enumerated power under the Constitution to Congress to levy taxes. So yes, it was before the court for consideration, and as I read the opinion, the court was compelled to sustain that argument.
    The Court held unanimously that litigation over the validity of the individual mandate is not precluded by the Anti-Injunction Act, because the PPACA labels the individual mandate as a “penalty” instead of a “tax”, which prevents it from being treated as a tax under the Anti-Injunction Act.
    — Good news! You ARE allowed to sue BECAUSE it’s NOT a tax.

    If you read the opinion, on what grounds do you find that decision to be in error?
    By a vote of 5–4, The Court upheld the individual mandate component of the PPACA as a valid exercise of Congress’s power to “lay and collect taxes”
    — Bad news! You’re going to LOSE your lawsuit BECAUSE it IS a tax.

    Icy (0eb7f2)

  82. That’s OK. For different legal purposes, a thing can be diffeernt things.

    Not when it relies on the self-same “label,” the use of which is “fatal” for one purpose when Roberts needs it to be set in stone, unimportant as an impediment to reaching a fore ordained conclusion when it needs to be elastic.

    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 the sophists.

    Steve57 (7baca9)

  83. “However, with Obamacare and taxes, I don’t think they were really being all that democratic about it.”

    It just passed the house and senate twice. The latter once with a supermajority. It was debated for years, if you include its pedigree proposals, and was signed by the president. That’s all also in the constitution — minus the senate supermajority requirement, of course.

    spointer (77ac66)

  84. So, under what reasoning does the Roberts opinion interpret that the penalty described in ACA law may actually be considered a tax? That is the objection noted in the portion of the dissent quoted by Steve57.

    The following precedents are fundamental to the Roberts opinion:

    Parsons v. Bedford, 3 Pet. 433, 448–449 (1830), where Roberts quotes Justice Story saying, “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”

    Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion), with a quote from Justice Holmes saying, ““[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

    So here we have a recognized legal principle that has been in force in this country for 180 years, which as Roberts puts it is, “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning thatdoes not do so.”

    Are these precedents in any way invalid? Has the legal principle involved been misapplied in this case? Can anyone here explain to me why conservatives should suddenly want the courts to ignore this principle based upon clear long standing precedent?

    The Government makes this express argument, so the Court is compelled to rule upon it. “Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.””

    In its review, the Court must determine what level of scrutiny must be applied. Roberts cites Crowell v. Benson, 285 U. S. 22, 62 (1932), and determines that if the court finds only that it is “fairly possible” to interpret the penalty may be considered a tax that is permitted under the enumerated power granted to the Congress to levy taxes, that is sufficient to sustain the argument. Is this precedent in any way invalid? Should it not have been applied or followed?

    Is it “fairly possible” to interpret the penalty as a tax? From the Roberts opinion, “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. United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953).”

    Seems “fairly possible” to me.

    Further, the Roberts opinion addresses directly the objection Steve57 quotes from the dissent. “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.”

    To support this argument, Roberts cites Drexel Furniture, 259 U. S., at 38. In that case, the Court ruled that the Anti-Injunction Act was applicable, since Congress expressly called the payment a tax, but at the same time the Court found that “although labeled a tax, [it] was not in fact authorized by Congress’s taxing power.” This is the converse of this case, but even so, if it the Drexel decision is valid, then with respect to the Anti-Injunction Act, Roberts decision is equally valid. I think that is a feature of how the Anti-Injunction Act is written. If Congress has heartburn with that interpretation, they can always amend the Anti-Injunction Act.

    Roberts cites further precedent. “In the License Tax Cases, for example, we held that federal licenses to sell liquor and lottery tickets—for which the licensee had to pay a fee—could be sustained as exercises of the taxing power. 5 Wall., at 471. And in New York v. United States we upheld as a tax a “surcharge” on out-ofstate nuclear waste shipments, a portion of which was paid to the Federal Treasury. 505 U. S., at 171.”

    Roberts also demonstrates by precedent that the label used to describe a payment does not control how the law should be interpreted. “We thus ask whether the shared responsibility payment falls within Congress’s taxing power, “[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287, 294 (1935); cf. Quill Corp. v. North Dakota, 504 U. S. 298, 310 (1992) (“[M]agic words or labels” should not “disable an otherwise constitutional levy” (internal quotation marks omitted)); Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 363 (1941) (“In passing on the constitutionality of a tax law, we are concerned only with its practical operation,not its definition or the precise form of descriptive wordswhich may be applied to it” (internal quotation marksomitted)); United States v. Sotelo, 436 U. S. 268, 275 (1978) (“That the funds due are referred to as a ‘penalty’. . . does not alter their essential character as taxes”).

    Roberts further addresses the argument raised in the dissent regarding penalties.

    In distinguishing penalties from taxes, this Court has explained 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 as punishment 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. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26,2012).”

    So rather than being a penalty, we are offered a choice. Buy health insurance or pay a tax. No one likes paying taxes, but the way this payment is not defined in the ACA in a way that is typical for a penalty, in spite of labels to the contrary. For example, “The Act, however, bars the IRS from using several of its normal enforcement tools, such as criminal prosecutions and levies. §5000A(g)(2). And some individuals who are subject to the mandate are nonetheless exempt from the penalty—for example, those with income below a certain threshold and members of Indian tribes. §5000A(e).” I am unaware of any law for which there is a criminal or civil penalty where you are exempt from that penalty on the basis of income. That, if nothing else, would argue that is is “fairly possible” to interpret the payment as a tax, would it not?

    Finally, Steve57 contends “Roberts has to resort to a lame straw man of his own creation rather than precedent to attempt to support his contention.” Roberts has already cited applicable precedent, and offers this as an example to illustrate how the precedent already cited applies. If this is a straw man argument, that implies the argument is easily knocked down, so I’d like Steve57 to explain his reasoning and justify why this example would NOT be proper as an exercise of Congress’s taxing power.

    I apologise for the length of my post. This is not a simple subject that can be argued on Twitter.

    Brent Glines (f1a217)

  85. ==Patterico, I’ve been having this argument on several websites, and have been annoying people on Facebook since the decision was handed down.==

    Yes, Brent, we have seen your name appear on several websites in the capacity you self- describe. So, why do you do it? It seems rather important to you, but why is challenging people here and elsewhere to have an argument with you about Roberts’ logic a productive use of yours or anyone else’s time right now with the election so close at hand? You said above @35 you are “less than pleased with the outcome”. That’s pretty vague, no? Can you be specific in what ways are you “less than pleased”? Have you popped in on some left leaning blogs to engage/annoy them as well, so you can explain/argue why you are “less than pleased” with the SC outcome? Or are you just mainly concerned from the right side of the table?

    No hurry to respond to me, I’m on lunch break and won’t be able to check back until later.

    elissa (472d0f)

  86. Brent wrote:

    So, under what reasoning does the Roberts opinion interpret that the penalty described in ACA law may actually be considered a tax? That is the objection noted in the portion of the dissent quoted by Steve57.

    The following precedents are fundamental to the Roberts opinion:

    Parsons v. Bedford, 3 Pet. 433, 448–449 (1830), where Roberts quotes Justice Story saying, “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”

    And the dissent countered:

    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.

    Moving on:

    Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion), with a quote from Justice Holmes saying, ““[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

    And the dissent eviscerated Roberts contention that he is merely interpreting a statute:

    In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

    Roberts was not, as Brent contends, merely applying precedent. He was going well beyond them and twisting them beyond recognition in order to do so.

    As far as this goes:

    Finally, Steve57 contends “Roberts has to resort to a lame straw man of his own creation rather than precedent to attempt to support his contention.” Roberts has already cited applicable precedent, and offers this as an example to illustrate how the precedent already cited applies. If this is a straw man argument, that implies the argument is easily knocked down, so I’d like Steve57 to explain his reasoning and justify why this example would NOT be proper as an exercise of Congress’s taxing power.

    The reasoning is simple. His strawman is about what Congress might do. It bears no relationship to what Congress did do. Roberts tries to weave together a story that this is only about “labels.”

    He then produces a strawman that supports his point, a strawman that is designed from the outset that shows that “tax” and “penalty” could be used interchangeably. But only if you set out from the start to write a fable to prove the point.

    That bears no relationship to how the words are used in the law Congress wrote, and the very structure of that law (and Congress structured that law in a totally different way than Roberts structures his strawman) shows that Congress was not using the term incorrectly as a mere “label” that can easily be replaced by tax. Quite simply, Congress didn’t just call this a penalty. They structured the law in order to impose it as a penalty, not as a tax to produce revenue. If this penalty works as Congress intends, as they’ve stated, as the law is written, they will not see a dime out of this “tax.” Which means it’s not only not called a “tax,” it is not functionally a tax.

    I’ve already cited one example from the dissent illustrating that point. There are others:

    …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.

    Look, Brent, you can’t possibly be reading the dissent. The dissent discusses nothing except precedent, canons of interpretation, and the PPACA as written. And how Roberts is ignoring all of the above while pretending to consider them.

    I’m not going to play anymore. I’m not going to keep rewriting the dissent so you can read it here instead of at the link. They refute Roberts’ entire argument.

    Steve57 (7baca9)

  87. @elissa – No problem, happy to respond.

    I’m an engineer. I’m hardwired to respect an argument that is logical and well reasoned, and I find the Roberts opinion to be both. Conversely, it drives me up the wall to read arguments that are neither logical nor well reasoned, and where I have posted objections, I find the arguments to be neither logical nor well reasoned. In that way, I suppose I am inflicted with OCD to a certain extent.

    I am less than pleased with the result because prior to the decision, I thought the Commerce Clause objection was a slam dunk, and argued as much just as vigorously. No one was more surprised than I at the Roberts opinion, and initially, I also thought it was wrongly decided. Upon reading both the Roberts opinion and the dissent (yes, I read the dissent, in spite of what some here contend), I found Roberts to be the more pursuasive. I still don’t like the outcome, but I can argue with neither the logic nor the reasoning of the Roberts opinion.

    I guess I’m just a sucker for a good argument. Must be the engineer in me.

    So, I now contend that this is a political issue, corrected by political means. Elect fiscally conservative Republicans, and repeal the damn thing.

    Plan A.

    Brent Glines (f1a217)

  88. Once more for emphasis, although I don’t know how this could be more clear at this point. Brent writes:

    The following precedents are fundamental to the Roberts opinion:

    Parsons v. Bedford, 3 Pet. 433, 448–449 (1830), where Roberts quotes Justice Story saying, “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”

    Roberts never discusses the terms of the act that render his interpretation invalid. The dissent does. Roberts avoids by discussing a hypothetical that is set up using entirely different terms as if that discussion has any bearing on reality.

    Brent, the dissent eviscerated Roberts. He is not applying precedent. He is deliberately perverting it. He proceeds as if there is not counter-argument because his opinion is crap. He cites precedent as if it supports his view, and the dissent shows how the very words of the precedent he cites (I bolded one example) in reality undermine his whole house-of-cards of an opinion.

    I understand why Roberts is deliberately avoiding the dissent. To acknowledge the substance of the dissent is to admit there’s no substance to his opinion. In the face of the dissent, his opinioon is unsupportable. His solution is to therefore not face it. Much the same way Obama can not face the fact that ObamaTaxaPaloozaCare survives only because it was ruled a tax. It’s fatal to his position.

    I can understand why all these people are refusing to face the reality of the vacuousness of the opinion and how the dissent nailed the dishonesty to the wall.

    The only question left is, why are you?

    Steve57 (7baca9)

  89. Steve57, conversly one could argue that the Roberts opinion demolishes the dissent. That depends upon which argument you find the most persuasive, and that is a matter of opinion, upon which we obviously disagree.

    Remember, as Roberts himself says, “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one.” The dissent argues from the point of “most natural”, which is most natural, but according to precedent, it is improper to apply a level of scrutiny more exacting that “fairly possible”, which I think can be easily satisfied.

    So we have a court decision over which I think people of good faith can reasonably disagree. Under our system of ‘checks and balances’ we have a clear remedy. The Congress can amend the ACA in a way that rectifies all disagreement, or under my preferred solution, the law can be repealed, and the decision rendered moot.

    Brent Glines (f1a217)

  90. Roberts’ argument is more compelling because he does not force himself to be bound to the actual meanings of words, nor the text of the law in front of him. Fiction is always more compelling.

    JD (dfaa6e)

  91. Steve57, conversly one could argue that the Roberts opinion demolishes the dissent. That depends upon which argument you find the most persuasive, and that is a matter of opinion, upon which we obviously disagree.

    Brent, the difference is you can cite no evidence where Roberts “demolishes” the dissent. While I can cite evidence to the contrary.

    Remember, as Roberts himself says, “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one.” The dissent argues from the point of “most natural”, which is most natural, but according to precedent, it is improper to apply a level of scrutiny more exacting that “fairly possible”, which I think can be easily satisfied.

    To make the claim that you do, you have to be reading the Roberts decision in complete isolation. The dissent is NOT arguing from the “most natural” POV. It cites the actual construction of the law to show that Roberts contention that his interpretation is “fairly possible” is unbelievable and flies in the face of reality.

    “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”

    The dissent pounds the message home that the very act itself renders Roberts interpretation “utterly implausible,” not as Roberts and you baselessly assert “fairly possible.”

    Again, you are not confronting the substance of the dissent. Why?

    Steve57 (7baca9)

  92. SF: The only dispute on the Supreme Court was whether or not you could construe the penalty as a tax if Congress didn’t actually characterize it that way. They all agreed Congress could have written the law that way and done exactly the same thing

    18. Comment by Steve57 — 7/4/2012 @ 5:06 pm

    No, Sammy, they didn’t all agree to any such thing. The closest the four joint dissenters came to that was when they said:

    Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty.

    But since the statutory language couldn’t support the government’s argument that this was a tax bill, they never examined whether or not this was one of those cases.

    But they said:

    The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

    So there, they said that Congress indeed had the power, because if it didn’t have that power, whether Congress had the power would also have been an issue.

    Now that could be in there because one or more of the dissenters (Kennedy?) didn’t see a problem here, although perhaps Scalia and others did. I think another problem was, that Kennedy, say, would have held a law could be drafted where the penalty was replaced by an income tax surcharge and the mandate was called an exemption.

    The dissent said the question of whether the type of tax Roberts’ described this as being was an unconstitutional direct tax was not properly handled by the court.

    But most logically this could be an income tax and with an income tax there is no question about this being a direct tax. The Supreme Court was maybe going to reverse itself on its 1894 ruling that the income tax was unconstitutional, but in any case it was superceeded by the 16th Amendment.

    And they did say there was a question (not properly handledt tax.

    Here we have the BIG MYSTERY.

    Sammy Finkelman (c08134)

  93. “Again, you are not confronting the substance of the dissent. Why?”

    I thought I had made that clear from my long post, but perhaps not.

    As I see it (correct if you think I am mistaken), the chief objection in the dissent on this point is “But we cannot rewrite the statute to be what it is not.”

    Yet the statute has been in no way rewritten. The statute in exactly the same manner as before, but an interpretation has been applied that is “fairly possible” under which payment can be considered a tax.

    Further, this statment from the dissent (“we cannot rewrite the statute”) is false on it’s face. Roberts cites precedents where the court has done EXACTLY that, where taxes were ruled to be penalties, and penalties and fees were ruled to be taxes. Precedents that ruled that the label applied need not be the controlling factor, but where the form and function is determinate.

    That is the chief reason I find the dissent to be unpersuasive on this point.

    Brent Glines (f1a217)

  94. *not properly handled by the court (fkly by night briefings etc)

    The big mystery here, that I don’t know anybody else has commented on is Why didn’t Roberts CALL THE PENALTY AN INCOME TAX??

    What was bothering him about that? There’s no clue in the dissent. Was there some argument that simply got omitted from all the court opinions?

    Roberts instead described this as a tax on NOT having a certain kind of health insurance policy.

    The dissenters indeed raised the question of whether or not that would be a direct tax, with Roberts arguing that the only thing could be a direct tax was what was specified in a very early court decision.

    But I think at least some of them conceded the point it could be an income tax and I don’t know what’s going on here.

    What was the problem for Roberts?

    The only difference between this and the regular federal income tax is that Congress specified that no criminal penalties would apply to not paying the tax penalty. But so what? You could have a surtax. You could penalize failure to pay less. You could have two separate income taxes.

    What exactly was the problem?? Why did Roberts assume or agree that this could not be fairly characterized as an income tax????

    Something to do with the language of the bill?

    Sammy Finkelman (c08134)

  95. So there, they said that Congress indeed had the power, because if it didn’t have that power, whether Congress had the power would also have been an issue.

    No, they simply said that wasn’t the issue. And that’s because the first issue is whether or not this was an attempt to exercise this power.

    Since it wasn’t, it never became the issue.

    The rest are your words, Sammy, not the court’s.

    Steve57 (7baca9)

  96. SF, I think it is an income tax. The requirement to pay the tax is determined, among other things, by income. The trigger to levy the tax is not buying insurance. Perhaps Roberts didn’t call it an income tax was that the Federal Income Tax liabiltiy is calculated using a percentage of your income, reduced by deductions, and subject to the arcane limitations we have all come to know and love, while this tax is calulated as a fixed amount.

    I think it is incorrect to say that there are no penaties associated with not paying the tax. There are no penalties imposed when the tax is first imposed, just as there are no penalties imposed for Federal Income Taxes for which you are liable prior to April 15. Once you are delinquent on your taxes, either your Federal Income Taxes or this tax imposed for not having health insurance, I think that the full force of the IRS will be brought to bear.

    Brent Glines (f1a217)

  97. I see Brent you are continuing to ignore the evidence.

    That’s OK. Roberts did too. As well as the substance of the precedents he cited. As well as canons of interpretation.

    You continue to argue against the dissent you wish had been written. And avoiding the one that was written.

    Yet the statute has been in no way rewritten. The statute in exactly the same manner as before, but an interpretation has been applied that is “fairly possible” under which payment can be considered a tax.

    Further, this statment from the dissent (“we cannot rewrite the statute”) is false on it’s face. Roberts cites precedents where the court has done EXACTLY that, where taxes were ruled to be penalties, and penalties and fees were ruled to be taxes. Precedents that ruled that the label applied need not be the controlling factor, but where the form and function is determinate.

    I imagine you believe you’re serving your cause by repeating the words “compelling, compelling, compelling,” at the same time contradicting yourself from one paragraph to the next.

    And citing what is determinate, when the only ones discussing form and function were the dissenters as that was a subject Roberts studiously avoided as it completely undermines his argument, while not realizing you’re shooting yourself in the foot.

    So I don’t care if you can maintain the public pretense that Roberts decision was rational or well reasoned. You demonstrate you’re incapable of anything more then self-contradictory counter-productive gobbledygook. I imagine you read what you write and can convince yourself that nonsense you just put out on the internet where it will exist forever was rational and well-reasoned.

    It isn’t.

    On the plus side, I do believe you’re an engineer.

    CITY IN SHOCK – 32 killed in Hyatt collapse as tea dance turns to terror

    Steve57 (7baca9)

  98. Further, this statment from the dissent (“we cannot rewrite the statute”) is false on it’s face. Roberts cites precedents where the court has done EXACTLY that, where taxes were ruled to be penalties, and penalties and fees were ruled to be taxes. Precedents that ruled that the label applied need not be the controlling factor, but where the form and function is determinate.

    Again for emphasis, I doubt you realize it Brent but you just admitted that I and the four justices in dissent are right. And that Roberts was wrong, since he went to great pains to try to create the illusion that he was not rewriting the statute but proposing a “fairly possible” reading of the statute as it was written.

    I’m glad to see you agree with me, Kennedy, Scalia, Alito, and Thomas that he failed and instead rewrote the statute. While arguing that wasn’t what he was doing.

    I’m sure you still find the Roberts opinion compelling despite the fact you just admitted it was unconstitutional. Without realizing that was what your were doing.

    Steve57 (7baca9)

  99. ‘Rewritten’ is a misnomer, which leads to confusion. The court never rewrites anything, which is the point I was trying to make in my first example.

    It would have been more correct to say that the dissent is mistaken when it says, in effect, “The court cannot interpret the statute to be something it is not.” THAT is what is false upon its face. The court interprets things all the time. That is its function.

    The dissent is imprecise in its language when it speaks of “rewriting” statutes, which leads to imprecision when arguing about the dissent. However, HAD the dissent stated that the court cannnot make interpretations of the statute, everyone would have fallen down laughing, crying “What utter nonsense”, so I suppose that might explain their choice of words.

    Brent Glines (f1a217)

  100. Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion), with a quote from Justice Holmes saying, ““[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

    So here we have a recognized legal principle that has been in force in this country for 180 years, which as Roberts puts it is, “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

    — It might be difficult to fathom, but even Oliver Wendell Holmes may have been WRONG in the manner by which he applied his principle of “judicial restraint”. If a court goes out of its way to interpret a law as constitutional, despite the glaring fact that the plain language of the law as written is Unconstitutional, then how does the system of checks and balances work? How can overreach by the Legislative Branch be checked if the Judicial Branch does not engage in due diligence?

    I don’t know. Perhaps someone should ask Rubber-Stamp Roberts.

    Icy (0eb7f2)

  101. I see you’re piling nonsense upon nonsense as you try to correct your previous nonsense, all the while misrepresenting (if you bothered to read it all) what the dissent actaully said.

    I thought I had made that clear from my long post, but perhaps not.

    You did. You made yourself crystal clear. You have an agenda and you don’t care about evidence. You’ll produce none of your own, since there is none to produce, demand it of others, ignore it as if it doesn’t exist, contradict yourself, whatever it takes, to promote a falsehood as if it had any relationship to reality.

    In other words, you’re the perfect ObamaTaxaFinaPaloozaCare supporter.

    Got it. Don’t worry. You made yourself clear. You continue to make yourself even clearer.

    YOU HAVE NO EVIDENCE TO SUPPORT YOUR POSITION, CAN CITE NONE, AND YOU DON’T CARE.

    Steve57 (7baca9)

  102. Icy, I suppose OWH could have been wrong, but since that principle has been upheld for 180 years, that is a tough argument to make. To address your other complaint, it is not true that the plain language of the law as written is unconstitutional. That is the point. Under one interpretation (commerce clause) the payment is unconstitutional. Under an alternative interpretation (tax)the payment is constitutional.

    As far as checks and balances go, we have the check and balance afforded to the Congress to amend or repeal the law. If the law is either rewritten to correct the dual interpretation, or repealed to remove it entirely, that solves the problem, does it not?

    Brent Glines (f1a217)

  103. YOU HAVE NO EVIDENCE TO SUPPORT YOUR POSITION, CAN CITE NONE, AND YOU DON’T CARE.

    Well sure I have, and I didn’t even have to resort to the caps lock key to make my argument more persuasive (that doesn’t work, just so you know).

    You disagree with the evidence I have offered, and that is fine. But that doesn’t mean that none was offered.

    Brent Glines (f1a217)

  104. “In other words, you’re the perfect ObamaTaxaFinaPaloozaCare supporter.”

    Another hard argument to support, since I favor repeal of the ObamaCare in it’s entirety.

    Brent Glines (f1a217)

  105. You disagree with the evidence I have offered, and that is fine. But that doesn’t mean that none was offered.

    Yes, it means none was offered. You’ve offered no evidence. And I’ve asked for it.

    Simply citing case numbers as if they support an opinion doesn’t constitute evidence, which is all Roberts does. Neither you nor Roberts can explain hos the precedents in those cases support his position, while the dissent is scrupulous in explaining how Roberts is torturing precedents that counter his opinion in order to pretend they support his interpretation of the language, as in this instance:

    New York provides no support for reading it to be permissive.

    You can pretend that Roberts’ contentions weren’t refuted when the dissent addressed them and cited the language actually in the case law that refutes what Roberts says about those opinions.

    And you can pretend that Roberts “demolished” the dissent when all he did was ignore the fact that the dissent addressed and disposed of his baseless assertions.

    And you can pretend that you’ve provided evidence, when you’ve done no such thing.

    Just like you are now pretending that in comment #93 you didn’t inadvertently admit I’ve been right about this all along. That the dissent got it right, Roberts got it wrong.

    And I’ll keep linking to the actual sources to show that’s all you’re doing; pretending.

    You really ought to caught your losses and quit at this point. The only one who thinks you’ve made a compelling in favor of Roberts is you. But if you want to continue scoring own goals and make a compelling case that Roberts got it wrong, please proceed exactly as you are.

    Steve57 (7baca9)

  106. “Simply citing case numbers as if they support an opinion doesn’t constitute evidence, which is all Roberts does.”

    Isn’t that exactly what you’ve offered from the dissent? It that invalidates my argument, does that not also invalidate yours?

    With respect to comment #98, by which you assert that somehow I admitted something, read comment #99.

    The dissent argues that the court cannot interpret statues, or something. The precedents I provided in comment #93 clearly demonstrates that the court can and does interpret statutes to rule that court has indeed previously ruled that what Congress has deemed a tax is in fact a penalty, and what had been deemed a fee or a penalty was actually a tax, which is exactly what the Roberts opinion has done.

    In which case, I’m failing to see how I ‘admitted’ anything that in any way disagrees with my argument. Can you clarify?

    Brent Glines (f1a217)

  107. The dissent argues that the court cannot interpret statues, or something.

    They do no such thing

    dual interpretations

    This is where things start going poorly for you.

    JD (dfaa6e)

  108. I am beginning to understand why you enjoyed the majority position so much.

    JD (dfaa6e)

  109. “dual interpretations”

    Explain.

    Brent Glines (f1a217)

  110. Icy, I suppose OWH could have been wrong, but since that principle has been upheld for 180 years, that is a tough argument to make.
    — It is one thing to say that the SCOTUS should not go out of its way to find a law unconstitutional, and quite another to say that the Court should go out of its way to find a law constitutional. The former involves viewing the legislation with eyes wide open; the latter requires the use of equivocation.

    To address your other complaint, it is not true that the plain language of the law as written is unconstitutional. That is the point. Under one interpretation (commerce clause) the payment is unconstitutional. Under an alternative interpretation (tax)the payment is constitutional.
    — Do you not see a problem with this statement? that you believe two opposing interpretations of “the plain language of the law as written” are even possible? This is what you, and the Chief Justice, got wrong. The “alternative interpretation” is a FALSE interpretation. Just because Roberts said it doesn’t make it true.

    As far as checks and balances go, we have the check and balance afforded to the Congress to amend or repeal the law.
    — So you’re saying what . . . the SCOTUS should never rule a law to be unconstitutional? We should just trust Congress because it’s full of lawyers and they would never try to pass a bill that was in clear violation of the Constitution?

    If the law is either rewritten to correct the dual interpretation, or repealed to remove it entirely, that solves the problem, does it not?
    — And if the votes aren’t there, then what? We just sit back, throw up our hands and say ‘Oh well, the “Aye’s” say that it’s good and legal; so, constitutional or not, we’re stuck with it’? We are sup

    Icy (0eb7f2)

  111. Icy, I suppose OWH could have been wrong, but since that principle has been upheld for 180 years, that is a tough argument to make.
    — It is one thing to say that the SCOTUS should not go out of its way to find a law unconstitutional, and quite another to say that the Court should go out of its way to find a law constitutional. The former involves viewing the legislation with eyes wide open; the latter requires the use of equivocation.

    To address your other complaint, it is not true that the plain language of the law as written is unconstitutional. That is the point. Under one interpretation (commerce clause) the payment is unconstitutional. Under an alternative interpretation (tax)the payment is constitutional.
    — Do you not see a problem with this statement? that you believe two opposing interpretations of “the plain language of the law as written” are even possible? This is what you, and the Chief Justice, got wrong. The “alternative interpretation” is a FALSE interpretation. Just because Roberts said it doesn’t make it true. Majority opinions can still be wrong.

    As far as checks and balances go, we have the check and balance afforded to the Congress to amend or repeal the law.
    — So you’re saying what . . . the SCOTUS should never rule a law to be unconstitutional? We should just trust Congress because it’s full of lawyers and they would never try to pass a bill that was in clear violation of the Constitution?

    If the law is either rewritten to correct the dual interpretation, or repealed to remove it entirely, that solves the problem, does it not?
    — And if the votes aren’t there, then what? We just sit back, throw up our hands and say ‘Oh well, the “Aye’s” say that it’s good and legal; so, constitutional or not, we’re stuck with it’? We are supposed to have recourse to the courts when other means of resolution (in this case, the debate that was squelched by Ms. “We have to pass it so you can see what’s in it”) have failed.

    Icy (0eb7f2)

  112. You claim dual interpretations, not I. Congress passed a law with the words they chose and voted on – penalties. They chose to not place them under the section on revenues. The majority came in and chose to call a platypus an aardvark, because names are just labels and they are both really just cute furry little critters.

    JD (dfaa6e)

  113. The dissent argues that the court cannot interpret statues, or something.

    This is an outright falsehood, to be charitable.

    JD (dfaa6e)

  114. Apologies. Double posting blamed on my iPhone’s “alternative interpretation” of what buttons my fat thumbs struck on the on-screen keyboard.

    Icy (0eb7f2)

  115. There are dual interpretations of submit comment, Icy – 1) submit comment, and 2) go dwarf tossing.

    JD (dfaa6e)

  116. An Irony about citing Blodgett;

    So far as the Revenue Act of 1924 undertakes to impose a tax because of the gifts made during January, 1924, it is arbitrary and invalid under the due process clause of the Fifth Amendment.

    The CHIEF JUSTICE, Mr. Justice VAN DEVANTER, and Mr. Justice BUTLER concur in this opinion.

    narciso (ee31f1)

  117. “[It’s] quite another to say that the Court should go out of its way to find a law constitutional”

    The court did not go out of it’s way to find the law Constitutional. The Government argued specifically that if the mandate could not be upheld under the Commerce Clause, it should be upheld as a tax. Since the government put the argument forward, the Court ruled on it. That is hardly going “out of it’s way”.

    “Do you not see a problem with this statement?”

    No. I’m sure Steve57 will get his knickers in a bunch again over this again, but according to precedent it only needs to be “fairly possible” to interpret the payment as a tax. The reason for this is that the court is justifiably reluctant to declare a statute unconstitutional if a “fairly possible” argument can be made to preserve it. That permits the Congress to apply a definitive solution, if there is support in Congress to do so. That is exactly where we stand now. Instead of 9 people deciding to overthrow a law where an argument can be made that it is “fairly possible” that is is in fact Constitutional, now you have 435 Representative and 100 Senators, directly elected by the public, who will determine if the decision by the Court to uphold the law will stand, or if the law should indeed be struck down.

    I’d rather have 535 people make that decision than to have 9 people make it.

    “…the SCOTUS should never rule a law to be unconstitutional?” Not at all. I initially thought that it should be struck down under the Commerce Clause. But I now recognize that a “fairly possible” argument can be made to uphold the law as a tax, so according to my previous argument, I want the Congress to have the final word on it.

    “And if the votes aren’t there, then what?”
    Then the democratic process has been upheld, and by majority vote, there is insufficient support to strike down the law.

    As I have said elsewhere, I think the problem for conservatives is that we got lazy. We thought we had a slam dunk on this (I did), and that all we had to do is push the “I WIN” button, and the court would strike down the law for us.

    That turns out not to be the case. So now we have to get to work and repeal the law, don’t we?

    Brent Glines (f1a217)

  118. We?!?!?!?!?!?!

    JD (dfaa6e)

  119. You can see the interesting context that Blodgett
    can be seen, vis a vis, this statute;

    narciso (ee31f1)

  120. maybe we should go on a hunger strike to where we all have to go to the hospital and then food stamp will say omg my law is making everybody sick I am sooo sorry you guys it’s all my fault I’m an idiot please send me a bill to repeal this stupid idea and I promise I’ll sign it right away

    then everyone can have a sammich

    happyfeet (3c92a1)

  121. Did Roberts restrict himself only to what the government proposed?

    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.

    Sammy Finkelman (d22d64)

  122. “118. We?!?!?!?!?!?”

    If you don’t want to join me in working to repeal the law, that is your business, JD. Believe it or not, I am on your side.

    Brent Glines (f1a217)

  123. “121. Did Roberts restrict himself only to what the government proposed?”

    The government argued that the law be upheld under the enumerated Congressional power to tax. Roberts sustained that argument. So I would say that the answer to your question is ‘yes’.

    Brent Glines (f1a217)

  124. Specially, in light of the Revenue Act of 1924, which is the complete converse of the ACA

    narciso (ee31f1)

  125. Roberts did for Obama, Reid, and Pelosi what they never had the political will, or desire to do. They still don’t, hence their continued refusal to call it a tax. They are still asserting it is an unconstitutional penalty. Had they chosen to call it a tax it would have never passed.

    JD (dfaa6e)

  126. 125.”[Obama, Reid, and Pelosi] are still asserting it is an unconstitutional penalty. Had they chosen to call it a tax it would have never passed.”

    Which gets us back to the original post. As Patterico agrees, Romney has a perfectly defendable argument. Now that the Court has ruled that the payment is a tax, it’s a tax, regardless of what Obama, Reid, and Pelosi might say. All the more reason to elect Republican majorities Nov 2012, give Congress the final say, and repeal it. If the American people don’t WANT this tax, that is the way to get rid of it.

    Brent Glines (f1a217)

  127. Concern troll is concerned.

    SPQR (26be8b)

  128. But didn’t he tell us, that he thought the Commerce Clause rationale would hold;

    narciso (ee31f1)

  129. 125- pronoun ambiguity anyone? “They” keep asserting it is an unconstitutional penalty? Who is they? Obama? Obama is claiming his own legislation is unconstitutional? You’re smrt.

    tye (a1a31b)

  130. Comment by Brent Glines — 7/5/2012 @ 12:16 pm

    SF, I think it is an income tax.

    That’s exactly what it is (or can be interpreted to be, without changing a single thing that Congress enacted)

    But Roberts didn’t call it that.

    The requirement to pay the tax is determined, among other things, by income. The trigger to levy the tax is not buying insurance.

    Well one of them.

    The gist of the provisions seem to be this:

    In 2014 we get a small penalty, just to get people filling out all these forms, and getting the insurance or applying for Medicaid..

    In 2016, when it kicks in, it is:

    Nothing if you are not required to file an incoem tax return, then, for a single individual adult, $695, till the $695 drops down to 2.5% of income (at $27,800) then 2.5% of income till you reach 60% of the average yearly premium for the required health insurance, which is being estimated, using rose-colored glasses, at about $4,800 a year, which means therefore till the surtax reaches 2,880, which it should reach at $115,200 of income. The taxable amount, let alone the tax rate, never rises any more for the upper 1% or 2% and steadily diminishes as a percentage of income. This tax apoplies for every person on a return, except that dependents unde rthe age of 18 count as half, and the maximum tax in any return is 3 times the rate for a single individual.

    The main exemptions are in two categories as follows:

    (Scalia et al argued the fact there are two different klists as an indication it is not a tax)

    1. People with religious objections, or who participate in a “health care sharing ministry”
    (For instance, Christian Scientists who object to health care, or Roman Catholic clergy who object to coverage of birth control and abortion for themselves, or Scientologists, who object to mental illness coverage, who can separately insure)

    2) People not lawfully present in the United States (who otherwise would be taxed but couldn’t get the health insurance)

    3) People who are incarcerated (since their jailers are responsible and they niot eligible for Medicaid) What I don’t understand is why that is not variety of coverage.

    Also exempt are:

    1) People who are not required to file an incoem tax retuirn, as I said before.

    2) People who are members of an Indian tribe (because of treaties?)

    3) If they only experiemced short gaps in coverage. This tax is actuially proprated by month! You ahve agap of up to three months withouyt falling prey to the tax, or to put it another way, ylu are still exempt

    4) If you would suffer a hardship if you needed to get coverage, and what that means is if the low price insurance policy the government wouild accept would cost you more than 8% of income. If that’s $2.880, it;s anyone with income below $61,000 – but you must apply for medicaid etc if eligible and count all rebates and credits.

    Sammy Finkelman (d22d64)

  131. “129.125- pronoun ambiguity anyone? “They” keep asserting it is an unconstitutional penalty? Who is they?”

    JD did specifically call out Obama, Reid, and Pelosi, so I’m not seeing any pronoun ambiguity, but then folks aren’t exactly happy with my judgement around here.

    Brent Glines (f1a217)

  132. tye, you’ve once again shown your lack of comprehension. As a penalty, the PPACA mandate would be unconstitutional according Roberts’ opinion. And yet, after the SCt ruling, the White House, and Pelosi still deny it is a tax.

    Everyone in the thread understands the issue but you.

    SPQR (26be8b)

  133. 132-you’re dumb. Obama is not claiming that his own legislation is unconstitutional.

    tye (a1a31b)

  134. Brent Glines-

    I see that several hours ago you responded to my earlier question and I appreciate it. I note that you said you are an engineer and that you therefore gravitate toward arguments that involve logic and proof.

    What I still don’t understand (and I fully recognize that you owe me no explanation whatsoever–but I am curious) is how does this afternoon’s multi-hour, often heated discussion/argument help, or in any way advance the cause toward repealing ACA as you state you want to do, and almost everyone else who posts here also wants to do? IOW, why do you think this argument you are pushing and pushing on this thread (and elsewhere) about Roberts is either necessary or useful at this particular time?

    I’m neither an engineer or a lawyer, so maybe that’s why I’m missing the logic and the overall purpose of your freely admitting to multi site arguing and “annoying people on facebook”.

    elissa (472d0f)

  135. Tye is just flat out dum.

    JD (dfaa6e)

  136. 132-you’re dumb. Obama is not claiming that his own legislation is unconstitutional.

    Comment by tye — 7/5/2012 @ 2:54 pm

    He continues to maintain it is a penalty. The Supremes found it to be unconstitutional as a penalty. Apparently that is too complex for you to grasp.

    Brett – it isn’t your judgement that people questioned. It was the assertions of fact not based on, well, anything.

    JD (dfaa6e)

  137. tye, I am sorry but basic logic does not show up in your curriculum until ninth grade.

    SPQR (26be8b)

  138. @Elissa, I think people are wasting time fuming over the Roberts decision. It is water over the bridge, and the time and effort is better spent on Plan A.

    If you disagree with the decision, then dammit, lets repeal the law and be done with it.

    If you agree that the decision was decided in accordance with the law, but don’t like the outcome, then dammit, lets repeal the law and be done with it.

    Either way, if you agree that the law should be repealed, then dammit, lets repeal the law and be done with it.

    Plan A applies, either way.

    Brent Glines (f1a217)

  139. 136- the correct way to phrase that, sweetheart, is “Obama continued to assert it is a penalty, which the courts have ruled unconstitutional.” But if you want to explain away your total lack of education on me and not on the sad attempt of your family to homeschool you.

    tye (a1a31b)

  140. @Elissa, I think people are wasting time fuming over the Roberts decision.

    You are the one that drove this entire discussion.

    JD (dfaa6e)

  141. Tye is not even a functioning imbecile.

    JD (dfaa6e)

  142. I think people are wasting time fuming over the Roberts decision.

    It is possible to fume over the Roberts decision and work to repeal it at the same time.

    There is no time wasted.

    Steve57 (7baca9)

  143. people are wasting time fuming over the Roberts decision

    this was a decision made for the public relations benefit of our deeply unserious supreme court and to give our harvard trash chief justice a chapter for his memoirs, and it was a decision made at the expense of our liberties

    the only way to make sure this cowardly cowardly loser knows how fundamentally he’s failed failed failed is to let him know he’s failed I think

    happyfeet (3c92a1)

  144. “They” keep asserting it is an unconstitutional penalty? Who is they? Obama? Obama is claiming his own legislation is unconstitutional? You’re smrt.

    Comment by tye — 7/5/2012 @ 2:43 pm

    No one is saying Obama concedes his own legislation is unconstitutional. They’re saying it IS unconstitutional.

    You should not be questioning anyone’s intelligence.

    Gerald A (e4f300)

  145. This is pretty hilarious, Brent and we agree on one thing. tye is an idiot.

    SPQR (26be8b)

  146. If you’re tiring of tye and this discussion there’s a fairly interesting one going on over at Althouse about what will happen when many states turn down medicaid expansion money and decline to set up insurance exchanges. A few more new wrinkles/angles to think about with respect to repeal.

    elissa (472d0f)

  147. elissa, good point. The entire Obamacare is collapsing in failure. Not a single aspect of it has worked as advertised, even after we got to read it …

    SPQR (26be8b)

  148. Pyrrhus would be proud of Obama.

    SPQR (26be8b)

  149. It is not the role of the Supreme Court to support the oppression of the American public by the Congress, it is the role of the Supreme Court of oppose the oppression of the American public by the Congress.

    Congress shall make no law telling the public what they must buy. (Implied in the 9th amendment to the US Constitution.)

    Alan Kellogg (297baa)

  150. Tye is not even a functioning imbecile.
    Comment by JD — 7/5/2012 @ 3:09 pm

    — I beg to differ . . . he functions.

    Icy (e77123)

  151. 136- the correct way to phrase that, sweetheart, is “Obama continued to assert it is a penalty, which the courts have ruled unconstitutional.” But if you want to explain away your total lack of education on me and not on the sad attempt of your family to homeschool you.
    Comment by tye — 7/5/2012 @ 3:07 pm

    — You are absolutely 100% correct on this one. That IS the proper way to phrase it. Good job, tye!

    Now, are YOU going to tell Teh One that, by claiming that it’s a penalty but ignoring the unconstitutionality of said penalty, he is advocating lawlessness at the federal level?

    Icy (e77123)

  152. Comment by Brent Glines — 7/5/2012 @ 2:03 pm
    The court did not go out of it’s way to find the law Constitutional. The Government argued specifically that if the mandate could not be upheld under the Commerce Clause, it should be upheld as a tax. Since the government put the argument forward, the Court ruled on it. That is hardly going “out of it’s way”.
    — Is that how these things work? The court says “we’re going to rule on these specific issues” and the defendant comes along and says “hey, while you’re at it, decide this, too”?

    No. I’m sure Steve57 will get his knickers in a bunch again over this again, but according to precedent it only needs to be “fairly possible” to interpret the payment as a tax. The reason for this is that the court is justifiably reluctant to declare a statute unconstitutional if a “fairly possible” argument can be made to preserve it.
    — IOW, the flimsiest of justifications is sufficient. Whatta country!

    “And if the votes aren’t there, then what?”
    Then the democratic process has been upheld, and by majority vote, there is insufficient support to strike down the law.

    — Also known as insufficient support for the rule of law within the SCOTUS.

    Icy (e77123)

  153. The mandate as a tax or commerce clause is functionally the same as far as how it advances health care reform.

    There’s something conservative in Roberts not overturning years of bitter legislative work just because the court has now decided that some methods of labeling the mandate are unconstitutional. A technicality, really. If the court had said back in the 90s, when mandates were first proposed, that they had to be done with taxes, then they would have more clearly been done with taxes. This sort of common sense validates the Roberts reading of the statute so as to make it constitutional.

    spointer (01dabf)

  154. If IMaDickWad would spend as much time educating itself on economics as it does in finding new names, and spoofed IP addresses, it might actually attain a level of economic functionality that would allow it to conduct reasonable discourse.

    AD-RtR/OS! (b8ab92)

  155. The mandate as a tax or commerce clause is functionally the same as far as how it advances health care reform.
    — A tax is a fine is a tax, as our host has said.

    There’s something conservative in Roberts not overturning years of bitter legislative work
    — WTF does that even mean? Congress gets an “E” for effort and a gold star for taking the time to craft 2,700 pages worth of crap?

    just because the court has now decided that some methods of labeling the mandate are unconstitutional.
    — Thank you for acknowledging that the court itself labeled the mandate as both a tax AND a fine. And you think that’s just peachy keen.

    A technicality, really.
    — Do you say the same thing when your favorite politician talks out of both sides of his/her mouth? “Hey spointer, s/he just contradicted him/herself!” spointer: “A technicality, really.”
    Yeah well, ‘technically’ they got the decision half right and half wrong.

    If the court had said back in the 90s, when mandates were first proposed, that they had to be done with taxes, then they would have more clearly been done with taxes.
    — So now you’re saying what, it’s the fault of the court for not deciding, back in the day, a case that was never presented to them? And now they are making up for the non-judgment in that non-existent case with the bogus judgment they rendered in the current case . . . you know, the one that really exists?

    This sort of common sense validates the Roberts reading of the statute so as to make it constitutional.
    — Your imaginary scenario, in which the SCOTUS renders a definitive ruling on a proposed piece of legislation . . . THAT you declare to be “common sense” validation?
    I’ve got some news for you: That kind of common sense usually comes with a drool bib, a jacket that ties in the back and some springy walls to bounce off of.

    Icy (e77123)

  156. “– A tax is a fine is a tax, as our host has said.”

    Do you understand the word “functionally” ?

    “Congress gets an “E” for effort and a gold star for taking the time to craft 2,700 pages worth of crap?”

    In that it’s not the court’s job to decide what’s crap or not. Though I don’t doubt Scalia thinks it is and is letting it cloud his judgement.

    “Thank you for acknowledging that the court itself labeled the mandate as both a tax AND a fine. ”

    That sentence doesn’t say what you think it says.

    “So now you’re saying what, it’s the fault of the court for not deciding, back in the day, a case that was never presented to them? ”

    No I’m not assigning fault. It is neither Congress’s nor the court’s fault that only now, after years of legislating and bitter political fights, do we know what it takes to get 5 votes to declare a mandate constitutional. And because it is neither of their faults, the court should not trump congress’s policymaking role if it can help it.

    “– Your imaginary scenario, in which the SCOTUS renders a definitive ruling on a proposed piece of legislation . . . THAT you declare to be “common sense” validation?”

    No that’s your imagination. I’m not imagining a court that issues advisory opinions. That’s unconstitutional. I don’t think you’re understanding the point I made. Hint — it’s based on the fact that courts don’t do advisory opinions.

    spointer (01dabf)

  157. Explain this sentence, please: “If the court had said back in the 90s, when mandates were first proposed, that they had to be done with taxes, then they would have more clearly been done with taxes.”

    — Which court? THE court? And what would lead them to ‘say’ that it “had to be done with taxes”? Are you saying that this situation is overdue because HillaryCare should have been passed, and then challenged? WHAT do you mean?

    Icy (e77123)

  158. IMaDickWad is a Maroon, and is best ignored, Icy.
    It couldn’t get it right if given the correct answer.

    AD-RtR/OS! (b8ab92)

  159. “In that it’s not the court’s job to decide what’s crap or not.”

    spointer – Correct. The people do and Obamacare has been intensely unpopular since Day 1. Thank you for acknowledging that fact.

    Democrat Congresscritters were afraid to face their constituents at townhall meetings during the summer of 2009 due to its unpopularity.

    The unpopularity of Obamacare is not Mitt Romney’s problem no matter how hard the liberal media tries to make it his issue and calling it a tax or a penalty does not shift blame to Romney, nor does talking about the 1990s.

    What Romney did in Massachusetts is irrelevant to Obama’s national destruction of the healthcare industry and Romney has explicitly said he would repeal Obamacare. Any concern over whether Romney thinks Obamacare is a tax or a penalty is a pure distraction from Obama’s problem over the measure’s unpopularity.

    daleyrocks (bf33e9)

  160. No. I’m sure Steve57 will get his knickers in a bunch again over this again, but according to precedent it only needs to be “fairly possible” to interpret the payment as a tax. The reason for this is that the court is justifiably reluctant to declare a statute unconstitutional if a “fairly possible” argument can be made to preserve it.

    Why should I get my “knickers in a bunch?” I don’t care if you want to display the fact that you don’t know the difference between a “fairly possible” interpretation and a “patently ridiculous” interpretation.

    I’m actually quite glad you like to display it; it cuts down on the amount of typing I might otherwise feel inclined to do.

    Steve57 (7baca9)

  161. “Which court? THE court? And what would lead them to ‘say’ that it “had to be done with taxes”? Are you saying that this situation is overdue because HillaryCare should have been passed, and then challenged? WHAT do you mean?”

    Do you understand the basic idea of the logical construct “if… then…” ? When someone says “if a, then b,” they’re not saying that “a” should happened. They’re saying what would be the result (b) of (a) happening.

    That there wasn’t much to lead them to the result where they would have clarified back in the 90s (ignoring, of course, that it would be a different court) that you need to make mandates under the taxing power is another reason why they should cut congress some slack — there’s no way for them to have known.

    spointer (01dabf)

  162. Is this person *really* imdw, yet again? It’s like Blogback Mountain, apparently. He just can’t quit Patterico.

    Simon Jester (c8876d)

  163. spointer, the idea that it was a surprise that Obamacare’s mandate had a constitutional problem is pure horse manure. Democrats poo-poo’d it but the issue had been brought up before.

    SPQR (26be8b)

  164. “spointer, the idea that it was a surprise that Obamacare’s mandate had a constitutional problem is pure horse manure.”

    It’s not just that it had a problem — it’s that there’s this one precise way that garnered 5 votes vs. a functionally equivalent one, all based on how congress chose to label the same economic policy. And I suppose it is only now in this result because of this particular court. If Reagan had put Charles Fried on the court instead of Scalia, we wouldn’t find talking heads on TV arguing over taxes or not.

    spointer (01dabf)

  165. Pure hogwash. You can’t even believe your own nonsense.

    JD (dfaa6e)

  166. What, Charles Fried? He’s just fine with the mandate under the Commerce Clause. Reagan’s Solicitor General thinks it’s a no-brainer. But then again, maybe he’s not a movement conservative figure enough for some people.

    spointer (01dabf)

  167. spointer, you act like it was just a meaningless choice of label. But Obama, Pelosi et al still deny that the mandate is a tax.

    So obviously it was not a meaningless choice to them.

    You really are not very good at this “argument” thing.

    SPQR (26be8b)

  168. “spointer, you act like it was just a meaningless choice of label. But Obama, Pelosi et al still deny that the mandate is a tax.”

    It’s not that it’s meaningless — it could invalidate years of legislative work and toss out 2700 pages of reform as the teanuts on the court wanted to do!

    It has political salience, but I don’t think it has as much as people think it does.

    spointer (01dabf)

  169. Oh, it is so cute how you flounce about when called out on your sophistry. Now, let’s be clear. If you want to post here, pick one name. Sheldon? Imdw? Spointer?

    JD (dfaa6e)

  170. Years of legislative work is absolutely meaningless. It matters not a whit towards its constitutionality.

    JD (dfaa6e)

  171. “teanuts” – That’s the kind of stupidity I expect from dishonest trolls like spointer.

    SPQR (26be8b)

  172. That there wasn’t much to lead them to the result where they would have clarified back in the 90s (ignoring, of course, that it would be a different court) that you need to make mandates under the taxing power is another reason why they should cut congress some slack — there’s no way for them to have known.
    Comment by spointer — 7/6/2012 @ 4:54 pm

    — So, the same dimwit that protested to the max that Roberts had ‘all of the legal precedents one would ever need to draw upon’ NOW is claiming that this was uncharted territory, because there is no previous history of similar legislation being passed on which either ObamaCare could model itself or the SCOTUS could rule on its constitutionality.

    In other words, he’s saying that Roberts cut the legislature some slack, and was right to do so, because they did not know that they should have labeled the mandate penalty as a tax.

    In other words: in this case, ignorance of the law IS an excuse.

    there’s no way for them to have known
    — Right! Because heaven knows that there aren’t any licensed attorneys among the members of Congress (only about 40% of the membership) and who knows(?) if any lawyers were involved in actually writing the thing!
    What’s that? It was written AND reviewed by lawyers before it was ever presented to Congress? Well yeah, but that doesn’t mean anything because there was no way to forsee how the SCOTUS would rule . . . and reg’lar lawyers ain’t like the Super SCOTUS lawyers nohow!
    What, do you think that these bozos are actually able to read the Constitution, let alone understand it? You crazy, mon. You crazy.

    Never mind the shenanigans that took place during the battle to get the thing passed. Like, for instance, that whole “it’s a tax!” “no, it’s a penalty” argument that took place around the time of passage. Remember, Congress can read the Constitution all that it wants to, but it still has to rely on the SCOTUS to tell them what it means.
    As for the anomaly of us lay people around here being able to clearly discern what our elected representatives cannot figure out without the assistance of the highest court in the land; well . . . we’re just kinda special that way.

    Icy (e77123)

  173. “In other words, he’s saying that Roberts cut the legislature some slack, and was right to do so, because they did not know that they should have labeled the mandate penalty as a tax. ”

    That sounds like the purpose of the maxim to interpret statutes as constitutional when possible.

    “Right! Because heaven knows that there aren’t any licensed attorneys among the members of Congress (only about 40% of the membership) and who knows(?) if any lawyers were involved in actually writing the thing!”

    It’s not really a question of having licensed attorneys. It was a novel question decided 5-4. Lots people are surprised with this result. And this result would have been vastly different had Reagan appointed Charles Fried instead of Nino. What, should congress have listened to Reagan’s solicitor general? Or just stuck to the text and regulated commerce among the several states?

    spointer (01dabf)

  174. That sounds like the purpose of the maxim to interpret statutes as constitutional when possible.

    The Roberts maxim is to deem statutes as constitutional even when impossible.

    Look, you and your friend Brent can pretend that Roberts issued some sort of solomonic ruling; wise, well-sourced, and rational.

    Brent’s all lathered up about how Roberts cited prior case law and claimed it supports his fore-ordained conclusion that ObamaTaxaFinaPaloozaCare is constitutional.

    Which is somehow equivalent to the fact the dissent not only cited the same case law, but actually read it and quotes the portions that tell Roberts he’s gone completely off the rails and that, no, the cases he cites don’t support his idiocy.

    But nobody’s buying it because of the obvious fact Roberts opinion is distilled idiocy (nobody who didn’t already support ObamaTaxaFinaPaloozaCare in the first place and could give a rat’s ass about the Constitution).

    DNC Scientists Disprove Existence of Roberts’ Taxon

    …In order to disprove the Taxon, scientists at the HSWC devised a test experiment in their enormous CarneyLab bullshit accelerator. This test involved speeding a small mass of Facton – theoretically containing Roberts’ Taxon – and smashing it at near-light speed against a flaming super-dense ionized clod of purified bullshit.

    …While super high-density bullshit was critical to the experiment, Plouffe said other key variables were necessary to keep potential Taxons from escaping to Gallup Reality Space.

    “We were careful to shroud the collision within the Beltosphere, which is protected with a thick sheath of inert, pliable media,” he noted. “As additional protection, we surrounded it with a negatively-charged gaseous squirrel field…”

    Steve57 (7baca9)

  175. “Look, you and your friend Brent can pretend that Roberts issued some sort of solomonic ruling; wise, well-sourced, and rational.”

    No I don’t. I think it’s majorly wrong and side with Charles Fried. I think he stared into the darkness that is the legal conservative movement and couldn’t bear to see what it has become. And thus he gave us his opinion.

    spointer (01dabf)

  176. There is a “legal conservative movement” now? Why was I not notified!

    Icy (ae16c4)

  177. That sounds like the purpose of the maxim to interpret statutes as constitutional when possible.
    — There remains a difference between interpreting a law to see if it is constitutional and interpreting a law in order to make it constitutional. The former requires a magnifying glass; the latter, a shoehorn.

    this result would have been vastly different had Reagan appointed Charles Fried instead of Nino. What, should congress have listened to Reagan’s solicitor general? Or just stuck to the text and regulated commerce among the several states?
    — In all seriousness, feel free to take every one of your alternative history scenarios and shove them up your sphincter. This discussion is about what really did happen, and whether or not it was the correct decision.

    Icy (ae16c4)

  178. “There is a “legal conservative movement” now? Why was I not notified!”

    How long have you been reading right wing blogs? Ever read anything at Volokh Conspiracy?

    “This discussion is about what really did happen, and whether or not it was the correct decision.”

    And you’re now just finding out about a conservative legal movement….

    spointer (01dabf)

  179. Sub•stan•tive

    Icy (a2aa28)

  180. So it Kman, the Derrick Bell fan, after all, how Fried does not get that an unlimited Commerce Clause interpretation, which even Roberts rejected, is not the whole ballgame,

    narciso (ee31f1)


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