June 28, 2012

How Chief Justice Roberts reenvisioned the individual mandate as a tax... and how he avoided the question of congressional accountability.

After going through the Commerce Clause, the Necessary and Proper Clause, and the Spending Clause, I'm finally going to read the taxing power part of the new case — which, by the way, is called National Federation of Independent Business v. Sebelius.

This is the part where a 5-person majority upholds the individual mandate. Chief Justice Roberts writes, joined by Justice Ginsburg, Breyer, Sotomayor, and Kagan. The 4 liberal Justices did not agree with him in the Commerce Clause part of his opinion, III-A, so they also don't join III-B, which is the transition from the Commerce Clause to the taxing power discussion. In III-B, Roberts tells us that we need to shift from thinking about the individual mandate "as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product." The government argued for reading the statute one way — as a requirement — but that led to viewing it as unsupported by the only enumerated power that might have supported it, the commerce power. So we shift to the other alternative — the mandate as a device for identifying who owes a tax. He's choosing to read the mandate in the way that allows it to be supported by another enumerated power, the taxing power.

Now, on to part III-C, with Roberts writing for the majority.
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 the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017....
The fact that Congress labeled it a "penalty" rather than a "tax" isn't crucial. (Nor does it matter that the Court doesn't view it as a tax within the meaning of the Anti-Injunction Act.) Roberts also distinguishes cases that say when an exaction is a "penalty," it is not a tax. So the label "tax" won't turn what is really a penalty into a tax (within the taxing power), and here, the label "penalty" won't turn what is really a tax into a penalty. The question is what is it really, and this "penalty" is really a tax for 3 reasons:
First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture [the case that found something labeled "tax" to be a penalty]. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement [unlike Drexel]. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution [unlike Drexel, where the "tax" was enforced by the Labor Department].
It doesn't matter that this tax is supposed to get people to do something else. Taxes are often structured to motivate people to do something the government would like you to do. There are endless taxes shaping behavior, but they still get to count as taxes under the taxing power since they raise revenue. Roberts notes the obvious example of a cigarette tax. It's an incentive not to smoke, and it raises revenue. It's a tax.
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.”
In this case, what's called a "penalty" isn't really a penalty because it's not a punishment for failing to buy insurance.
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. 
So it's just an option. You can opt not to buy the insurance and to pay the "penalty." Whichever you want. The government said exactly that to the Court. You won't have done anything wrong, so pay whichever is less. And if you are one of those healthy people whom the insurance companies need to bulk up their funds so they can pay the expenses of their unhealthy, you should hand your money to the government. Screw the insurance companies! That is the plan. The government said so. If and when you have health-care expenses that outweigh the cost of insurance, then go ahead and buy insurance. Again: screw the insurance companies. That is the plan.
Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.
It's the plan. Can you see the ultimate plan?

Now, this is awfully tricky. What about democratic theory? Shouldn't Congress have to reveal such a devious scheme to the people so they can react and pressure Congress about what they want and don't want? As I said back during the oral argument:
[W]hen Congress was passing the bill, the people never understood [it as a tax]. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? 
And here I find the place in the oral argument transcript where Justice Breyer pinned down the Solicitor General Verrilli, getting him to say "If they pay the tax penalty, they're in compliance with the law." Breyer said "Thank you." That was a big "thank you," and Verrilli responded "Thank you, Justice Breyer." Indeed! It was on that point that the case was won. Breyer later returns to the subject, and Roberts gets involved, asking the Solicitor General whether "one of the purposes of the provision is to raise revenue," which was the key issue under the taxing power. I said at the time:
Get it? Something needs to be specifically called a tax for the Anti-Injunction Act to apply, but when it comes to assessing Congress's enumerated power to tax, specific textual reference to "tax" isn't needed.

I think Justice Breyer was buying that argument.
And Roberts was too, in the end.

So, Congress was raising revenue, but they really didn't want to talk about that at the time, and that's enough for the taxing power. Too bad if the people didn't notice. Justices Scalia, Kennedy, Thomas, and Alito — says it matters that Congress called this a "penalty" — expressing that to fail to buy insurance is wrongdoing that is being punished. And here's where Scalia-Kennedy-Thomas-Alito talk about democratic theory and accountability:
Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
Roberts' only response is that congressional power doesn't depend on labeling. He offers no answer to the discussion of legislative accountability. Interestingly, he did talk about accountability in connection with the spending power issue, as noted in this earlier post. He said:
Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.
In that context, the idea is that people need to know whether the state or federal government is responsible for a given matter so they can know who deserves blame or credit for a given policy. I think it's a real omission for Roberts not to address the accountability theory with respect to the mandate as a tax. Justices Justices Scalia, Kennedy, Thomas, and Alito were explicit about it, and it was obvious anyway. Maybe Roberts could have said that these 2 accountability situations are different. If Congress uses deceptive labeling to keep people from getting stirred up in time to stop the legislation, that's between Congress and the electorate, and we can get mad later and vote the bums out. But if Congress employs the states to do its work and the people don't like it, the people will be confused about who's really responsible. Congress will have blurred the lines of accountability. The people will have trouble knowing who are the bums. Roberts might have said something like that. These are 2 different ways of tricking people and one matters and one didn't.

But Roberts didn't talk about it. You know, there's a such thing as judicial accountability too. That's what these opinions are for.

ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.

128 comments:

McGehee said...

"So it's just an option. You can opt not to buy the insurance and to pay the 'penalty.' Whichever you want."

And refusing to commit murder is a choice. I can opt not to refuse and pay the penalty of spending the rest of my life in prison. Whichever I want.

Michael K said...

Hugh Hewitt just noted that Scalia's dissent makes reference to the other side as "the dissent". THis implies that Scalia's dissent was previously the majority opinion and Roberts switched his vote. If so, he may not have thought out all the items you note.

The Drill SGT said...

So if taxing power can be used to force me to buy health insurance from a private firm, can't it be used to form me to buy a car from Government Motors, another private firm?

Chip S. said...

Again: screw the insurance companies. That is the plan.

After a while, it got pretty tiresome making this point here. If it wasn't obvious to someone that O'care was a first step toward single-payer, that person was incapable of following a logical argument.

It was always the same question for anyone praising O'care: Moron or liar?

wyo sis said...

I always wonder if the person being analyzed really thought of all the things the analizers come up with. If Roberts really thought of all these ramifications he's got a mind like Machiavelli.

Bob Ellison said...

Words matter. The Constitution and our laws are made up mostly from words.

"Tax" is widely and correctly understood to be something imposed on an activity, an earning, a good, a service, or something like that. Governments tax things that exist. They don't tax things that don't exist. If they charge the citizens money for something that doesn't exist, it's not a tax; it's a taking of some kind, and circumscribed by the 4th Amendment to the Constitution.

If the federal government charged money for not being cheerful, or for failing to be wise, would we call that a tax? Of course not.

"Taxing" "going without insurance", as Roberts calls it, stretches the definition of "tax" beyond recognition. Roberts comes across as a double-speaking buffoon.

X said...

I guess I don't get where the constitution authorizes a tax not based on capitation or income.

David said...

I can sense Althouse about to go all Turley on CJ Roberts.

"Cry Bullshit, and let slip the dogs of war!"

hombre said...

It was always the same question for anyone praising O'care: Moron or liar?

There is a strong presumption favoring "moron." "Liar" suggests they actually understood it.

cubanbob said...

What Roberts has done is set the stage for an eventual constitutional amendment curbing the taxing power of the federal government as well as it's scope of competence.

The sophistry used by the court is breath taking. Roberts said it's alright for congress to lie to the public to pass what is a tax without calling it a tax and that taxes can be used to compel activity when the individual would prefer inactivity.

Ignorance is Bliss said...

So it is a tax. Is it a constitutional tax? Not according to David Kopel.

Was this settled by today's decision? I don't remember it being argued. Was that because the parties involved in the just-decided case do not have standing on that issue? Maybe that would have to wait until someone is actually assessed the penalty, then they would have standing to sue.

SunnyJ said...

As an instructor I find Roberts helping his student, who didn't make the correct argument and submitted the paper with the wrong rationale ...commerce instead of tax...instead of issueing the failing grade and sending it back to the student..he helps him by rewriting with the correct basis, issues a passing grade to himself and let's the student off the hook.

Crazy, crazy, crazy business on that one.

ed said...

Hugh Hewitt was a major supporter of Roberts. So frankly I'd take anything he says or writes with about a metric ton of salt.

ed said...

@ The Drill Sgt

"So if taxing power can be used to force me to buy health insurance from a private firm, can't it be used to form me to buy a car from Government Motors, another private firm?"

You know there are all these solar panel firms that are having serious trouble paying back their DoE loans. Wouldn't it be really helpful if people had a choice between buying solar panels or paying a substantial tax?

bagoh20 said...

Well, you know Roberts is the top legal mind in the country, so he would be better at this. I'm sure it's just too complicated for us mortals.

What a lame bunch of bullshit I have been fed today. It really is just a big curtain with a smoke machine and pyrotechnics, isn't it?

Quayle said...

My question is that now that this morass of crap is finally categorized, divided up, and shaped into patties, can it be challenged again for its new unconstitutional nature.

Such as not having been originated in the House, now that it is a tax?

Lem said...

Roberts takes a piss on us and calls it rain.

Lem said...

Such as not having been originated in the House, now that it is a tax?

That's the least of its mountain of flaws..

But its still a flaw.

Duly noted.

Michael K said...

"Hugh Hewitt was a major supporter of Roberts. So frankly I'd take anything he says or writes with about a metric ton of salt."

Why ? That statement is no compliment to Roberts. It implies he had other motives for his decision.

Lem said...

Roberts fooled everybody.

Dust Bunny Queen said...

Roberts notes the obvious example of a cigarette tax. It's an incentive not to smoke, and it raises revenue. It's a tax.

BUT... the obvious reality is that if I do NOT smoke it will raise no revenue (from me) and I pay no taxes.

This 'tax' is levied for me NOT buying the cigarettes/insurance.

There is no comparison.

Bender said...

The fact that Congress labeled it a "penalty" rather than a "tax" isn't crucial. (Nor does it matter that the Court doesn't view it as a tax within the meaning of the Anti-Injunction Act.)

Truth is a malleable thing.

From here on out the actual text of a bill is irrelevant. What Congress actually did is irrelevant. What is relevant is what Congress could have done and what the court wants to do.

Of course, if this country had any balls, we would say that the fact that the Court labeled this as a constitutional tax, rather than an unconstitutional travesty, isn't crucial. What the Court actually rules isn't crucial. Instead, we'll do whatever the hell we want to, just like the overlords of the judiciary do.

bagoh20 said...

Roberts clearly sees the law as deceptive and unworkable. He changed his mind for whatever reason and then tried to make a reason to cover it. He failed, and all he can offer is "it's not my job..."

YES IT IS.

Lem said...

BUT... the obvious reality is that if I do NOT smoke it will raise no revenue (from me) and I pay no taxes.

This 'tax' is levied for me NOT buying the cigarettes/insurance.

There is no comparison.


Roberts is a Turley and a Toobin Rolled into one.

mikesixes said...

Drill Sgt makes a pretty good point re:using the taxing power to force you to buy a car. But in a way, they already do that by giving tax credits to people who buy politically correct cars. It seems pretty much the same to me. They are charging me $7500 more in taxes this year than they would have if I'd been dumb enough to buy a Chevy Volt. They call that a tax credit for buyers, but couldn't they just as easily call it a penalty for non-buyers?

Quayle said...

Coming soon: a tax on sitting home on your couch, avoidable only by proving you went to the gym that day.

Bender said...

He changed his mind for whatever reason

Roberts IS a top legal mind, he is better than this. Which further makes me think that this was a mid-stream change of mind because his laughable ruling is entirely unvetted. Scalia does not really engage in the opinion at all, which if he had challenged him as he usually does in a dissent, Roberts might have seen the glaring shortcomings in his opinion.

Bender said...

But I raise the question again --

Does this now present an Equal Protection claim brought by a class of uninsured individuals?

Is it permissible under the Equal Protection Clause to create classifications for tax purposes between uninsured persons and insured persons (not to mention the multiple exemptions)?

Alex said...

You know, bring on single-payer. It works in Japan.

Alex said...

bagoh obviously believes in a very activist court.

mikesixes said...

Drill Sgt makes a pretty good point re:using the taxing power to force you to buy a car. But in a way, they already do that by giving tax credits to people who buy politically correct cars. It seems pretty much the same to me. They are charging me $7500 more in taxes this year than they would have if I'd been dumb enough to buy a Chevy Volt. They call that a tax credit for buyers, but couldn't they just as easily call it a penalty for non-buyers?

EMD said...

Coming soon: a tax on sitting home on your couch, avoidable only by proving you went to the gym that day.

Oh come now -- you wont' have to go to the gym. The exercise will come to you via the telescreens!

Bender said...

Let me tell you this -- as a homeowner, I find it to be quite burdeonsome to have to pay real property taxes in order to fund government services that are used by "freeriders."

So, in addition to property taxes, we ought now to impose non-property taxes on non-homeowners. That would be the only fair thing. If you own a home, you pay a property tax. If you do not own a home, if you refuse to buy a home, then you have to pay a non-property tax.

AllieOop said...

So now you know how it feels when someone who you trusted to do the right thing, did the wrong thing for inexplicable reasons, or reasons explicable, but unacceptable and distasteful. This is how many liberals see Obama.

Obamacare is still sorely lacking as a method of providing healthcare coverage to Americans, it's still a crappy product that we will all be forced to buy.

Lem said...

Roberts did say he would be like an umpire..

Dust Bunny Queen said...

giving tax credits to people who buy politically correct cars. It seems pretty much the same to me. They are charging me $7500 more in taxes this year than they would have if I'd been dumb enough to buy a Chevy Volt. They call that a tax credit for buyers, but couldn't they just as easily call it a penalty for non-buyers?

No. Because you would have paid the same taxes whether you bought a Chevy Firestarter or not. You are not taxed more or less for your inactivity.

Same thing for charitable deductions that reduce people's taxes. It doesn't mean you are paying MORE taxes because you didn't give to the Salvation Army.

In this case you ARE charged for NOT donating to the Salvation Army/ buying insurance.

Not the same at all.

Alex said...

Basically wingnuts decry Roberts as a traitor or something, gurgling along.

Alex said...

Allie - I say bring on single-payer and let us have it be the highest quality like in Japan. Let's also welcome in 300 million 3rd worlders to show how compassionate we are!

Bender said...

So, Congress was raising revenue, but they really didn't want to talk about that at the time, and that's enough for the taxing power. Too bad if the people didn't notice.

Too bad if 99 percent of the members of Congress who voted for it didn't notice. And too bad if the president who signed it into law didn't notice. And too bad if no one really noticed until some lawyer defending the law came up with such a lame and preposterous thin reed upon which to justify this crap.

Look Congress and Obama did not engage in a big scam here. There was no bait and switch. No one really thought that they were voting into law a tax. And why should they think that? It is not in the text.

So it is not in the text, it was not in the subjective intent of those who voted for it or the one who signed it.

This is yet another exercise in RAW JUDICIAL POWER, it is yet another exercise in justification out of whole cloth.

Ignorance is Bliss said...

In response to my previous comment, the issue of whether it was a constitutional tax was ruled on, so it won't be a separate lawsuit

Jay said...

Barry Friedman, a New York University law professor who wrote a brief supporting Obamacare, argued that by affirming the ability to regulate with taxing power, the decision created a precedent for future regulation along these lines.

“They can’t make you eat broccoli, but they can tax you for not eating it,” Friedman joked, by way of summarizing the meaning of the decision. This is, of course, a reference to what Jonathan Bernstein has called the Broccoli Tyranny argument.

Friedman suggests that this ratifies the power to tax to regulate inactivity. He acknowledged that the justices put a stop to the use of the commerce clause to do this but added: “I don’t see them as withdrawing power. The chief justice validated taxing to do exactly the same thing.”


Note: for anyone believing CJ Roberts was doing some super-duper mental trick on the 4 liberals, you're deluded.

Matt said...

The penalty fine is what $100.00? And by law the government cannot charge someone who doesn't pay the fine. It's a pretty toothless mandate.

Bryan C said...

""Taxing" "going without insurance", as Roberts calls it, stretches the definition of "tax" beyond recognition. Roberts comes across as a double-speaking buffoon."

The supporting argument over on the Volokh Conspiracy is that this is a tax on not having insurance in the same sense as the absence of income tax deductions is a tax on not having children.

This, of course, is wrong. The IRS doesn't give you money for having children. It requires you pay somewhat less of your money if you have children.

I think that distinction is pretty important. Because absent that understanding, the State has primary ownership of everything, and merely allows the rest of us to have what it wishes us to have.

Saint Croix said...

Scalia's dissent was previously the majority opinion and Roberts switched his vote.

Yeah, they discuss this at Breitbart.

It's interesting to contrast the Roberts switch with the Kennedy switch in Casey. Kennedy's opinion was full of rhetoric about how the Court could not overturn Roe while it was under fire.

So how did that work out?

After Casey, the Court is still under fire. The Republican party is still determined to overturn the opinion. It's in every platform and will be in our next one, too. Newt Gingrich talked openly about infanticides and blamed the Court for them. He was applauded by the Republican right-wing base. Justice Kennedy himself in Carhart writes openly about infanticide.

So the Court is still under attack. It's still partisan. Our abortion wars are still not resolved. You said you would resolve it, Justice Kennedy! You failed. We are not following you. You are Mr. Squish. You are Mr. Babykiller. You are Mr. Idiot.

That's the sort of partisan attacks Kennedy gets for writing an opinion designed specifically to ignore the criticisms of the Supreme Court. "Ha ha, we're unelected, fuck you."

Roberts, on the other hand, listens to the howls of outrage from the people who are angry at the Supreme Court. He hears the criticisms of Bush v. Gore. ("You put Bush in the White House!"). He hears the criticisms of Citizens United. ("Corporations are buying our elections!")

I think these criticisms are wrong. But the feelings are sincere. Popular sovereignty. Right to vote. Democracy. Respect that, Supreme Court, or feel our wrath!

What we have with Obamacare is a super-heated partisan debate. And the Supreme Court is stuck with very complicated legal doctrines that are hard to understand--and could go both ways. So what is the best thing to do? Kick it to the voters.

I see Roberts' attitude as healthy. He's a Republican and (presumably) hates Obamacare the same way two-thirds of the country hates it. But he's taking the high road, ignoring his own political views and allowing democracy to function. It's rather like a liberal voting to overturn Roe v. Wade on the grounds that unelected people shouldn't dictate things and piss off our people. I don't know if there is any liberal like that, but Justice Roberts has the moral high ground in that argument, it seems to me.

Bryan C said...

"The penalty fine is what $100.00? And by law the government cannot charge someone who doesn't pay the fine. It's a pretty toothless mandate."

At the moment, yes. But there's no reason that can't change.

And by one reading, while they can't bring criminal charges the IRS can, in fact, levy civil penalties withhold tax refunds and generally screw you over, just as they can with any other unpaid tax.

Bender said...

the issue of whether it was a constitutional tax was ruled on, so it won't be a separate lawsuit

IIB -- the only challenges to the mandate here were under the Commerce Clause (combined with Necessary and Proper) and the Tax Clause, but the Constitution is more than the Tax Clause. The ruling did NOT say that this is constitutional for any and all purposes.

There are other challenges, including those by individuals, who have not had standing yet, that might still be brought.

Matt said...

So... this is a tax. Fine.

The bill originated in the Senate (the house had to pass the senate version, as is, if you recall).

ALL taxes MUST originate within the house. The process of passing this steaming pile of law, was in fact unconstitutional.

yashu said...
This comment has been removed by the author.
obladioblada said...

So, can tax increases and cuts now originate in the Senate?

Bender said...

So, can tax increases and cuts now originate in the Senate?

Oh who the hell cares?

The Constitution be damned. It is as worthless as that roll of paper you have next to your toilet.

Government is going to do whatever the hell it wants and if you do not like it, then screw you.

sydney said...

This is the most disturbing thing about the ruling. They can mandate anything now, and they will.

yashu said...

Apologies for repeating here what I just wrote in one of the long threads below.

The only way ACA was passed, and the only way it's now upheld, is that its supporters played on an impossible dual identity-- the mandate is now this not that, now that not this. I earlier found some consolation in the thought that "that dissemblance is now stripped away."

But upon reflection (spurred by Chip S.'s comments)... not so much. Roberts has done precisely what ACA's supporters did: play on that duality. As light is wave and/ or particle ("is" both, but can't be both simultaneously, at any given moment exclusively one or the other), so the mandate is penalty or tax. At any given moment, ACA's supporters defined the mandate as suited their present purpose-- penalty not tax, tax not penalty.

Roberts has done exactly the same... worse, because he is not advocating for it but presumably judging what it is. The mandate is interpreted by Roberts as tax not penalty (light is interpreted as particles not wave) because the tax is constitutional, and a penalty would not be. Whatever it takes. Even though the crafters of the law framed it as penalty not tax, the judge of its constitutionality can interpret it as tax not penalty.

Tax or penalty, wave or particle, whatever suits the purpose (in this case, of upholding the law). The dance of dissemblance-- or the magical duality of light-- goes on. Quantum mechanics have got nothing on the Supreme Court.

Lem said...

So what is the best thing to do? Kick it to the voters.

The people that voted in Obama?

High stakes Roberts.

Saint Croix said...

I might add that the Tea Party was created not to oppose taxation. It was created to oppose taxation without representation.

If you're pissed off about taxes, vote.

What is the limit of this bizarre new doctrine, the government's authority to tax us?

Answer: the ballot box. It's always been the answer.

Smite him in November.

Michael K said...

"You know, bring on single-payer. It works in Japan."

That's interesting as I know a bit about Japanese medicine, or rather surgery. Japanese surgeons are very aggressive in adopting new methods that some see as risky. I once had as a patient a very successful Japanese restaurant owner. He came to America for treatment as he said that Japanese surgeons are "inhumane." He also had his son got to St Judes in Tennessee for a kidney transplant.

It's too bad I never got to take him up on his invitation to visit.

Carol said...

If what Hewitt says is true, this looks more and more just like Owen Robert's switch in 1937 that saved the New Deal.

Kinda eerie ya know.

Lem said...

Roberts was supposed to be the designated driver.. and on the night he was needed the most, he handed everybody their keys and took off.

Unknown said...

"I think that distinction is pretty important. Because absent that understanding, the State has primary ownership of everything, and merely allows the rest of us to have what it wishes us to have. "

Did you just now discover this?

A homeowner, who owns his own home outright, has to pay more in federal income tax than a mortgaged homeowner who can take a mortgage deduction. Both are homeowners, right?

Take away the labels "penalty" and "deduction," and it all looks the same. The free-and-clear homeowner is being penalized for not going into debt.

Unknown said...
This comment has been removed by the author.
Unknown said...

Alternately, the mortgaged homeowner is being rewarded for going into debt.

Which is it?

PatCA said...

This bill is so massive and complicated that even if it were not intentionally deceptive, it would almost impossible for any of us to understand.

But Roberts ignores that, as well as the strange penalty that is so much lower than the premium. Whatever could the ultimate plan be, other than to bankrupt insurance companies and usher in single payer? Doesn't interest the court.

And it was intentionally deceptive. So now my insurance company can trick me into buying insurance I don't need, or a lawyer can trick me into signing a contract that is deceptive and to his benefit too?

Methadras said...

Who do we start calling the Wizard of Oz now?

ricpic said...

Our "choice" for not submitting to the mandate to buy health insurance is to accept a penalty for not buying health insurance. We're whacked for choosing to stay outside the circle of coercion. I guess liberty is an inconvenience to Roberts, the "conservative." So we do have a majority liberal Court. Roberts is a stealth liberal. The long march through our institutions is complete.

William R. Hamblen said...

Why is the Obamacare tax not a direct tax? If it is a direct tax, why is it not apportioned as required by Article I, Section 9?

Tom said...

"Our 'choice' for not submitting to the mandate to buy health insurance is to accept a penalty for not buying health insurance."

Think of it as a tax deduction for buying health insurance, instead.

Featherless Biped said...

Penalty or tax? = "Floor wax or dessert topping"?

The words of the USC and USSC have not mattered in a very long time. Who can bear to read them, any more?

That said, and noting the flaws in Roberts' argument, I believe it is a godsend to conservatives at this juncture, largely because he put the Commerce Clause in a teeny, tiny little box and gave the states a victory on Medicaid.

Chip S. said...

So now my insurance company can trick me into buying insurance I don't need, or a lawyer can trick me into signing a contract that is deceptive and to his benefit too?

No, no, no. That would be evil. Roberts' brilliant opinion only establishes that the President and the Congress can do that.

rhhardin said...

It will end okay if the insurance companies go belly up so long as the government doesn't become a single payer.

Then it's back to you go to your doctor and you give him cash, which was the solution all along in the first place.

Naut Right said...

Part 1 held:"48 F. 3d 1235, affirmed in part and reversed in part. 1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit. The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund."
The. part 3 held: "3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable."
Can you give me a W a T and an F?
Orwellian, chicken.

Naut Right said...

If I weren't so flabbergasted today I would have concluded that Roberts' reasoning per parts 1 & 3 should have barred the suit. .that would have landed the matter back in congress' lap, which seems to be chicken Roberts' intent. .that in turn would have sparred us this naaty precedent. Roberts' name shall be infamous for this, trust me.

Retired Prosecutor said...

Chief Justice Roberts was determined with this opinion to preserve "the non-partisan nature of the decisions of the Supreme Court." As far as the good of the commonweal . . . well, let's just say that the taxpayers weren't a similar priority for him.

We're on the way to single-payer . . . is everyone ready?

Balfegor said...

Re: Alex:

You know, bring on single-payer. It works in Japan.

As far as I can tell, Japan has almost the opposite of single-payer -- there's a huge variety of payors and payment mechanisms in Japan. Some are organized by big employers/keiretsu, others are organized by city and town governments, others are run by the national government. The fees/taxes people have to pay apparently differ widely depending on what region and/or funding mechanism they're covered by.

What Japan does have is flat out price controls -- most of those payors are public or quasi-public, and their payments are governed by a points system that is determined every two years by a council (中央社会保険医療協議会, the Central Social Insurance Medical Council) convened under the Ministry of Health and Welfare.

The normal result of price controls in this kind of context is that there's an undersupply of medical services, but at least in big cities, it seems to me like Japan has much better basic access to health care than in the US (there's clinics almost everywhere within easy walking distance), so perhaps the prices are actually set high (which would not be too surprising given the autocratic, oligarchical tendencies of the Japanese bureaucracy). Except that Japan spends so much less on health care per capita than we do, so that can't be right. I suspect it's that the public/quasi-public programs just provide narrow coverage (e.g. cancer coverage seems to be a big selling point for private plans). And doctors get paid less. Also, I think many private hospitals are owned and run by doctors, which probably helps.

Chip S. said...

It will end okay if the insurance companies go belly up so long as the government doesn't become a single payer.

Then it's back to you go to your doctor and you give him cash, which was the solution all along in the first place.


Well then. Nothing to worry about!

Do you honestly think for one moment that the political dynamic that led to all manner of government intervention in the health-care industry will lead to laissez-faire now?

Also, since you keep making the argument that no-insurance is the natural state of an unregulated health-care market, I'll point out to you that Blue Cross was started in 1929, quite entrepreneurially.

Fat Man said...

Blah, blah, blah. I say it's socialism and I say the h311 with it.

David-2 said...

I'd love to see someone mock up a "tax worksheet" for Congress' "broccoli tax". It would look like a W-4: A line for you, your spouse, and each adult member of your household where you enter "6" (pounds), a line for each child between 6 and 26 where you enter "3" (pounds) - a line where you add them up, a line where you enter how many pounds of broccoli you bought this year, subtract, if greater than zero copy the number here, multiply by $50, enter on line xxx of your 1040 where additional taxes go.

T said...

Since my natural Right to Happiness (ie, ti be left alone) is now vitiated, Obamunist ObamaCare amounts to a tyrannous attack against my natural Rights. Thus, now is the time for all Patriots and people of good will to organize for War against these tyrants. WAR! Civil War to cast out the Evil of Oppression. To defend Our Natural Liberties. To WAR!

SukieTawdry said...

They tax my income, they tax my investment gains, they tax my home, automobile and other personal property, they tax the stuff I buy and now they're able to tax me for stuff I don't buy. Who the hell wrote this script? I wanna see the writer.

JohnnyT1948 said...

Actually, what I think Justice Roberts is saying could be paraphrased as follows: "Mr. President, you gave us a health care plan with an individual mandate to purchase health insurance, which in and of itself would not be constitutional. However, since you gave people an "opt out' where they could instead chose to pay a tax, you actually gave us a huge tax increase that you insisted was not a tax. With that tax increase, you included no provision to enforce that it be paid, so people have the option to not purchase health insurance, but also not pay the tax. Thus, you have created a huge problem for the government. You created it, so you live with it and its consequences."

SukieTawdry said...

Fat Man said...Blah, blah, blah. I say it's socialism and I say the h311 with it.

Fascism is more like it. The insurance companies remain in the private sector, but the government dictates the particulars of their business. We private citizens do as we're told under penalty of law.

JohnnyT1948 said...
This comment has been removed by the author.
jr565 said...

I don't think this is necessarily all bad actually. One it affirms that he's, this is a tax. Despite Obama's assertion that it wasnt't. Repubs can create endless commercials about how Obama has raised taxes and lied to the american people.

Second, and more importantly, it offers a far easier way to over turn this monstrosity.
As Jennifer rubin suggested :
By the way, since it is a tax and the president has prosecutorial discretion, he can tell the IRS not to collect it, and the mandate goes away.

So, Romney can simply say, if he is president I will tell the IRS not to collect this tax,a nd the mandate becomes moot.

SukieTawdry said...

Even worse, Yashu. It goes back to not being a tax for purposes of the Anti-Injunction Act.

wildswan said...

It seems to me that this tax doesn't pay for insurance. But that was Obama's example, that just as we all have to buy car insurance so now we all have to buy health insurance. But under Obamacare after you pay the tax, you still don't have insurance. And people who are hard up might pay the tax because it is less than insurance. But it will really anger them that they still don't have insurance but they do have a new tax which can be grabbed out of their tax refunds. And people who are less hard up will see their premiums go up and that will anger them because premiums were supposed to drop. So this is not a thing that will work long run. But I do wonder if we have a long run left. I mean this shows utter contempt for the electorate by the Democrats - yesterday not a tax, today a tax, whatever. It's kind of frightening to see such contempt from elected leaders.

Balfegor said...

So, Romney can simply say, if he is president I will tell the IRS not to collect this tax,a nd the mandate becomes moot.

Not really, though. Because none of the regulatory structure makes sense without a mandate -- indeed, one of the problems with the mandate even as drafted is that it probably isn't punitive enough to force people to change their behaviour in the ways needed to spread costs effectively, etc. All refusing to enforce the mandate will do is make the Obamacare trainwreck crash a little faster -- the next president is still probably going to be confronted with a horrific mess by the end of his term.

SukieTawdry said...

Bryan C said...This, of course, is wrong. The IRS doesn't give you money for having children. It requires you pay somewhat less of your money if you have children.

Actually, the IRS does give you money for having children. The Additional Child Tax Credit is $1000 per child and is "refundable" (you need not owe any tax to receive the credit). Our illegal population (as well as many others, I'm sure) uses it to great advantage.

Balfegor said...

re:jr565:

By the way, since it is a tax and the president has prosecutorial discretion, he can tell the IRS not to collect it, and the mandate goes away.

And I should have said -- that's really not an appropriate use of "prosecutorial discretion", establishing a policy to ignore a law just because the President doesn't like it. I know Obama's doing it, but really -- is something okay just because Obama is doing it? Our standards ought to be a little higher than that.

jr565 said...

As was alluded to by althouse in another thread, Roberts ruling actually has the effect of limiting congresses ability to enact grand sweeping programs through the use of the commerce clause by pushing it into the tax code:

"Second, by laying waste to the Commerce Clause argument and making clear that this sort of thing can only be done through the taxation power, the decision may make it harder to pass these sorts of laws in the first place.  You cannot hide in the subterfuge of the Commerce Clause — or, if you try, everyone will say, “No, we know better now, this is and must be a tax.”  Roberts’ decision will press new social welfare initiatives out of the commerce clause and into the tax code — and passing a new tax is much more difficult as a political matter than passing a new regulation"

http://www.patheos.com/blogs/philosophicalfragments/2012/06/28/five-possible-silver-linings-in-the-obamacare-decisio/


I think that is about right. And again, another way is easier to end said programs. Axes can be repealed, and are unpopular to implement. Telling people if they don't buy insurance they have to pay a tax, means that its very easy to argue against implementation, since those proposing tax hikes have to both argue the merits of tax hikes but also argue the merits of their hiking taxes.

Obama now has to argue yes, he did raise taxes on Americans and lied about doing so by simply pretending it want a tax.

SukieTawdry said...

Dust Bunny Queen said...No. Because you would have paid the same taxes whether you bought a Chevy Firestarter or not. You are not taxed more or less for your inactivity.

There's another element to that though. $XX is required to fund the government. You are exempted from paying $7500 (although I think it was raised to $10,000) of your share of that amount because you bought a Chevy Volt. That means others will have to pick up your slack one way or another. So, in fact, people will be taxed or otherwise penalized because they did not engage in the activity of purchasing a Chevy Volt.

Tom said...

"So, in fact, people will be taxed or otherwise penalized because they did not engage in the activity of purchasing a Chevy Volt. "

Exactly!

So, it isn't Roberts you ought to be pissed at, it's the Congresscritters and the President.

Joe said...

Roberts went against everything he claimed to believe and did so with all the intellectual power of a rock.

I think it fairly obvious that Roberts changed his vote without telling the other justices until essentially the last minute. It stinks to high heaven. Was he bribed? Threatened? Did someone from the White House get a heads up and then had a talk with him?

I sense major corruption or thunderous stupidity. Either way, I'd impeach the bastard.

DavidPSummers said...

Am I correct in thinking that if a law come before the court that has an unconstitutional basis, it is not generally the courts job to find a way to make it constitutional? So that what Roberts did was a reach (albeit a minor one)?

Joe said...

Incidentally, a much better solution is to repeal the 16th amendment and put an end to this foolishness and a whole lot more.

Indigo Red said...

Just so that I'm clear on this - "stupid" is still tax free, right?

Carnifex said...

Sad, so sad to see you people thinking Roberts is a genius. Fine, what ever, he's a genius that failed to do his one single job. You know, the one that everyone said he's a genius at. His job is to say "yes this is constitutional", or "no this is not constitutional". Then, because all lawyers are blowhards who think their shit doesn't stink, they write endless reams of paper telling everyone how smart they are. His job is not to say, "well you fucked up, but I got your back" and then use endless reams of paper to excuse his legislating from the bench.

And the ones thinking Romney isn't salivating over the idea of more money to spend. What planet do you live on that politicians don't hold every goddamn cent dearer than their own childs life?

Then there's those who are saying "Use your vote" Really? Tell me how that works in NY, or CA, or IL. I'd like to know, because all I see is dumbasses electing more and more Socialist, excuse me, I mean Democrats.

The only thing that is gonna stop the Dem's and the RINO's from spending a trillion dollars on this shit sandwich, is that we don't have a trillion dollars to spend on it. But are you really naive enough to believe they won't try?

Please, God, if you do exist, send the sweet meteor of death and smite DC off the face of the Earth.(I don't expect him to. He likes to see us solve our own problems. Kinda just stands back and does nothing. Much like POS Roberts)

Psst.

Hey you!... Yeah you, what'cher name...Iran. The infidels in DC are using Korans to roll choom in. You still got that shit from Sadam? Allahu Ahkbar, man.

T. A. Hansen said...

That's what I don't understand either. If the government lawyers don't use a winning arguement is it the job of the court to suppy one. If so why even have the lawyers appear before the court.

Writ Small said...

I'm really struggling with how this is a tax or how it is equivalent to the cigarette tax as Roberts asserts.

Every other tax that I have been able to imagine is the government taking a varying-sized cut from an economic activity. A person buys cigarettes, and the govt. takes a cut (sales tax). A company buys services from a worker, and the govt takes a cut (income tax). A person buys a very expensive item like a yacht, and the govt. takes a larger cut (luxury tax). A person dies and passes his wealth to those he designates, and the govt. takes a cut (inheritance or "death" tax). A person sells a stock for a profit, and the govt. takes a cut (capital gains tax). A person acquires a purchases a "permanent" asset expected to provide recurring income or savings, and the govt. takes a cut (property tax). The income tax deduction is a case of the govt. deciding to reduce its cut if the person performs certain actions (buys a house or has kids).

All of that is within the context of taxes commonly understood. Economic activity takes place. Government takes a piece of the action in such a way to encourage or discourage specific activities.

How does forcing someone to pay something for not doing something fit into that? Roberts may have closed the door on the commerce clause giving the central govt. unlimited powers, but he just shifted that power to the power to "tax." The power to tax inactivity strikes me as a nearly unprecedented expansion of coercive governmental power over the individual.

All of the traditional taxes above can be avoided by refusing to engage in the related economic activity. There is a built in limit on what the government can take because the government can only tax up to 100% of what is involved in the economic activity. Not so with taxing inactivity. The denominator of the "transaction" is zero, so a percent isn't even mathematically possible. Under this new definition of a tax, the govt. is free to choose to extract any amount of money from individuals.

I don’t see how the principle behind Roberts argument can be viewed as anything other than a massive expansion of the power of the federal government over the individual.

PJ said...

WASHINGTON -- Today the Supreme Court decided two important cases involving the right to lie.

Professor, this is a terrific analysis -- and fast! Forgive my tardiness in asking a followup question, but I try not to post here when I'm drinking. Based on the tap dances and analytical gaps in the Chief Justice's opinion, do you think it is a fair inference that he reached his preferred result rather than a result to which he was led by intellectual honesty about theto law combined with genuinely held principles concerning deference to the political branches? I.e., do you think his opinion bears the hallmarks of result-driven reasoning?

For those of you who suggested that the President is now on the hook for a big tax increase, why can't the President simply reply, "What I supported and signed into law was a penalty, which I and several SC Justices continue to believe is constitutional as such. John Roberts is the guy who imposed a tax."

Rusty said...

Indigo Red said...
Just so that I'm clear on this - "stupid" is still tax free, right?


Nah. It's just that it isn't taxed at the federal level, yet.
If it were there'd be no democrats.

Rusty said...

Technically everything paid into the treasury by taxpayers is a tax. No matter what it is labeled as.
The acid test would be; is their a penalty(tax) for NOT paying it and still engaging in the same(or in this case not engaging) activity.
The double bind comes from; either purchase this whether you want it or not or pay a fine(tax). Either way you pay.
Limiting choice is not something free societies engage in.
I would like to hear what Althouse has to say on the matter. I'm sure there is some legal legerdemain that will explain how a penalty isn't a tax.

carrie said...

But the tax is mixed in with all of the other federal income tax filing requirement and 49% of people don't pay federal income taxes now so that means that these same 49% won't have to pay this new tax either. Unbelievable!

Saint Croix said...

The only divide between Roberts and the Scalia 4 is whether the mandate is a tax or a penalty.

From the Scalia dissent (and I love reading Scalia, as he's the best writer on the Court since Hugo Black).

"A tax is an enforced contribution to provide for the support of a government." Is Obama taxing us with Obamacare? Is that the intent, is that what he's doing?

"A penalty is an exaction by statute as punishment for an unlawful act."

Okay, that's from Scalia's dissent. That is a clear distinction between a tax and a penalty, right?

Now think about Obamacare, and be honest. Was the intention of the framers of Obamacare to criminalize all the people who did not have health insurance? Is that what they said they were doing? Think through it. That's like criminalizing poverty. "I can't afford health insurance = crime."

Sorry. That's not the way the liberals talked about the law. They talked about it in purely economic terms. They did not criminalize the underclass. They did not criminalize people who couldn't afford health insurance.

What do liberals really want? Socialized medicine. Free health care. Thus super-liberals are unhappy with Obamacare. Super-liberals want free health insurance, paid for by Santa Claus.

Obamacare is an attempt to raise taxes secretly. One can see all sorts of malign intents in Obamacare. I believe they secretly want to bankrupt the health insurance industry, or at any rate don't care if they do. Forcing the health insurance industry to cover people with pre-existing conditions destroys any rationale to buy health insurance. Quite simply, you wait until you get sick to buy health insurance. That's not "insurance."

Obamacare seeks to cover up this destruction of an industry by the mandate. "Everybody has to buy health insurance." But there's no real penalty if you don't. Your taxes go up slightly, and (by law) the increase is always less than what health insurance would cost.

Under Obamacare, anybody who pays taxes will either a) buy health insurance or b) be subject to a tax increase.

Are liberals seeking to demonize and punish people without health insurance, defining them as criminals? No. There's no rhetoric to that at all. Not by anybody in Congress, nor by the President.

I feel it's dishonest for the Scalia 4 (or right-wingers) to say liberals want to criminalize the poor. No, they don't. They're not doing that. Do they have malign intentions? Yes. Secretly bankrupting the insurance industry? Yes. Raising taxes while denying that's what you are doing? Absolutely.

So now this is a debate point to be made against any liberal who says Obamacare is not a massive tax hike. "So you are criminalizing poverty? It's illegal to not have health insurance, and anybody who doesn't is forced to pay a criminal fine?" Obama the Liar will be forced to say, "no, no, it's a tax."

That's what it is. Roberts is right. Scalia's argument doesn't even begin to convince me.

But I'm glad to read this opinions because they have clarified what Obamacare is, and how to attack it politically. Roberts is right. The liars are unmasked. Take to the fight to them.

drozz said...

Summary of Roberts' Opinion: the mandate fails "uniqueness", it's necessary but not proper, and the federal government cannot create activity by compelling individuals to enter into commerce against their will. Furthermore, if the mandate were to stand under the Commerce Clause the power retained by Congress would be virtually limitless, so the line must be drawn here.

But call it a tax and everything's cool.

jr565 said...

Again as far as the ease of repeal, since it's now part of the budgetary process, it only needs 51 votes and not 60 to overcome a filibuster and put Obamacare on hold.

Chip S. said...

St. Croix, You keep talking about "criminality," when Scalia said "unlawful acts." You surely know the difference between them, so it appears that you're twisting the meaning of critical words.

I realize that you think Roberts is a genius, but I don't think this rhetorical trick of his is worth emulating.

Saint Croix said...

Here's Scalia's argument:

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, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax.

I don't find the use of "never" particularly convincing here. We've never had Obamacare before. We've never had a so-called "criminal fine" that implicates millions of Americans simultaneously. And we use the term "penalty" all the time in the tax code, anyway. For instance, the capital gains tax is different, depending upon when you sell your stock. If you buy and sell a stock within the same year, your capital gains tax is higher. You pay a penalty. If you hold the stock for a year or more and then sell, your capital gains tax is lower.

You pay a penalty for your decision to sell a stock early. But it's not a "fine." I'm not a criminal. When I apply for a job and they ask me if I have a criminal record, I don't say, "well, I sold stock early and had to pay a fine."

Sorry. Bullshit, Scalia! Wrong, Scalia! The capital gains penalty is a tax, it's not a fine. Just because the word "penalty" is used throughout Obamacare does not make it a criminal sanction.

Chip S. said...

If you buy and sell a stock within the same year, your capital gains tax is higher. You pay a penalty.

The only word for this is "bullshit." In fact, it's bullshit on stilts.

You can argue that all taxes are penalties of some sort; penalties for earning income that puts you in a higher tax bracket, penalties for buying cigarettes, or anything else. Fine, go for it.

But your inability to perceive a difference does not mean that there is no difference.

Saint Croix said...

I realize that you think Roberts is a genius, but I don't think this rhetorical trick of his is worth emulating

Taxing and spending are inherently part of the legislative function. It's quite bizarre for the courts to tell us how to tax and spend. It's none of the court's damn business how we tax and spend. The voters have to pay the taxes. It's up to us. It's our call. Popular sovereignty is important. Democracy is important.

The point of the judiciary is to deal with crimes and torts involving individuals. That's why you have a judge. You're going to a lot of expense in order to find some semblence of justice. The Court system is not designed to strike down a budget, for instance. That's not its function.

It's really dangerous to have the unelected branch impose an economic theory on the country. Liberals once tried to dictate a constitutional right for free abortions to be paid for by the state. Would you like socialism imposed by the judiciary? You would not.

When liberals on the Court tried to impose a right to welfare in 1980 (free abortions), they were not beaten back by right-wingers. Rehnquist was the only right-winger! No, they were beaten back by people who like abortion, but also they think that taxing and spending has to be done by elected representatives.

I think the administrative state is unconstitutional. I am to the right of Scalia and Thomas on that one. I think a 1000 page "law" that the frickin' Speaker did not read is a joke. My entire inclincation is to hold Obamacare unconstitutional, almost on bureaucratic grounds. I abhor overly complex laws that are too confusing for our people to understand. But nobody made my argument.

The Scalia 4 and Roberts are arguing about whether Obamacare is a criminal law that punishes people for not having health insurance, or is a budgetary fight over the size and scope of government. Roberts is clearly right on that.

Chip S. said...

I don't think you can make your argument without your expansive definitions of "criminal law" and "taxing."

And they're nonstandard definitions.

That's all I've got.

Saint Croix said...

You can argue that all taxes are penalties of some sort

No you can't. That would be ridiculous. We would have millions of lawsuits every April 15th.

Scalia is arguing that the use of the word "penalty" in Obamacare makes it a crime not to have health insurance.

My point is that some penalties are in fact taxes, not crimes, as evidenced by the tax code itself.

If Obamacare was an attempt to criminalize people for not having health insurance--if you went to jail for it--that would clearly be unconstitutional. Congress does not have that power under the commerce clause.

The big commerce clause case is Lopez. It's about a federal crime. Congress made it illegal to carry a gun near a school. The conservatives said, no way. That's not commerce, you've gone too far.

You see how that implicates the judiciary? The government defines a crime, and now judges have to punish people who violate the crime. We were right to strike that down.

Suppose it wasn't a criminal sentence, but a fine? "If you carry a gun near a school, you pay $10,000 to the federal government."

That's not a tax. That's a fine. There has to be a judicial determination that you carried a gun near a school. Thus that would still be a commerce clause case, and still unconstitutional.

You see how Obamacare is different? There is no attempt to punish. You volunteer on your tax form that you don't have health insurance, and your tax rate goes up. That's a tax, not a criminal sanction.

Roberts is right.

Chip S. said...

Your argument does not improve with repetition.

Chip S. said...

No one puts things better than Iowahawk. Here are two of his best tweets on this ridiculous decision:

Since when can the Secretary of HHS randomly hand out tax waivers?

Brilliant Roberts ruling sets precedent for limiting Commerce Clause. If only lefty courts have ever given a shit about precedent.

Chip S. said...

St. Croix, you're calling the mandate a tax b/c it looks like the income-tax exemption for dependents in reverse. I think that analogy is invalid because there's nothing essential about it. People will still have kids with or without the exemption, although some people may have more kids with it than without it.

The individual mandate, however, is thecritical feature of Obamacare. Without it, the market for private health insurance would be destroyed by adverse selection. And why is that? Because--and only because--of the insurance regulation law known as the ACA.

The "mandate tax" is not a freestanding aspect of tax policy that can be added or removed, raised or lowered, at will by subsequent Congresses without undermining the entire regulatory structure of the ACA. For that reason, the mandate is completely unlike all the other aspects of tax policy you've enumerated. It is not simply a tax that happens to be coincident with Obamacare--it is the heart of the entire law. A law that is indisputably regulatory in nature.

Somebody--lots of people, actually--must have already made this point, but I'm sorry to say that it only just occurred to me.

Rusty said...

But your inability to perceive a difference does not mean that there is no difference.


Rhetorically there may be a difference, but in actuality your money winds up in the same place.Again the acid test is; what happens if the monies aren't paid?

paul a'barge said...

Look:
Roberts is Souter in loafers.

Boosh 41 gave us Souter.
Boosh 43 gave us Roberts.

Boosh is French for WTF?

Rusty said...

paul a'barge said...
Look:
Roberts is Souter in loafers.

Boosh 41 gave us Souter.
Boosh 43 gave us Roberts.

Boosh is French for WTF?




The Mighty Boosh!


Ah. Good times, good times.

Boonton said...

"So, Congress was raising revenue, but they really didn't want to talk about that at the time, and that's enough for the taxing power."

Clearly it is but even this phrasing dodges the truth a bit. Suppose everyone buys insurance, the gov't wouldn't raise any revenue from the penalty. On the flip side, though, the need to subsidize insurance purchases would almost certainly be decreased if everyone (esp younger healthy people) jumped into the coverage pool.

Same logic works for smoking. If everyone stopped smoking, tobacco tax collections would collapse. But it would probably remain a net gain to the gov't as spending on lung cancer and other diseases would drop just as fast.

Or go even futher back to Reagan and the Laffer curve. By cutting tax brackets, so the argument went, gov't was raising taxes.

Regardless, the argument against the law was pretty pathetic and most Americans smell that it had nothing to do with liberty. Basically the argument presented said if Congress passed a law saying everyone gets a $600 tax increase *but* if you brought health insurance you could deduct up to $600 off your taxes that is ok. But if Congress passes a law saying your taxes go up if you don't have health insurance, that's an infringement on liberty!

By this logic every single tax deduction and credit is a mandate and for generations we've been living under a 'mandate' to get mortgages, donate to churches and charities, get married, adopt kids, have kids, rescue puppies and so on.

Justices Scalia, Kennedy, Thomas, and Alito — says it matters that Congress called this a "penalty" — expressing that to fail to buy insurance is wrongdoing that is being punished.

Here's where I think you can put this to an acid test. A lawyer, as an officer of the court, may not advise a client to break the law....even if the law being broken carries with it a modest penalty that the client is willing to risk or pay.

so it would seem Scalia, Kennedy, Thomas and Alito all feel that if a person walked into a lawyer's office and said he didn't want to buy health insurance, the lawyer couldn't advise the client ot just pay the penalty. If he did, the lawyer should be disbarred for unethical conduct.

Roberts' only response is that congressional power doesn't depend on labeling. He offers no answer to the discussion of legislative accountability.

What's to answer? The House is elected every two years, Senators every six. If the people feel the law is a burdensome tax then they will elect people to repeal it. If they don't then they will not do so.

This is a very strange idea being put forth here that people would be *more* upset by a mere tax than by a criminal penalty so therefore Congress somehow 'fooled' people by slipping a tax in as a criminal penalty and it's the job of the right wing members of the SC to correct that by striking down laws that it feels are not properly labelled.

jr565 said...
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jr565 said...

This ruling may have the effect of being a Trojan
Horse for libs. It looks like a gift bringing a verdict they desire while adding an albatross around their Knicks and invalidating their rationale for why it was legal. .

But one problme with viewing the mandate as a tax is that the House iis not the ones that are supposed to bring pass laws that raise taxes.

So at the most basic level. How can' it be a tax, if they're not allowed to pass laws that raise taxes? . And wouldn't it be invalidated on the grounds that govt overstepped its bounds and passed a tax when they aren't supposed to.

Or is that yet more ammo that repubs can use with whicht o undermine the act.

Think about it. Roberts eviscerated the liberal argument that the commerce clause would allow such an overreach, but it could be allowable as a tax. Except THE HOUSE CAN'T PASS A BILL THAT RAISES TAXES. So why can t repubs just claim its unxconstitutional because the house can't effect policy that leads to raising of taxes. Either Roberts is wrong in calling it a tax, or he is providing clues for repubs as to how to override this bill.

If repubs can get past their gut reaction, they might see a lot more in this ruling that they can like.

Boonton said...

jr565

But one problme with viewing the mandate as a tax is that the House iis not the ones that are supposed to bring pass laws that raise taxes.

You got it exactly backwards. Tax bills have to originate in the House. You also got the ruling backwards.

9 Justices. 8 did not think it was a tax. 1 did.

4 felt it was a permissible use of the Commerce Clause, 5 felt it wasn't...only 1 felt it was a tax. If the 4 conservative justices felt it was a tax, then they should have joined Roberts in upholding the law or they should be impeached for voting to strike down a law t hey really believed was Constitutional.

Here's the problem, this is a stupid argument If Congress passes a law that says I can deduct my insurance premiums, then I can view that as paying less taxes if I buy insurance, or I can view that as paying more taxes for not buying insurance. Six of one, half dozen of another. This is not an argument about fundamental liberties, but about asine hair splitting.

Leo D said...

I'm left with one big question in trying to make any sense of Justice Roberts's logic.
After going over in minute detail why the Anti-Injunction Act did not apply (which would deny the courts jurisdiction over a 'tax' matter until it was incurred), in Roberts's words because repeatedly Congress backed the mandate with a 'penalty', how does Roberts then feel he's free to ignore the AIA once he and 4 other justices determine the mandate is backed by a tax, not a penalty?
In short: we don't trip the AIA because it's a penalty, but we know it's really a tax which we have no right (under AIA) to adjudicate until the 'tax' goes into effect.
How non-sequitur and illogical can you get?

Boonton said...

In short: we don't trip the AIA because it's a penalty, but we know it's really a tax which we have no right (under AIA) to adjudicate until the 'tax' goes into effect.

I suspect if Roberts had a majority on his side, the decision might have been along the lines of it's a tax, therefore the plaintiffs have no standing therefore the case shouldn't have even been heard unless and until they actually had to pay the tax.

Problems:

1 He didn't have a majority of Justices on his side, so he couldn't just simply kick the case back 'to be decided' when the penalty/tax is actually paid by someone who objects.


2. By deciding its a tax, you make the case moot. The Plaintiffs were not arguing tax law, they were arguing that this wasn't a tax but rather an impermissible use of the commerce clause. If you decide it is a tax, then that doesn't mean you put the case 'on hold' per the AIA, it means the plaintiffs have automatically lost their case.

Boonton said...

Just to clarrify that last point, if you decide its a tax, then there is no argument about th commerce clause. There is no case against the bill period.

This was the whole problem with the case from the start. The plaintiffs stated from the outset if Congress had raised taxes by $600 to provide health care, that was permitted. They stated if Congress had passed a $600 tax credit for everyone who secures insurance, that too is permitted. But the ACA created a non-tax, criminal penalty via the Commerce Clause that wasn't permitted.

As soon as you reject that last point, you terminate the entire case. There should be no need to wait under the AIA since the plaintiffs had not made any case about taxes to begin with. When and if someone does, the AIA would apply.

AST said...

What is the rate of this tax? Is it uniform? Doesn't it apply differently across the population?

Are there any taxes that apply to an on people who decline to take an action?

Boonton said...

What is the rate of this tax? Is it uniform? Doesn't it apply differently across the population?

It's about 2.5% of income, or $695 per person, whatever s higher.

Uniform? No, it doesn't apply to those who do not make enough income to have to file a tax return.

Apply differently across the population? Not sure what that would mean. Income is hardly uniform across the population so any law that is based on one's income will not be 'uniform' in that sense.


Are there any taxes that apply to an on people who decline to take an action?

Just about every single tax deduction would fit into that description. If I don't have a kid, adopt a kid, buy solar panels, put money into a 401K, give money to a charity, use my money on large medical expenses, use it on mortgage interest, and so on I will pay more taxes than someone else who is exactly the same as me except that they choose to do those things.

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