June 28, 2012

The individual mandate survives as a tax.

Says SCOTUSblog.

CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."

CNN is running on the Commerce Clause ground, apparently, and not seeing the tax power part.

At SCOTUSblog: "So the mandate is constitutional. Chief Justice Roberts joins the left of the Court."

UPDATE: John King on CNN is starting to walk back. Wolf Blitzer notes "conflicting reports from in there."

UPDATE 2: From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

UPDATE 3: CNN reporter showing what a big, long opinion it is — holding it up, flipping through the pages. Finally, at 9:15, she says the entire law has been upheld.

UPDATE 4: Note the important political effect of saying it's a tax (and not an exercise of the power to regulate under the Commerce Clause): People don't like taxes. Obama and the Democrats imposed a huge new tax, affecting middle class people. Wolf Blitzer calls this "a huge huge victory for President Obama," but it will be used against him, and the tax ground means a lot.
The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.
UPDATE 5: Based on CNN, which I don't trust, it's a 5 to 4 decision, and Chief Justice Roberts, not Justice Kennedy, was the deciding vote.

UPDATE 6: From SCOTUSblog: "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." Hmmm. I think that might be misstated. I'm guessing SCOTUSblog meant to say that individuals can simply refuse to comply with the mandate — i.e., buy insurance — and pay the penalty — which is accepted as a "tax" within the meaning of the taxing power. [ADDED: My guess there is correct, as SCOTUSblog has now noted.]

UPDATE 7: I still don't have the opinion, but the Commerce Clause discussion comes out on the conservative side, and that will be important doctrine. Now, possibly they simply talk about the difficulty of the Commerce Clause question and then refuse to resolve it, switching to the taxing power issue.

UPDATE 8: The spending power material about the states and Medicare is also important. Per SCOTUSblog: "The Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program." This probably is an important new contribution to the doctrine about conditional spending, that Congress can't attach a new condition to old spending as it entices the states to agree to something they can't otherwise be required to do. That makes it much harder to lure the states into accepting conditions.

UPDATE 8: In Update 7, I said I couldn't assume that there was a resolution of the Commerce Clause issue, but I see now that there are 5 votes saying the Commerce Clause does not support the individual mandate, and: "The power to regulate commerce presupposes the existence of commercial activity to be regulated."

216 comments:

1 – 200 of 216   Newer›   Newest»
Scott M said...

...and?

Amy said...

This is so confusing to the 'average' (non lawyer) person. Why then, does Drudge's headline say "Mandate Gone?"

Palladian said...

Roberts joined the left of the court, according to SCOTUSblog.

The Drill SGT said...

who u gonna believe, CNN or people who can read opinions

Tibore said...

According to Instapundit:

"INDIVIDUAL MANDATE HELD UNCONSTITUTIONAL UNDER COMMERCE, but Scotusblog says it survives as a tax."

I don't understand the distinction right now. I just see that Insty has made one.

Palladian said...

So is Roberts Bush 43's Souter?

BarryD said...

So the government can't force you to buy something from a private company, but it can tax you until you have no choice?

The Drill SGT said...

looks like Obama gets 90%

Matthew Sablan said...

I think they're saying that despite what they were told, the SC is calling it a tax.

Jason said...

...And those miners are stil dead, too.

Palladian said...

So the only hope is to elect Romney?

Balfegor said...

As a tax? That makes sense. Better than that cockamamie commerce clause argument.

Bob Ellison said...

Aha! Thanks to the SCOTUS for figuring out what the mandate was. Obama said it wasn't a tax. Verilli said it was a penalty. It might have been a unicorn. But it's a tax! Much as jail is not a punishment or a public-safety mechanism, but a housing program.

buster said...

Not a great moment of judicial courage.

BarryD said...

"I don't understand the distinction right now."

Outcome-based jurisprudence, and legislating from the bench, by Roberts. Nice.

edutcher said...

But does the blog know or is it just reading tea leaves?

PS Roberts and Alito, it might be noted, as they were appointed by Dubya, are described as big government Conservatives, and have been noted as rarely knocking down government laws.

YMMV.

TWM said...

It appears the law is constitutional. We are so fucked.

garage mahal said...

So the only hope is to elect Romney?

The father of ObamaCare. LOL

The Drill SGT said...

Tom:
The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.

edutcher said...

Palladian said...

So the only hope is to elect Romney?

It's been that all along.

Palladian said...

Roberts' vote saved Obamacare.

David said...

Blitzer: "Take a deep breath and tune to another channel."

LoafingOaf said...

So much for the legal analysis of all the stupid right wing law prof blogs these past few months.

Matthew Sablan said...

That... was an unexpected way to solve the problem.

Jason said...

10th Amendment, R.I.P.

Balfegor said...

Re: BarryD:

So the government can't force you to buy something from a private company, but it can tax you until you have no choice?

Yeah, more or less. Although the penalties here are not that severe, so most people will just freeride and pay the penalty instead.

That said, I think a lot of us in the comments here have been pretty firm in the belief that mandate would be constitutional as a tax. The impression from oral argument, though had been that the tax argument was more or less out.

Jay said...

Chief Justice Roberts' vote saved the ACA

Matthew Sablan said...

Loafing: No. Everyone on the right was assuming the court would believe the administration that this wasn't a tax. We weren't really ready for the court to just say outright: Obama lied, it's a tax. So there.

Palladian said...

Do you have a hard-on, PinchingLoaf?

Lem said...

Obama is toast now.. but at what cost?

David said...

Sounds like vote was 6-3. Oh, the legitimacy!

TWM said...

I guess the left now believes the Court is legitimate again . . .

john said...

What about all those pundits who have been claiming about the right has permanently hijacked the court?

I hear this is what they're saying this morning.

Jake said...

Palladin said:

"So is Roberts Bush 43's Souter?"

More like Eisenhower's Warren.

damikesc said...

We are beyond fucked right now.

Just checking, Scalia was wrong for mentioning an Obama policy in his oral dissent because it wasn't mentioned in the case...but the SCOTUS is cool because it argued that something EVERYBODY involved, including the solicitor, stated wasn't a tax actually was one?

Jay said...

Um, Obama and the Dems said this was not a tax.

This is confusing.

Palladian said...

Now Romney really has something to run against, besides the obvious.

Scott said...

Unfortunately, Romney running against Obamacare is a loser. As NY Gov. Alfred E. Smith said, "Nobody shoots Santa Claus."

Say hello to Obama's second term.

AJ Lynch said...

And I hate broccoli so this is twice as hard for me to swallow.

TWM said...

Wasn't calling it a tax a big deal at one point? Can it now be de-funded that way?

Lyssa said...

I cannot believe that the tax argument worked. I would not have been particularly surprised to see a commerce upholding, but TAX? When they definitively sold it as not a tax?

That's really, really dangerous stuff. Gov't can lie to us about anything and everything. This is worse than a commerce clause upholding, IMO. Takes an enormous amount of power from the people to check the gov't.

Patrick said...

One can hope for a Kelo - type legislation backlash.

dreams said...

Fox news made that mistake too.

Palladian said...

One can hope for a Kelo - type legislation backlash.

And the backlash against Kelo did fuck-all.

Roger J. said...

The good news that Mr Holder will be held in contempt :)

TWM said...

Amy Howe - "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate."

Fuck it, I ain't paying a thing.

Crimso said...

Does the word "tax" appear in the Act? Does it appear as applied to the individual mandate? Furthermore, when moving it through the legislative process, was it called a "tax?" If not, then why can't SCOTUS take them (and the law as written) at their word?

Palladian said...

Can you imagine how wet Nancy Pelosi's once-desiccated pussy is right now?

Barger said...

I'll bet nobody had Kennedy/conservative, Roberts/liberal in their bracket,

Balfegor said...

Re: Lyssa:

I cannot believe that the tax argument worked. I would not have been particularly surprised to see a commerce upholding, but TAX? When they definitively sold it as not a tax?

Well . . . yes, but it was obviously originally drafted as a tax provision. It's enforced by the IRS and I think it ended up in the internal revenue code. It's just that our idiot President insisted that it totally wasn't a tax, so the Democrats had to change it. Also, it's not like they sold it either way -- pluralities were hoping the law got struck down as a whole. I think a majority wanted the mandate struck down.

Patrick said...

The taxing power was already unlimited. If this had been upheld on interstate commerce, there would have been no limit to federal power. I agree that it's ridiculous to allow it under taxing power, but now at least the Administration must be clear about it. In addition, they must be held to account for their power grab.

wildswan said...

Is this tax we do not have to pay?

Eli Blake said...

Electing Romney won't do anything.

There will still be 41 Democrats who voted for it in the Senate, no matter how big a win Republicans could put together (if they do.)

And if they try to use 'reconciliation' then the law only covers specifically budget related issues (i.e. can't be used at all on regulations) and can be broken apart (and would be) by Democrats so they would have to repeal as much of it as they could piece, by piece, by piece. And watch what happens when, for example, they try to repeal the piece that would reinstate the 'donut hole.'

Get used to it, in other words. It's the law now.

Matthew Sablan said...

Even Obama said it was not a tax, as did those drafting the legislation. I'm utterly confused.

Beta Rube said...

Will the Federal Government ever be large enough for Garage and his pals? Will there ever be enough benefits, enough regulation, enough employees to administer and control the population, enough confiscation and transfer of wealth?

When we become Greece, and the moochers are burning the place down because we're stone cold broke and there's no money to buy them off, will the government be big enough?

This is an awful day. Finding the mandate unconstitutional could have at least put a dent in the massive inertia for more and more taxing and spending, but on we go to bigger and better socialist fantasies.

We are fucked.

Balfegor said...

I should say, "not like they succeeded in selling it either way." That's what I meant.

Pogo said...

Goodbye, USA, we hardly knew ye.

MarkW said...

It's a compromise. By upholding it as a tax, they avoided expanding the scope of the commerce clause (to include virtually anything and everything the government wanted to do). It would have been much worse if they had upheld it as a mandate.

Tully said...

So, wee now have a national tax on breathing.

Palladian said...

It doesn't matter that the Court affirmed that the justification for the mandate was a big, fucking lie, and it really is a tax.

Nothing can stop the Feds at this point, and most people don't really mind.

BarryD said...

We will see if Romney is as smart as he should be, now.

Obama imposed a large tax on the middle class, going against many pledges, promises and "let me be clears". The right video, and he's as toasted as Bush 41.

MikeR said...

Is there anything one can conclude from the decision about the limits of power of the Commerce Clause? I really care more about that than the particular detail of the Mandate. Does the decision say that it would be unconstitutional if it weren't a tax?

Balfegor said...

Re: Matthew Sablan:

Even Obama said it was not a tax, as did those drafting the legislation. I'm utterly confused.

Yes, but Obama was saying it wasn't a tax at a time when the drafts in the Senate called it a tax. Obama didn't know crap about the bill, and I don't think his opinion should be taken as authoritative on any point.

Palladian said...

Get used to it, in other words. It's the law now.

Do you have a hard-on, Eli?

D.D. Driver said...

Anyone else remember the discussion from the other day about wishy-washy split the baby decision-making because of the swing-vote phenomenon?

Here you go! Drink up!

Jay said...

So is the Supreme Court still politicized and illegitimate or what?

Eli Blake said...

Calling it a tax means that someone can in fact challenge the mandate in the future, but not until 2015 after it has been paid for the first time.

Roger J. said...

This SCOTUS decision will simply put the Obamacare decision back in the realm of the political process where it should have been all along. Now Mr Romney can run on a platform of relegislating and repealing the taxation issue, an issue that resides in the legislative branch.

With 70 percent of americans opposed to the mandate (now tax) it will become a legislative issue as long as the Rs can control the house, and with any luck the senate.

Bob Ellison said...

It is the first-ever federal "head tax" in America, I think.

David said...

Ok--it's constitutional. It's still a shitty law. Time to fix it.

This is not the end of the world, people.

It will be interesting to see the commerce clause language and whether it will have significant impact for the future.

Will Obama spike the ball?

Will this make it any less difficult for Michelle to be married to a politician? I really do worry about her, poor baby.

And why was Roberts the deciding vote if the decision is 6-3?

Lem said...

I'll bet nobody had Kennedy/conservative, Roberts/liberal in their bracket,

That has me baffled.

Jay said...

So am I reading this correctly that 5 Supreme Court justices just re-wrote Obamacare so the mandate "penalty" is a tax?

Eli Blake said...

No, Palladian, I don't. Just a satisfied smile.

As the old commercial used to say,

Try it, you may discover you'll like it!

Patrick said...

And the backlash against Kelo did fuck-all.

Actually, it did quite a bit. Prior to Kelo, there was almost no protection against eminent domain for "economic development." Since then, 42 states have passed legislation that eliminates what Kelo allowed.

When I talk to the IJ people, they say Kelo was their best loss ever.

Leland said...

Tell me where I'm wrong; the Supreme Court rewrote ACA by claiming the individual mandate is a tax. The Supreme Court has no ability to rewrite legislation, only interpret it, and it chose an interpretation neither supported by the Executive nor Legislative branches of government. And although, the SCOTUS can interpret things differently than the other branches, this court decided to take it a step forward and just rewrite the law.

Alas, now the court is legitimate!

TWM said...

So it's unconstitutional under the Commerce Clause but constitutional as a tax.

That makes me feel a TON better . . .

dreams said...

This is really a tax on young people because they are healthy and its older people who are the primary users of healthcare.

Its a very unfair tax, we're ripping off our young people to pay for the affluent older people's healthcare.

Palladian said...

No, Palladian, I don't. Just a satisfied smile.

Power does that to the impotent.

Toby said...

I suppose if conservatives are going to lose, this is as good a loss as there could be. From what I've gleaned from news reports, the commerce clause justification of the mandate was tossed and the power of the federal government to strong arm the states by withholding money was narrowed, at least in this case. Not a terrible outcome from a federalism standpoint.

And its good that if the government wants to mandate some other behavior in the future, it will probably have to do so in the form of a tax. That forces the party supporting future mandates to take the political hit of supporting a tax hike, which should help limit the aggressiveness of government.

Leland said...

To David,

No, it definitely isn't the end of the world. It's only a reason to go out and vote in a new President and Senate.

bagoh20 said...

This does make the Presidential race a bit more important, if you believe Romney threat to repeal. It makes repeal harder, and more risky for the GOP.

Health care will always be a problem replete with sob stories, regardless of how we do it.

If the Repubs do repeal, they will be blamed for everything wrong with healthcare from now on.

If they don't repeal they will still be blamed because they should have.

I know one thing for sure, our business competitors off shore are happy as hell about this. It's an unprecedented jobs transfer to China. Hey, China got our stimulus!

Jay said...

by the way, it is quite clear that the "illegitimate" strategy of the left worked on CJ Roberts.

He probably actually believes that bullshit.

Sorun said...

Wolf Blitzer is plainly retarded.

LarsPorsena said...

Since the left's position was upheld, does this mean there is no 'coup' (per Fallows) in the works?

Palladian said...

And its good that if the government wants to mandate some other behavior in the future, it will probably have to do so in the form of a tax. That forces the party supporting future mandates to take the political hit of supporting a tax hike, which should help limit the aggressiveness of government.

The damage is done.

My advice, for those who die: declare the pennies on your eyes.

Matthew Sablan said...

"That forces the party supporting future mandates to take the political hit of supporting a tax hike, which should help limit the aggressiveness of government."

-- They just won't call it a tax and force the Supreme Court to find that it is one.

Bob Ellison said...

What about a fetus born with no head, or a person announced "brain-dead"? Tax them, or not?

chickelit said...

Roberts is a hydroponic plant!

Roger J. said...

I concur with Toby's point--with ACA as a tax, it makes Mr Romney's position much easier to support.

The fact (at least as I understand it) this ruling reduces the effect of the commerce clause--but IANAL (thank god)

TWM said...

Lyle: In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety."

So Kennedy is the real conservative it appears . . .

Palladian said...

So Kennedy is the real conservative it appears . . .

A foul-weather friend. He's right a lot, but when he's wrong (Kelo), he's dead wrong.

Balfegor said...

Re: Leland:

Tell me where I'm wrong; the Supreme Court rewrote ACA by claiming the individual mandate is a tax.

It depends on how devoted you are to words and formalisms. The mandate was always a tax in all but name, since that's how it was originally drafted. Democrats just put in some puffery about how it was all commerce clause so the President could make believe that he hadn't raised taxes. It's just a question of whether you think a Court can look beyond the label assigned to a provision to see whether the substance falls within an enumerated power, or the Court is bound by the labels.

I wonder too, though, whether Democrats lucked out here, in that the final version of the bill originated (formally) in the House, rather than the Senate -- with all the underhanded procedural tricks they had to pull to ram it through, one could easily imagine their having been stuck with a version originating in the Senate instead.

MikeR said...

In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety."

Whoa.

Mike Chuck said...

looks like the federal government can force you to buy anything as long as it penalizes you with a "tax" if you don't buy it.

not good.

wildswan said...

I mean under thus could you not pay, then when sick, go to doctor, get treated, make the government pay and then refuse even to pay the "tax?" It seems like that to me

TWM said...

"A foul-weather friend. He's right a lot, but when he's wrong (Kelo), he's dead wrong."

Oh I know, it's just too bad Robert's was the more liberal in this case . . .

damikesc said...

They just won't call it a tax and force the Supreme Court to find that it is one.

...in theory, couldn't conciliation in the Senate, therefore, kill Obamacare completely? It's clearly budgetary in nature.

I am stunned the Court would rule that a power that everybody argues was not being used was actually being used.

Ah, America, you were once a lovely place.

suppose if conservatives are going to lose, this is as good a loss as there could be. From what I've gleaned from news reports, the commerce clause justification of the mandate was tossed and the power of the federal government to strong arm the states by withholding money was narrowed, at least in this case. Not a terrible outcome from a federalism standpoint.

It sounds more like a justification for the government to blatantly lie to the citizenry.

Why even have a Constitution any longer? It is meaningless. When the PTB decide something will happen, they will find a reason (even one expressly argued as not being used, as was the case here) to allow it.

I am constantly amazed that no Democrat ever nominates a judge that does not do EXACTLY what they want on the SCOTUS every time, but Republicans are so terrible at doing the same.

Andy R. said...

Fix it how? Since it got passed, Republicans have been chanting "repeal and replace" but they never said what they would replace it with.

For people that are upset that ACA is what we ended up with, there have been decades and decades to offer some alternative solution.

Poor people don't get to have health insurance eventually became untenable (rightly so), and conservatives who are upset now should consider why they didn't offer any alternatives to ACA during the Bush years.

Palladian said...
This comment has been removed by the author.
damikesc said...

looks like the federal government can force you to buy anything as long as it penalizes you with a "tax" if you don't buy it.

My, I bet this won't lead to more money in politics. No chance of that happening NOW.

Yeah, CU is the decision that opened the monetary spigots. Not a case where the SCOTUS decided that the government can tax you to force you to buy a product.

Matthew Sablan said...

"Fix it how? Since it got passed, Republicans have been chanting "repeal and replace" but they never said what they would replace it with. "

-- Don't lie. Several options have been offered.

rhhardin said...

So, how big a tax can Congress threaten, to encourage you to do whatever it wants.

No limit, apparently.

Your life savings and future earnings, or buy a Volt. Your choice.

Roger J. said...

It will be interesting to see if Mr Romney gets a bump (presumably) based on this SCOTUS decision. Mr Kennedy's dissent is quite striking IMO. But SCOTUS has spoken, and now we can continue with the political processes.

firstHat said...

I don't know about anyone else, but I will be forever grateful for Ann's presence here. A bit of quiet sanity in a world gone a bit off the edge. Thanks Ann.

Fr Martin Fox said...

Re: Roberts...

Where does this leave the great hope from conservatives that C.J. Roberts is a sure vote to overturn Roe?

That has been the argument for many, to vote for Bush before, and Romney now--they'll give us good justices!

TWM said...

"I mean under thus could you not pay, then when sick, go to doctor, get treated, make the government pay and then refuse even to pay the "tax?" It seems like that to me."

I do wonder how that is going to work? Will they add a line item to the social security and medicare taxes? Does anyone in Congress even know?

bagoh20 said...

""In our view, the entire Act before us is invalid in its entirety."

This is what blows my mind. These judges were all educated by the same books, I assume they are all intelligent. They are governed by the same Constitution written in a very straightforward form of a language the all understand, speak, and write fluently.

So, how can such disparate opinion be possible?

Someone is right, I assume. So what does that say about the others?

Lem said...

Consensus..

Its more important to Roberts.. than anything else.

CWJ said...

I trust that all the previous pundits who abhored 5-4 decisions will be just as upset about this one.

JohnJ said...

SCOTUSblog: "The Court holds that the mandate violates the Commerce Clause, but that doesn't matter b/c there are five votes for the mandate to be constitutional under the taxing power."

So, essentially it was a tax all along.

Ahem!

PackerBronco said...

`When I use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

`The question is,' said Alice, `whether you can make words mean so many different things.'

`The question is,' said Humpty Dumpty, `which is to be master - - that's all.'

dreams said...

My impression is that Roberts wilted under pressure from the liberals. Also, it seems to me that you can be a good principled conservative or you can be liked by the liberals.

TWM said...

"Too bad that seizure was so minor..."

Yeah, because health care is going to be so much better when the ACA goes fully into effect.

AprilApple said...

Of course it's a tax. ObamaCare is tax payer funded health care.

Congress can repeal a tax. They rarely do, but if Romney were smart, he'd use this to his advantage.

Bob Ellison said...

Here is the decision (via SCOTUSblog).

edutcher said...

Does this mean the law would have to be rewritten, since it's not what they claimed it was?

(I know, dumb question...)

LoafingOaf said...

So much for the legal analysis of all the stupid right wing law prof blogs these past few months.

Not too mention all of the Lefty trolls and news media.

Scott said...

Unfortunately, Romney running against Obamacare is a loser. As NY Gov. Alfred E. Smith said, "Nobody shoots Santa Claus."

Say hello to Obama's second term.


Fraid not.

60% of the people don't hate Santa Claus.

Eli Blake said...

Electing Romney won't do anything.

There will still be 41 Democrats who voted for it in the Senate, no matter how big a win Republicans could put together (if they do.)


This may put control of the Senate in Republican hands - 60 of them.

cubanbob said...

MarkW said...
It's a compromise. By upholding it as a tax, they avoided expanding the scope of the commerce clause (to include virtually anything and everything the government wanted to do). It would have been much worse if they had upheld it as a mandate.

6/28/12 9:23 AM

When given lemons, make lemonade. The republicans can now honestly say the democrats have passed the largest tax hike in history and they if elected will repeal the tax. Now more than ever its important to vote a straight party ticket in November, republican.

AprilApple said...

Hey everyone. Get used to being poor. But free health care!

JohnJ said...

"So the only hope is to elect Romney?"

"It's been that all along."

Yes it has. This is just a reminder.

prairie wind said...

Try it, you may discover you'll like it!

Well, I already like the insurance policy I have and I have been told I can keep it, so maybe I will like it.

Oh, wait. I have a high deductible policy and the ACA does away with those, doesn't it? So now my insurance will cost me much, much more.

I've decided I will not like it, thank you very much.

wildswan said...

You see if you don't pay your taxes, the police still defend you. So under this wouldn't everyone have medical coverage just as they do police protection? whether taxpayer or not, would be a separate issue. Which you could not be asked. That would be like asking a Spanish speaking person if they were a citizen.

Fr Martin Fox said...

Cubanbob:

Yes, vote Republican because they gives us stalwart justices like Chief Justice Roberts!

Roger J. said...

Seems to me this is a fairly simple political consideration--taxes can be repealed--not necessarily easy, but to kill Obama care, kill the tax--this should give Rs a major platform to run on during a major recession. I think the SCOTUS served up a high hanging curve ball to the Romney campaign.

Lem said...

So, how big a tax can Congress threaten, to encourage you to do whatever it wants.

The discouraging thing to me is how rapidly a "need" can be conceived of these days..

I mean once a power has been discovered/created it will be irresistible not to go down that road again.

Palladian said...

Yeah, because health care is going to be so much better when the ACA goes fully into effect.

Oh come now, do you think our betters, like Roberts and Obama, will have to suffer like the rest of us?

Of course not! For reference, see England.

EMD said...

You see if you don't pay your taxes, the police still defend you.

The police rarely defend anyone. They just show up in time to count the corpses and bring in the CSI guys.

Jane said...

So is this really, then, the first instance of a head tax, a true "flat tax" in which everyone pays the identical amount regardless of income?

Roger J. said...

And actually I see a bit of wisdom in the SCOTUS decision: recognizing this as a political issue, they put it back in play as a political issue.

Those guys are actually pretty sharp--a great way to kick the can down the road.

Shanna said...

It doesn't matter that the Court affirmed that the justification for the mandate was a big, fucking lie, and it really is a tax.

Nothing can stop the Feds at this point, and most people don't really mind.


Some people mind, a lot of people mind on the health care law. They will mind even more when they get a feel for how it's actually administered.

It was too good to be true, thinking the court would strike it down. They aren't that brave.

Leland said...

Balfegor,

It is the rub. Most of us recognized it as the tax it was, so from that stance; its a reasonable interpretation. But as the Professor points out in a new post; Obama told us, the American people, that it was something else. He either lied or was incompetent to recognize a tax despite being a Constitutional law scholar.

I am happy to see the law failed in relation to the "Commerce Clause". I do think that might even leave room for additional judicial arguments. But the better solution is to get a new government that prefers not to create new taxes and lie to the public about doing so. The best solution is a government that will repeal the tax; but I'm not sure Romney will be the man.

Here's a question for the Professor; had this ruling come earlier in the primary season, what would it have done to Romney's chances?

deborah said...

Calling it a tax means that someone can in fact challenge the mandate in the future, but not until 2015 after it has been paid for the first time.

So now will come the tweaking. How soon before the age requirement for Medicare is lowered, or COBRA is extended indefinitely for those above a certain age?

I predict that Romney with a Republican House and Senate will do little to walk it back.

Barger said...

Well, I'll no longer rely on Intrade for my Super Bowl picks.

wildswan said...

Free universal health care, so free even the government doesn't have to pay? which it can't because it can't collect from the taxpayer? This, I think is a whole new ball game but it is so complex and what do I really know? But in America it seems to me, people always play the angles and it seems to me that if something is essentially free and that is what this is saying, then people won't pay.

TWM said...

"Oh come now, do you think our betters, like Roberts and Obama, will have to suffer like the rest of us?

Of course not! For reference, see England."

Sorry, I left out the sarcasm sign I guess . . .

Fen said...

So is this really, then, the first instance of a head tax, a true "flat tax" in which everyone pays the identical amount regardless of income?

Ah, but thats not "fair". You can be sure the first step the Left takes is to make you pay your "fair share".

Joe Schmoe said...

For conservatives and libertarians like myself, there is no upside to this right now. A bad, ill-formed law was upheld by the supposedly politicized, partisan '5-4' vote. Romney should decry this tax increase and govt. expansion loudly and forcefully right now. But to say this is some boon to his campaign, or positive for some other reason, is just attempted fabrication of the silk purse from the sow's ass epidermis. This is a big setback.

Paul Zrimsek said...

So the upshot is that the federal government is no longer confined to its enumerated powers-- provided only that enforces its seizure of extra-enumerated powers solely by means of fines, and has the IRS collect the fines.

edutcher said...

Fr Martin Fox said...

Cubanbob:

Yes, vote Republican because they gives us stalwart justices like Chief Justice Roberts!


Depends on the Republican.

Dubya, a big government Conservative, gave us a big government Conservative for the Court.

Seeing Red said...

“Wherever there is a jackboot stomping on a human face there will be a well-heeled Western liberal to explain that the face does, after all, enjoy free health care and 100 percent literacy.”
― John Derbyshire

bagoh20 said...

This is a big pussified kicking the can down the road. The issue now remains unresolved basically forever. It might not be repealed, and even if it is, it can be redone after 2016. Thanks for doing nothing Mr. Roberts, but extending the whole mess indefinitely.

I wanna know who dropped the ball on that coup we had going.

dreams said...

When Romney is elected, he will have to expend political capital in helping the republicans overturn ObamaCare which is political capital he needs to fixed our failed economy so said an investment analyst just now on TV. Unfortunately, I think he is right.

Lyssa said...

Oh, wait. I have a high deductible policy and the ACA does away with those, doesn't it? So now my insurance will cost me much, much more.

This decision literally may affect whether or not my child is raised in daycare. We'd like my husband to stay home, but he now works for a big company with cheap insurance, while I work for a tiny one with very pricey coverage.

We priced insurance a few weeks ago, and were surprised at how inexpensive individual policies could be, and it seemed like a good possibility. I assume that all goes out the window now.

Shit. Up to a few minutes ago, at least I was consoling myself that this really didn't affect my life all that much.

Methadras said...

Palladian said...

So the only hope is to elect Romney?


If he holds his promise of issuing a waiver to all 50 states? Then yes and for that alone it would be worth it.

Jane said...

Did Obama lie when he said "it's not a tax"? Of course. But as we know from the Stolen Valor ruling, lying is protected by the First Amendment.

I Callahan said...

Depends on the Republican. Dubya, a big government Conservative, gave us a big government Conservative for the Court.


It will be interesting to see whether Romney is any less of a big-government conservative or not. I'm suspecting the former, since the law in question is Romney's baby (state law or not).

TWM said...

"Shit. Up to a few minutes ago, at least I was consoling myself that this really didn't affect my life all that much."

It's going to negatively affect every American's life. My only solace is that it is going to hurt liberals just as much. Maybe more because they will once again find out there is little hope and only bad change with this guy.

Bob Ellison said...

Lyssa, much as Romney will have to price his election (vote-wise) outside the stealable range, you must try to price your child's health care outside the taxable range.

wildswan said...

"Not having insurance triggers a tax" Scotus

Cancel everything I asked before.
You don't have insurance so you do have a tax.
If you owe the tax, do you or do you not have insurance?
If you pay the tax do you have insurance?
Or is that a separate bill? So you owe twice as much as before?
I mean where is this tax going - into government health coverage or into general revenue?

Bryan C said...

"It's just a question of whether you think a Court can look beyond the label assigned to a provision to see whether the substance falls within an enumerated power, or the Court is bound by the labels."

I get that, to some extent. But what you consider a "label", I'd consider the law. This practice seems to require arguing simultaneously that the Court must consider the text of the law as passed as having legal force and yet must also "look beyond" the text to essentially rewrite an otherwise unconstitutional law.

If the court wants to say that this sort of thing would have been legit if it were done as a tax, they should have tossed out this non-tax version of the law and required Congress to pass a version which is valid, as written, as a tax. That's what Congress is for.

The Supreme Court shouldn't act as the ex-post-facto conference committee for a Constitutionally incompetent Congress and Executive.

MikeR said...

A couple of commenters have said that now the government can force us to do anything, just call the penalty a tax. Is that true? It seems to me that the mandate isn't far from a real tax: A way to pay for the law. Granted they tried to hide it...

caplight45 said...

When the desirable jobs are spending other peoples’ money, reporting on spending other peoples’ money and lobbying to spend other peoples’ money, then you know that the society is f**ked.

totalitarian democracy is a term made famous by Israeli historian J. L. Talmon to refer to a system of government in which lawfully elected representatives maintain the integrity of a nation state whose citizens, while granted the right to vote, have little or no participation in the decision-making process of the government.

DADvocate said...

Time to start figuring out how to fix ObamaCare. There is no doubt it will prove to be a disastrous cluster fuck. Wonder if we'll be able to come up with something better before too many people die.

Andy R. said...

totalitarian democracy is a term made famous by Israeli historian J. L. Talmon to refer to a system of government in which lawfully elected representatives maintain the integrity of a nation state whose citizens, while granted the right to vote, have little or no participation in the decision-making process of the government.

You should come to an Occupy protest.

Methadras said...

This country has now become Greece, Spain, and France on one of the most confusing ruling to date. Stockton is only the beginning. Detroit and Camden are the snapshots of whats to come.

caplight45 said...

In a couple weeks I will be getting my ten year colonsocopy. The difference between that and this is that I won't feel the colonoscopy becasue they will put me to sleep.

Methadras said...

It appears that now congress can mandate anything under the auspices that it is a tax and not a mandate and they can legislate it. It also appears that the threat of a president on the SCOTUS to uphold this law worked.

Bryan C said...

"which is political capital he needs to fixed our failed economy"

It's the same thing, now. Now that the mandate is out of the closet as a huge tax, it's easy to argue that it will be one of the major obstacles to fixing the failed economy. It's not helping anyone, it's very very expensive, and why did Obama think it was such a wonderful plan to raise taxes in the middle of an economic disaster?

Fr Martin Fox said...

Edutcher:

Well, let's review:

Eisenhower gave us:

Earl Warren, Potter Steward and William Brennan

Nixon gave us:

Blackmun, Powell and Rehnquist

Ford gave us:

Stevens

Reagan gave us:

O'Connor, Scalia and Kennedy.

Bush I gave us:

Thomas and Souter

Bush II gave us:

Roberts and Alito.

Now, let's also recall:

The infamous Roe case was given us by the following justices named by Republicans:

Blackmun, Brennan, Burger, Powell, Stewart.

Then, in 1992, when Roe was up for reconsideration in Casey, the majority that upheld Roe was the gift of the following majority:

O'Connor, Kennedy, Souter, Blackmun, Stevens.

(Note: they were all appointed by Republican presidents promising judges that practice restraint.)

So this fall, we can play the game again: Romney and his folks will say, you must vote for me because I'll pick good justices! Just like...hey! a unicorn!"

Jane said...

Also, it doesn't really matter what Congress labels the required payments. Any money that Congress collects from individuals without providing a direct service or benefit is a tax. This is no different than calling Social Security and Medicare taxes "contributions" -- they're constitutional because they're taxes, no matter how they're labelled.

damikesc said...

It appears that now congress can mandate anything under the auspices that it is a tax and not a mandate and they can legislate it. It also appears that the threat of a president on the SCOTUS to uphold this law worked.

So, in theory, Republicans could push through a bill stating that if one does not vote Republican they will pay a higher tax...and SCOTUS would be cool with that.

Intriguing.

At least this screw-up can be laid at the feet of the morons who passed the 16th Amendment. Idiots all.

PatCA said...

A glooming peace this morning with it brings.
The sun, for sorrow, will not show his head.
Go hence, to have more talk of these sad things.
Some shall be pardoned, and some punish├Ęd.
For never was a story of more grief
Than this of Obamacare and the SCOTUS Chief.

Marshal said...

Andy R. said...

You should come to an Occupy protest."

Why? Are taking drugs, shitting on police cars, and raping women enjoyable and distracting that the destructive path our country is on no longer seems a big deal?

Matthew Sablan said...

Dami: No. Because that's clearly a First Amendment violation. They could, however, place a tax on, say, on not owning a firearm.

kentuckyliz said...

What would prevent someone from using the car insurance strategy: buy health insurance right before filing taxes, avoid the penalty tax to the IRS for not having health insurance, get tax refund, drop health insurance?

Tibore said...

"For conservatives and libertarians like myself, there is no upside to this right now."

Disagree. It was struck down under the Commerce Clause and only upheld as a tax. That would subject it to repeal down the line. ACA has been shown not to be anything other than another political program, and as such is subject to the dictates of the electorate.

Like Instapundit said: "The Supreme Court has refused to save us from ourselves. The remedy now will have to be political." So be it. Vote for non-socialists from here on out. There's a big club to use: Obama lied, it's a tax, the Supreme Court said so (and so did Obama's advocate in the court, BTW. So yes, the administration DID lie because it told the populace one thing then said another in front of the Supreme Court). Vote to lower taxes. Same message that's always been out there. The SC just put the power to control it right back into voters hands, where it should have been all along.

Methadras said...

I think Roberts was sending a message in that he couldn't see a way around the mandate outside of saying it was a tax from a constitutional point of view. So he looks like he's upholding the Constitution while avoiding the activist right wing smear charges upon the court, but kicking the can down the road to let congress repeal this thing in part or wholesale. Either way, it's still CYA and an FU to this country.

EMD said...

Roberts has done the populace a favor, although it doesn't seem like it.

dreams said...

I think we have finally reach the apex of the roller coaster, hang on, its going to be a steep decline.

Matthew Sablan said...

Interesting notice: This is a deeply divided, strained, 5-4 decision. Is that guy's life still a fraud?

Lyssa said...

Lyssa, much as Romney will have to price his election (vote-wise) outside the stealable range, you must try to price your child's health care outside the taxable range.

Oh, the kid will have healthcare, that's not a question. We put health insurance right up there with food. It's just a question of whether or not it is still feasible for my husband to leave his job, given that it would mean exchanging his cheap insurance for a private plan.

Smith said...

"The individual mandate survives as a tax."

Wasn't the mandate was a Republican idea in the first place?

Jane said...

Here's a fun game: income tax is 20% + $1,000 for everyone. Offer a tax credit of up to $1,000 for all broccoli purchases. yay!

Matthew Sablan said...

"Wasn't the mandate was a Republican idea in the first place?"

-- A version of it, yes. But not this version, and certainly not married to the rest of the messed up bill. But, if it makes you feel superior to think shallowly, go ahead.

Mel said...

I really thought Roberts would give some "pay back" for the tongue lashing the SCOTUS recieved from Obama during that State of the Union over the campaign finance ruling.

Methadras said...

Mel said...

I really thought Roberts would give some "pay back" for the tongue lashing the SCOTUS recieved from Obama during that State of the Union over the campaign finance ruling.


Nope. Looks like he caved into it.

GetReal said...

Mitt Romney says that the individual mandate is the "ultimate conservatism":

http://www.youtube.com/watch?v=JIPynMZuQtI

Eat it, reptiles.

Methadras said...

Today, the great experiment of freedom, liberty, and the consent of the governed that our founders left for us to follow has been subverted to the will of the elected in contravention to the founders. They are wherever they are shrugging their shoulders and saying "Meh, we gave it a shot. It didn't work."

We as a people still have a shot at reclaiming the legacy of what our founders wanted for this country as the experiment of what freedom and liberty mean for its citizens. I don't know if the will is there anymore when the wind gets kicked out of your sails like this. However, I for one am not deterred. This is still the greatest country on earth, but it's luster is being eroded by these people and the sheer weight of these laws. It's time to try and reverse this.

Methadras said...

GetReal said...

Mitt Romney says that the individual mandate is the "ultimate conservatism":

http://www.youtube.com/watch?v=JIPynMZuQtI

Eat it, reptiles.


Maybe he's had an 'evolved' change of heart.

Paul Zrimsek said...

Here's a fun game: income tax is 20% + $1,000 for everyone. Offer a tax credit of up to $1,000 for all broccoli purchases.

They don't even have to resort to that subterfuge, now. They can leave the tax rate where it is, impose a $1000 fine for not buying broccoli, and wait until they get to court to call the $1000 a tax.

Balfegor said...

Re: Matthew Sablan:

"Wasn't the mandate was a Republican idea in the first place?"

-- A version of it, yes. But not this version, and certainly not married to the rest of the messed up bill. But, if it makes you feel superior to think shallowly, go ahead
.

I think another key point -- one that Romney, unfortunately cannot use -- is that we tried a similar mandate scheme in Massachussetts and it kind of failed. Since the date of that article, there has been some moderation in the year-on-year increases in premiums, but they are expected to resume "the double-digit annual increases of the past decade" this year or next.

Angfuin said...

When he was elected I was afraid. I told myself firstly, that the threat he represents could never come from one man or one generation but was the culmination of a movement for revolution by increments. A chronic infection.

Secondly, I told myself that the alternative "choice" was also infected. That whoever wins in every election we face the same adversary and the same struggle for freedom against the same long odds.

This morning I am afraid. I don't know whether free people will go down still proclaiming freedom or whether they will be slowly crushed and end up forgetting that anything but poverty was ever possible.

There may be no better reason to be scared than there has been for a very long time now. But I'm feeling it more. Maybe I'll adjust to poverty. Maybe I'll just die sooner. Maybe I'll wake up. I want to wake up now.

Mostly I want to know where to make common cause. I don't feel like I can trust anyone. It's not fun.

Andy R. said...

It's kind of uncanny how much the cranky commenters here sound exactly the same as the caricatures that gloating liberals are engaging in on Twitter.

Yglesias, for example: "Who will be the first to introduce a bill levying a $100 tax on people who don't eat broccoli? ‪#tyranny‬"

vbspurs said...

Glass half full, my fellow Republicans. Even if it's a glass full of piss and venom.

Cheers,
Victoria

vbspurs said...

...or do you forget how MUCH Americans HATE taxes? Althouse has it exactly right: Romney can run against a President who will kill the middle-classes with taxes.

Revenant said...

I had to laugh when I saw this. All the histrionics from the left over the last weeks, and the mandate survives anyway. :)

Andy R. said...

I had to laugh when I saw this. All the histrionics from the left over the last weeks, and the mandate survives anyway. :)

Speaking of histrionics, have you read the comments here?

Chip S. said...

John Adams just seanced me that he'd like to update his famous dictum to read, "A government of lies and the men who enforce them."

Chip S. said...

Wow, AndyR, Yglesias is even dumber than I thought.

The tax will be on non-broccoli and other unhealthy foods.

He's from NYC, so I kinda thought he'd be up on the latest from Bloombergia.

caplight45 said...

Romney could say we crafted a well thought through bill etc. The President's plan was written by special interests and lobbyists, contained secret deals and payoffs to his key constituents and funders and was not even read by the Democrat Congress Critters that voted yes for it. They (Pelosi) bragged about it (You have to pass it to see what's in it). Is that how you want government to serve you?

Revenant said...

Speaking of histrionics, have you read the comments here?

Well, I would expect people to be upset. Obama successfully imposed the largest middle-class tax increase in American history. That's the sort of thing that upsets people. :)

The important thing is that the commerce clause power didn't get expanded. That really would have been the end of the tenth amendment.

Revenant said...

You see if you don't pay your taxes, the police still defend you

That's news to me. The one time someone tried breaking into my house, the cops didn't show up until a few hours later.

Palladian said...
This comment has been removed by the author.
Balfegor said...

Re: Andy R:

Speaking of histrionics, have you read the comments here?

No, my manservant is reading them for me while I recuperate on my fainting couch here.

Robert Cook said...

Here's a critique of Obamacare and of the Court's decsion...from the left:

http://www.counterpunch.org/2012/06/28/obamacare-wins-we-lose/

Chip S. said...

How about a hyperlink, RC? I hate cut-and-paste.

Andy R. said...

"Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so. The whole thing remains unconstitutional."

-Senator Rand Paul

That's so deliciously dumb I'm going to have a big bowl of it for dessert.

Andy R. said...

Here's a critique of Obamacare and of the Court's decsion...from the left:

Yeah, my facebook is blowing up with comments from my Occupy friends complaining about the ACA.

Matthew Sablan said...

Andy: Actually, the senator is correct, as the decision could be revisited in the future and the precedent over turned. It probably won't happen any time soon, but it is possible. If the court found it was Constitutional to say, murder all Christians, that doesn't make it so.

Mike said...

So now legislation that originates in the Senate can be called a "tax" too. When did this change to the constitution happen?

Robert Cook said...

"How about a hyperlink, RC? I hate cut-and-paste."

I don't know how to do that.

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