Althouse: "It is not our job to protect the people from the consequences of their political choices."

June 28, 2012

"It is not our job to protect the people from the consequences of their political choices."

That's the quote from Roberts' opinion that he extracted up front as he began the announcement of the opinion today.

There's material throughout his opinion — which I've highlighted in my various posts today — that calls attention to the flawed mechanisms of the universal-health-coverage scheme. Most notably, the individual mandate is only constitutional because it's optional, and people can simply pay the "penalty" (now known as the tax) to the federal government as long as they don't want to buy health insurance. If people behave rationally and weigh the costs against the benefits, they won't buy insurance until their expenses (health care costs + the penalty) exceed the premiums, and the insurance companies will not amass premiums from the vast numbers of healthy people who pay in more than they receive. It seems like a design for collapse, but, as Roberts says: That's not his concern.

AND: To say it's a "design for collapse" is to set up the question whether it was a screw-up or whether it was the first move in a scheme to take us to a single-payer, government health care program.

MORE: This calls to mind the old Pelosi quote:

"But we have to pass the bill so that you can find out what is in it."

We found out today, I think. Have you noticed yet?

271 comments:

1 – 200 of 271 Newer› Newest»

NorthOfTheOneOhOne said...: And he's 100% right.; 6/28/12, 6:54 PM
ampersand said...: "It is not our job to protect the people from the consequences of their political choices."

More like " Flounder, you can't spend your whole life worrying about your mistakes! You fucked up... you trusted us!"

WTF! Isn't the court supposed to protect the minority?; 6/28/12, 6:56 PM
NorthOfTheOneOhOne said...: If people behave rationally and weigh the costs against the benefits, they won't buy insurance until their expenses (health care costs + the penalty) exceed the premiums, and the insurance companies will not amass premiums from the vast numbers of healthy people who pay in more than they receive. It seems like a design for collapse, but, as Roberts says: That's not his concern.

What about those of us who get their Medical Insurance from their employer. My wife is just giddy that the SCOTUS upheld the mandate, I hate to break it to her that I fully expect that my employer will opt out of offering health coverage in about 2 and a half years.; 6/28/12, 7:02 PM
Brian Brown said...: And that closes the circle of Roberts' argument.

He's essentially saying that political winds will prevent Congress from taxing you for not eating broccoli.; 6/28/12, 7:05 PM
KCFleming said...: Expect MD unions within 2 years.; 6/28/12, 7:05 PM
Anonymous said...: But the Court is not responsible for fixing Congress' mistakes, either, which it seems to me it is doing.

Or can Roberts simply ignore how he has changed the historical consequences of the now tax?; 6/28/12, 7:08 PM
Revenant said...: It is a good line, but I prefer Mencken's: "Democracy is the theory that the common people know what they want, and deserve to get it good and hard." :); 6/28/12, 7:09 PM
Ralph L said...: We found out today, I think
Some of us already knew it would ruin private insurance and assumed it was designed to do so. I wish the people who voted for this could feel all the consequences of it while the rest of us are spared, but it will largely be the other way around.; 6/28/12, 7:12 PM
Oso Negro said...: Has there ever been a justice appointed by the Democrats who proved to be a conservative? It appears the Republicans are routinely surprised.; 6/28/12, 7:16 PM
Oso Negro said...: Has there ever been a justice appointed by the Democrats who proved to be a conservative? It appears the Republicans are routinely surprised.; 6/28/12, 7:16 PM
Lem Vibe Bandit said...: It is not our job to protect the people from the consequences of their political choices.

Roberts would not have been a "Good Samaritan".; 6/28/12, 7:17 PM
coketown said...: All this raises a very pressing question: Is it "Roberts' opinion" or "Roberts's opinion?" Throughout elementary school I learned that one of the things that separates us from both the apes and the British is that possessives ending with s still assume an apostrophe-S: "Roberts's."

The coverage today has been unclear, with various publications yielding to different standards.; 6/28/12, 7:20 PM
Lem Vibe Bandit said...: Now I'm reading than rather being "off his meds".. it could have been Roberts meds clouding his judgment..

the irony.; 6/28/12, 7:21 PM
Michael said...: ObamaCare is like the Euro. Both were intentionally designed to fail: in the case of the Euro to force fiscal and financial integration to the benefit of the Brussels elite, and in the case of ObamaCare to destroy any alternative to single payer. And in both cases to accomplish something that never would have received approval by the people if they were consulted democratically.; 6/28/12, 7:22 PM
coketown said...: Amusingly, Roberts's opinion was filled with blatant slaps in the face to Obama and the people who voted for him. Awesome. But I'd hate to go through all that again. Quite taxing. Eh, Obama?; 6/28/12, 7:22 PM
sane_voter said...: Pelosi Galore makes me sick.; 6/28/12, 7:23 PM
Lem Vibe Bandit said...: I hear you Coketown.

I'm using one s because to use two would be akin to giving up on the chief altogether..

To me he still not the SS.. despite this horrendous decision.; 6/28/12, 7:25 PM
Methadras said...: I've said this before many times that this provision will eliminate medical insurance companies in 5 years or so if it isn't waived or struck down and the government will become the sole provider of health services. This whole problem could have been easily handled if insurance companies were allowed to compete across state lines. Why that wasn't even addressed I have no idea.; 6/28/12, 7:26 PM
Michael K said...: The incentives in this law are so perverse that, if you want to believe it was passed as a good faith effort to save cost, you can't explain it. The only cost saving measure is the "death panels'.; 6/28/12, 7:28 PM
Saint Croix said...: This is a must read. Thoughts from Paul Clement, the guy who made the oral argument for the states.

One big aspect of Roberts opinion is that Obamacare is far easier to overturn now in Congress. Before his opinion, we needed 60 votes in the Senate to overturn a filibuster. Are we going to flip that many Senate seats in November?

But look what Roberts did. He not only sent the case back to Congress, he stripped it of the bullshit. It's a tax case. It's a budget case.

And 51 votes is all you need!

Roberts not only made overturning Obamacare far more democratic, he also made it far more likely!

Complain about that, Akhil Amar!

Majority rule!

So the dishonest and sneaky attempt to impose Obamacare by hook or by crook--and then rely upon the Senate filibuster to keep it--has been thwarted. It's now a straight up and down budget vote.

Thank you Justice Roberts. I like this opinion more and more!; 6/28/12, 7:30 PM
coketown said...: To me he still not the SS.. despite this horrendous decision.

That takes me back to the Bush years. John RobertS'S opinion. Herr RobertS'S opinion. Supreme KKKourt. Du wirst der Brokkoli Ihre essen!; 6/28/12, 7:30 PM
Seven Machos said...: I know a lot of conservatives are bitching about this decision. But it was the right one under any constitutional analysis. This monstrosity that is Obamacare is surely a tax, and Congress surely has the power to tax. The Court got it right today.

Bad law isn't illegal. We found out today that Congress can deceive and trick the electorate, which is sad, but there's really no other way. Congress has its powers. The Supreme Court can't make Congress go to its room and not come out until it fesses up about what it did.; 6/28/12, 7:31 PM
wyo sis said...: Isn't the court supposed to protect the minority?

I thought it was supposed to protect the constitution.; 6/28/12, 7:34 PM
Anonymous said...: I'm opposed to single payor HC. But I'm not sure I buy it that Obama and Pelosi had some nefarious long-term scheme to destroy private insurers and create a single payor plan.

Did the creators of Fannie Mae believe that the federal government would eventually take over the mortgage market? Was that the plan all along?

I also think that there's a high level of uncertainty here. If insurers start to exit the market and/or go bankrupt, how in the world will our highly-indebted government bail them out. It's not at all certain that the country will have the financial resources and political will to execute a takeover of the HC system. Maybe.

This ruling - by upholding the mandate but also giving everyone the political cover to ignore it and pay the penalty - is probably the most disruptive of all possible rulings.

Who knows what the new equilibrium will be. We won't know for years.; 6/28/12, 7:38 PM
Seven Machos said...: Which minority is that Sis?; 6/28/12, 7:39 PM
PackerBronco said...: "It is not our job to protect the people from the consequences of their political choices ...

... unless those people are in the government and their political choice was to pass a stupid mandate which I'll interpret as a tax so that they won't have to."; 6/28/12, 7:40 PM
Methadras said...: Saint Croix said...

This is a must read. Thoughts from Paul Clement, the guy who made the oral argument for the states.

One big aspect of Roberts opinion is that Obamacare is far easier to overturn now in Congress. Before his opinion, we needed 60 votes in the Senate to overturn a filibuster. Are we going to flip that many Senate seats in November?

But look what Roberts did. He not only sent the case back to Congress, he stripped it of the bullshit. It's a tax case. It's a budget case.

And 51 votes is all you need!

Roberts not only made overturning Obamacare far more democratic, he also made it far more likely!

Complain about that, Akhil Amar!

Majority rule!

So the dishonest and sneaky attempt to impose Obamacare by hook or by crook--and then rely upon the Senate filibuster to keep it--has been thwarted. It's now a straight up and down budget vote.

Thank you Justice Roberts. I like this opinion more and more!

I said this earlier today:

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 because it sets up congress to now repeal it and if they don't there will be utter hell to pay and we still get stuck with this monstrosity of a law and all of it's unintended and intended consequences.; 6/28/12, 7:40 PM
bagoh20 said...: " But it was the right one under any constitutional analysis."

4 impressive S.C. Justices disagree. 5 if you count Roberts before he changed his mind.

It may have it's silver linings, but Roberts simply should have done the right thing and protected the voters from a Congress that was clearly and purposefully deceiving the voters. It's not just bad law, it's corrupt law.; 6/28/12, 7:42 PM
Lem Vibe Bandit said...: Bad law isn't illegal.

Alls I want to know is.. is the law constitutional..or not. and leave the semantics out of it.; 6/28/12, 7:42 PM
PackerBronco said...: Tim DeRoche said...
I'm opposed to single payor HC. But I'm not sure I buy it that Obama and Pelosi had some nefarious long-term scheme to destroy private insurers and create a single payor plan.

I don't think so either. I think their plan only goes as far as co-opting private insurers by specifying exactly what coverage they have to offer and then forcing the general public to pay those policies and no others.

After all, why pass laws when you can have the HHS Secretary mandate things which have the same effect as laws? And why pass a tax to fund your pet social program when you can get the same result by increasing insurance premiums for policies that people are obligated to buy?

You want to make contraceptives free for the middle class? Don't pass a bill. Don't pass a tax. Make it part of the mandated coverage.; 6/28/12, 7:43 PM
cubanbob said...: Besides repeal this bill exemplifies why a constitutional amendment curbing the power to tax is needed.

If the House leaders had any sense they would get to work on this ASAP and force a vote. This will crystalize the difference between both parties as much as anything can.

Also for fun and giggles the House ought to pass a $30,000 tax for the able bodied on welfare who do not get a job within one year and pass a hefty tax on a woman who has abortion for any reason other than the life of the mother.; 6/28/12, 7:45 PM
Lem Vibe Bandit said...: This comment has been removed by the author.; 6/28/12, 7:46 PM
Methadras said...: bagoh20 said...

" But it was the right one under any constitutional analysis."

4 impressive S.C. Justices disagree. 5 if you count Roberts before he changed his mind.

It may have it's silver linings, but Roberts simply should have done the right thing and protected the voters from a Congress that was clearly and purposefully deceiving the voters. It's not just bad law, it's corrupt law.

Well, that's just it, he didn't when he knew that he could of. He back-doored this law back onto congress in effect instead of doing it right and shit-canning it for the egregious piece of used toilet paper it will become. So the question to ask is why did he do it? I really do think that he took the notion that truly felt threatened by Obama's threat against the court in the accusation of being a right-wing activist jurist pool and this was his way of saying, "No we are not. Do you like us now? Pretty please with sugar on top. We are harmless."; 6/28/12, 7:48 PM
Lem Vibe Bandit said...: What pakerbronco said @ 7:40.; 6/28/12, 7:49 PM
bagoh20 said...: Althouse might break 1500 comments today. Probably 1200 already. Cha Cing!; 6/28/12, 7:50 PM
Methadras said...: cubanbob said...

Besides repeal this bill exemplifies why a constitutional amendment curbing the power to tax is needed.

If the House leaders had any sense they would get to work on this ASAP and force a vote. This will crystalize the difference between both parties as much as anything can.

Also for fun and giggles the House ought to pass a $30,000 tax for the able bodied on welfare who do not get a job within one year and pass a hefty tax on a woman who has abortion for any reason other than the life of the mother.

I've always said that passing a constitutional amendment in this day and age is next to impossible and frankly it should be. As it would highlight the power of what it really takes to amend this fantastic document. However, to pass an amendment like this ma be what's needed to curb congress from pulling this horseshit again, but I suspect it won't ever happen. But there might be motivation to begin an amendment process because of this law alone.; 6/28/12, 7:50 PM
Bleach Drinkers Curing Coronavirus Together said...: Are you all eating your veggies now?

Or are you still up in arms and busily venting, waxing revolutionary about something with which the Founders obviously had no problem?

And on some level, despite the practicality, I can sympathize with unease over the breadth of this.

But if you'd ever worked for a better work-around for problems as morally wrong and disturbing as situations like this, then you could have have been enjoying some credibility by now.

But you didn't.

Enjoy the consequences. I hear conservatives love reminding people that life's full of them. And they aren't always ideological. Sometimes they're practical. Sometimes political. Sometimes moral. And human. Sometimes life or death.

Learn about them, sometime.; 6/28/12, 7:52 PM
Mogget said...: The House will vote to repeal Obama Health Tax on 9 July, according to Eric Cantor; 6/28/12, 7:53 PM
Seven Machos said...: Results-oriented judicial activism is always bad. It doesn't matter if it comes from the right or the left.

If you acknowledge that Congress has plenary-ish taxing power, which it does, and if you acknowledge that we have here a tax, which we do, then the only question is: must Congress be honest about its use of the tax power?

The Constitution is utterly silent on this issue. Political reality requires that the Supreme Court defer to a deceitful Congress.; 6/28/12, 7:54 PM
Anonymous said...: What's the point of amending the constitution when nobody follows it anyway.

We are in the era of pure power politics, where the color of lawfulness is barely attempted.

And we'll stay in this era until we kick the weasels out, every last one of them.

SO let's get to it.; 6/28/12, 7:56 PM
Seven Machos said...: Hey, it's Ritmo Urban Dribbler, Constitutional Scholar Extraordinaire. Tell us the one about how John Paul Stevens was a conservative! Tell us about how all the conservatives sided with the evil corporations in Kelo. I fucking love those stories.

I'm sure Ritmo was prepared to froth forth, regardless of the 5-4 decision the Court made.

Good luck in November, Ritmo. Will we see you election night?; 6/28/12, 7:57 PM
Lem Vibe Bandit said...: We found out today, I think. Have you noticed yet?

A humongous tax.

I wish the professor shelve that Socratic method.. at least until I healed from the Roberts pummeling.; 6/28/12, 7:57 PM
bagoh20 said...: Methadras, I hope that's not it. I know they are human, but I do imagine them to be better than sniveling toady humans. Then again, they are lawyers.

I'm thinking it might just be bad effort by Roberts due to fatigue, or confusion over competing loyalties or principles. I think he might of just blown it on a very big case. The Solicitor General certainly did, not that it mattered. His pathetic performance actually won. What does that tell you? The S.C. was not a very impressive venue with this whole case.; 6/28/12, 7:58 PM
Bleach Drinkers Curing Coronavirus Together said...: I love how batshit insane Mr Machos (the number "seven" is merely descriptive of his sperm count) goes when he has to take his precious conservatives back to school.

It's fun to watch.; 6/28/12, 8:00 PM
Revenant said...: Also for fun and giggles the House ought to pass a $30,000 tax for the able bodied on welfare who do not get a job within one year and pass a hefty tax on a woman who has abortion for any reason other than the life of the mother.

I made a similar observation back when ObamaCare's defenders were arguing the mandate was a tax instead of a penalty. I never thought the court would be dippy enough to actually call the mandate a tax, though.

The key point is this -- the SCOTUS ruled, today, that Congress can apply targeted taxes to people who refuse to do something the government cannot actually require them to do.

Think of all the things the Constitution forbids the government from doing. Things like "searching your home without a warrant". "Imprisoning you without charge". "Requiring you to attend Christian religious services". Etc.

Imagine a $2500 tax on anyone who, at any point during the previous year, has been asked to consent to a police search and said "no". Throw in some language about it only applying to something emotional and politically sensitive, like "child molestation" or "selling drugs near schools", just to get the law's metaphorical foot in the door. It can always be expanded later.

Unthinkable? Yesterday, sure. Today? Hm. The majority's logic here is cause for concern. In some ways, cause for greater concern than it would have been if the law had been upheld as a commerce clause power.; 6/28/12, 8:07 PM
bagoh20 said...: The S.C. should not be telling voters to get back to the voting booth and do better, that's not their job - they should be telling Congress to go back to the drawing board and do better. The S.C. was evaluating this law not an election. We can't vote for representatives based on how they crafted a single law of many. If we voted every month, maybe we wouldn't need a S.C., but that too isn't constitutional.; 6/28/12, 8:09 PM
Seven Machos said...: Rev -- You are usually great at spotting and destroying ridiculous slippery slopes. Not today, I guess.; 6/28/12, 8:12 PM
edutcher said...: Mr Justice Roberts sounds annoyed we required him to take time away from his summer to deal with our puny little country.

Oso Negro said...

Has there ever been a justice appointed by the Democrats who proved to be a conservative? It appears the Republicans are routinely surprised.

I don't doubt they've had their surprises, as this one is. Roberts has been fairly reliable up to this week (The Anchoress subscribes to the theory he did Little Zero no favors).

O Ritmo Segundo said...

I love how batshit insane Mr Machos (the number "seven" is merely descriptive of his sperm count) goes when he has to take his precious conservatives back to school.

IIRC, more often than not, it's Ritmo that Seven takes back to school.; 6/28/12, 8:12 PM
Patrick said...: Ritmo, I wouldn't say it's 100%, but lots has been written about the maritime acts. Very very different than the ACA. If you're going to link, you ought to tell both sides of the story; 6/28/12, 8:13 PM
traditionalguy said...: This comment has been removed by the author.; 6/28/12, 8:14 PM
Dante said...: I'm wondering what kind of tax this is. With income tax, ones income is taxed. With Social security, ones income is tax. Same with capital gains. When you buy something you aren't forced to, that's taxed too, but you have to buy the money to do it.

Now, as it relates to the supreme court decision, not the law, is there anything preventing the law from having read "You have to buy health insurance, or be fined $X, regardless of how much money you make, and regardless of whether you own any property"?

I'm sure the law has put cushions in place, I'm wondering about the general kind of tax. This tax seems more like a poll tax than anything else.; 6/28/12, 8:15 PM
Mel said...: I work in the billing end of healthcare and have always known this was to get everyone into the state exchanges, which the states won't be able to afford and the federal government will then take over as single payer. There will be no bailouts for the health insurance companies when they begin to go bankrupt. And they will go bankrupt because not only is it cheaper for an individual taxpayer to pay the penalty for not buying a policy that they don't need yet, but also because it's cheaper for my employer to pay the $2k/yr penalty for NOT insuring us than to pay the $7k that is currently their part of our plan and eventually they will stop offering it. Once the pool is filled with folks who actually need to have their premiums spent on their healthcare, the commercial payers will go bankrupt.; 6/28/12, 8:19 PM
Lem Vibe Bandit said...: Book title..

John Solomon Roberts and his baby parting ways.; 6/28/12, 8:20 PM
traditionalguy said...: So Mr Roberts who wants a feather in his cap for allowing Obama's destrutive work to stand, just to show off, who will we get to protect us from a lawless dictator whose word is now LAW.

The reason Obama will destroy us is that too many self important Brahmins are unwilling to enter the fight to save us.

If Roberts thinks the SCOTUS will survive Obama's reign as dictator, he is in for a big surprise.; 6/28/12, 8:21 PM
edutcher said...: Saint Croix said...

One big aspect of Roberts opinion is that Obamacare is far easier to overturn now in Congress. Before his opinion, we needed 60 votes in the Senate to overturn a filibuster. Are we going to flip that many Senate seats in November?

Currently 53 D/47 R with 33 seats up for grabs, 21 of them D.

Do the math.

Coketown said...

All this raises a very pressing question: Is it "Roberts' opinion" or "Roberts's opinion?" Throughout elementary school I learned that one of the things that separates us from both the apes and the British is that possessives ending with s still assume an apostrophe-S: "Roberts's."

I learned there was only one plural possessive - Roberts'.

The other is bad grammar.

Like using single possessive as plural; 6/28/12, 8:21 PM
bagoh20 said...: I can proudly say that I don't know any other man's sperm count. I wonder how you get that info? It certainly would require obtaining a sample somehow.; 6/28/12, 8:22 PM
Bleach Drinkers Curing Coronavirus Together said...: But, but Patrick... Hollering about "What the Founders Would Do" makes for such persuasive rhetoric!, don't you think?

Well, at least the TP think so. I don't think they wanted to get into all those arcane details, anyway. Others seem to think they've got a winning political case to make despite that powerful if ahistorical crutch. Guess we'll find out.; 6/28/12, 8:23 PM
Bleach Drinkers Curing Coronavirus Together said...: Oh, the government gives people like me all those personal health care details, FIRST, Baaaaahh Go, don't you know?; 6/28/12, 8:25 PM
Mark said...: I wonder if the most significant point of Roberts' decision wasn't to lay down the marker that "The Supreme Court reserves the right to call bullshit on the Legislative and Executive Branch's bullshit."

Tax. Penalty. We're the ones with the gavel.; 6/28/12, 8:27 PM
bagoh20 said...: "I'm wondering what kind of tax this is."

From the Roberts' opinion it sounds like he got there by a circuitous process of elimination. Since he could make an argument for how it's nothing else, then it must be a tax. But, I found a few place on that route where you could take either road, and he seemed to be choosing the ones that got him where he wanted to go.; 6/28/12, 8:27 PM
Lem Vibe Bandit said...: Before we got sucker punched by Roberts.. professor Althouse mused..

I'm re-distracted back to the Supreme Court case. I wonder how good the judicial craftsmanship will be. Will there be bullshit?

I respectfully request she let us in on some of those calls... At least on some of the most flagrant ones.; 6/28/12, 8:28 PM
Retired Prosecutor said...: Assuming rational behavior, most employers happily pay the penalty (now characterized as a "tax") and throw the employees into the wonders of the tax-payer supported "exchange." And this was done as a "cost-saving measure?"; 6/28/12, 8:28 PM
Dante said...: This comment has been removed by the author.; 6/28/12, 8:33 PM
Lem Vibe Bandit said...: A Roberts Robbery..

That's when the guy you thought solid in your corner.. takes the rug right out from under you, selling you out.; 6/28/12, 8:34 PM
bagoh20 said...: I have a lot of employees who refuse the health care that the company subsidizes. They just don't want to spend the small amount it cost them.

Can I have them on the exchange and the rest who want the insurance stay on the private plan, or is it an all or nothing?; 6/28/12, 8:35 PM
Anonymous said...: "Did the creators of Fannie Mae believe that the federal government would eventually take over the mortgage market? Was that the plan all along?"

Probably not, but it worked out well, and the American people didn't put up much of a fuss, so why not try it with health care? And the auto industry? And student loans?; 6/28/12, 8:35 PM
Dante said...: I should say it simpler. Given the constitutional basis for this "Tax," could the tax be applied by a new tax on people with no income and no property? Is that an opening by the new law, or has it always been this way?

It's not like Social Security, or any other tax I can think of, where you have to have the money, or property, to pay for it. This one seems to be more of "You are alive, so you have to pay for it." Again, I care about the precedence for future law, not the way this one was written.; 6/28/12, 8:37 PM
Patrick said...: Well Ritmo, if the founders had consistently acted as if the government was not limited, yes that would be persuasive. The particular law you referred to is related only in a very small way at best. Not persuasive to me. Your results may vary.; 6/28/12, 8:39 PM
Lem Vibe Bandit said...: Is that true?

Every court had rejected what Roberts conjured today?

Every court before had rejected this tax/penalty - penalty/tax blurring?; 6/28/12, 8:39 PM
Jaq said...: The shit has hit the fan.; 6/28/12, 8:39 PM
Lem Vibe Bandit said...: I need an example use in a sentence for Roberts Robbery.

I'm putting it up on Urban Dictionary.; 6/28/12, 8:48 PM
Seven Machos said...: Ed -- You do not recall correctly.; 6/28/12, 8:48 PM
Kirby Olson said...: Does Congress have to pass it now as a tax-based program? Anew? Someone said this in the comments thread, but did I misread this? Could it be true? I have also heard that huge numbers of doctors will now retire before the deluge. It's a panic.; 6/28/12, 8:52 PM
yashu said...: Coketown, my own opinion is that insofar as "Roberts" is singular, not plural, the correct possessive form is "Roberts's."

That is my ruling on this matter.; 6/28/12, 8:57 PM
KCFleming said...: I am seeing early retirements already, but more often people are cutting back on work hours.
Plus there's the tactic of refusing to see Medicare.

My own decision revolves around whether or not I choose to live in this socialist country, or can I get a better deal in some other socialist country. I am tempted to avoid the years of bullshit ahead and go where the socialism is already stable, maybe Toronto, Australia, etc. It doesn't much matter anymore.

Welcome to serfdom, America.
The rest of the world was wondering when you'd make it back.; 6/28/12, 9:00 PM
bagoh20 said...: "In a joint dissent, Justices Kennedy, Alito, Scalia, and Thomas beg to differ:

Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” 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.

Prior to the Supreme Court, nearly all of the judges who had ruled on the law—even those who deemed it constitutional—agreed that whatever else the mandate might be, it was clearly not a tax.
Chief Justice Roberts and the rest of the majority also managed to rule that the mandate was not a tax, at least for the purposes of the Anti-Injunction Act."

http://reason.com/blog/2012/06/28/the-supreme-courts-anti-obamacare-dissen; 6/28/12, 9:00 PM
Seven Machos said...: the correct possessive form is "Roberts's

This is absolutely true. People and perfectly good editors have long gotten confused because there is a silly grammatical rule that allows great historical figures to own stuff without a 's. So, Jesus' loaves, Socrates' hemlock, Confucius' one-child policy.

For everybody else, it's always 's: Jim Jones's Kool-Aid, Chris's large sex toy, etc.; 6/28/12, 9:01 PM
KCFleming said...: As far as Roberts and SCOTUS, fuck him, fuck the whole lot.

This was no secret slap to Obama or anything else. Just naked approval of naked power. The legalistic twaddle about tax or not is meaningful only to the parsers of words. The average joe just got reamed.

So they can go to hell.; 6/28/12, 9:03 PM
Seven Machos said...: Bag -- So if you twist yourself in all kinds of semantics about what a forced payment to the government is, you can wriggle out of the taxing power. That's your argument?

This law is terrible. It's burdensome. It stands athwart freedom and liberty. It will bankrupt the health insurance industry, quite obviously. And it isn't allowed under the Commerce Clause. But it is a tax Congress can levy.; 6/28/12, 9:06 PM
Lem Vibe Bandit said...: On the bright side..

Going without long/regular pants could.. in principle.. be a taxable offence.

Is that a road we want to take?; 6/28/12, 9:07 PM
Mel said...: IANAL, however, I believe that if you offer the coverage and Employee Doe doesn't take it, you are off the hook for the penalty and Employee Doe is on the hook for the penalty. However, that may not be the case, because when I had to renew my benefits for this year (July 1, 2012-June 30, 2013) I was required to provide proof of coverage in order to opt out of the health insurance plan. I didn't opt out, my insurance is cheaper and better (for the time being - I really do expect the ACA to raise costs so much that employers can't afford to offer insurance) than my husband's because I work for the health system and it gives itself a discount on treating its employees.; 6/28/12, 9:09 PM
bagoh20 said...: Pogo, I don't think this thing will survive. There is a lot of money, power and interests that want it gone, and it's not popular with the general public. Plan for your exit, but hold your fire. We have an excellent chance of beating it back, and at worst, you'll have more time to plan. We need good doctors, but if the country doesn't want them, I may follow you.; 6/28/12, 9:10 PM
Anonymous said...: From the Chicago Manual of Style:

Q. Which is the correct singular possessive form? “Professor Davis’ class” or “Professor Davis’s class”?

A. In its 15th edition, CMOS allowed the style shown in your first example, but the new 16th edition (7.21) no longer recommends it, although it is not incorrect and other style guides might allow it. You’ll be safe if you add the s, even if your professor’s CMOS isn’t up to date.; 6/28/12, 9:11 PM
Unknown said...: Ann

Great on law...on insurance...not so much. Your thoughts on the "death" of private insurance and adverse selection are simplistic. Take some time to read the NAIC'a piece on adverse selection or the 10 or so great articles that come up when you google "ACA and adverse selection" . There are several features currently withn ACA or that could be added to mitigate adverse selection, the most obvious being limiting open enrollment window to purchase coverage or "buy up" coverage. The other is that polices will now automatically cover physicals and other preventative care, making purchasing coverage less of a decision of " will I get sick" and this more attractive based upon features

Finally, we did noyt, nor will we see a big downgrade of the health insurers by Fitch Moody's or S&P.

Bottom line-- we'll muddle through and more people will have access to health care.; 6/28/12, 9:14 PM
Lem Vibe Bandit said...: Finally, we did noyt, nor will we see a big downgrade of the health insurers by Fitch Moody's or S&P.

Of course not!

The Supremes just said buy insurance or else!; 6/28/12, 9:20 PM
Mark said...: Shorter Roberts: "The other two Branches served you a shit sandwich. Enjoy!"; 6/28/12, 9:21 PM
bagoh20 said...: "That's your argument?"

That's 4 S.C. justices' argument. I would just add that the twisting of semantics is how Roberts seems to have gotten to his opinion as well. The fact, proven by the dissents is it's not clear enough to allow to stand. The S.C. should send it back - not send it on. The law is too far-reaching and significant to be upheld on some slim semantic string that actually has to change the words of the law to get there.

If the purpose of the S.C. does not include preventing a national disaster caused by a poorly written law, when all they need to do is send it back, then what is so important about their existence in the system.

It's like the fire company refusing to put out a fire because the number on the burning house was garbled by dispatch.; 6/28/12, 9:24 PM
Matt Sablan said...: "The other is that polices will now automatically cover physicals and other preventative care, making purchasing coverage less of a decision of " will I get sick" and this more attractive based upon features"

-- You know what happens when you force people to include more things with a product? It gets more expensive. Free money will not fall from the sky.; 6/28/12, 9:24 PM
Revenant said...: Bottom line-- we'll muddle through and more people will have access to health care.

Another person who thinks insurance companies provide health care. :); 6/28/12, 9:25 PM
Seven Machos said...: Mark -- I think that's very apt. The good news is that we don't have to eat shit sandwiches very long. Two years is the longest amount of time we ever have to deal with shit sandwiches.

And if we vote to continue eating shit sandwiches, well, we're either deserving idiots, or we live in California, or both.

I don't think this decision helped Democrats and I think it was a huge gift to Romney.; 6/28/12, 9:25 PM
Alex said...: The Democrats sure spiked the football today.; 6/28/12, 9:27 PM
Mark said...: Mr. Payne, I believe you are mistaken, most notably in ignoring the incentive to businesses to abandon the practice of offering health insurance to employees.

The mix of carrots and sticks here just got really really interesting. Personally, I think if you're dirt poor and dedicated to a life of Art this is good for you. Otherwise, I think things are going to be really, really interesting in the next ten years.; 6/28/12, 9:28 PM
Seven Machos said...: Bag -- The Supreme Court decides cases based on law, particularly with regard to the Constitution.

Nothing in the Constitution prevents this terrible law. What you are looking for is a House of Lords, which is more the Senate than the Court. No, we have to change this terrible law through down, dirty representative democracy.

Also, I think the tax or penalty argument is sublimely silly. A tax is the government making you pay money to the government. Period. A penalty is not some drastically different thing. They are essentially synonyms in my libertarian mind.; 6/28/12, 9:30 PM
bagoh20 said...: "Bottom line-- we'll muddle through and more people will have access to health care."

The same people will have access - they all have it now. There will be extra taxes paid, and some will get insurance, and some will drop it and pay the penalty.

The government will collect more revenue, and the insurance rates will rise if the insurance companies survive.

The plan is for young people to pay in to insurance and lower costs, but why would they? They will have a simple choice, and one will be quite a bit cheaper than the other. They don't need either, they will go with cheaper.; 6/28/12, 9:31 PM
edutcher said...: Lem said...

On the bright side..

Going without long/regular pants could.. in principle.. be a taxable offence.

Is that a road we want to take?

Only if Althouse does not become Healthcare Czarina.

Seven Machos said...

Ed -- You do not recall correctly.

I believe I do. Perhaps it's a little stuffy under the mask today.

yashu said...

Coketown, my own opinion is that insofar as "Roberts" is singular, not plural, the correct possessive form is "Roberts's."

That is my ruling on this matter.

In terms of surnames, it's a special case.

For Harry M Robert (of Robert's Rules), the possessive is standard.

For Mr Justice Roberts, the possessive requires only an apostrophe. This comes about probably because the correct usage for multiple members of the Roberts family would be Robertses, not Robert's, the way it is sometimes seen today and saying it would be confusing.

For multiple members of Harry Robert's family, it would be the Roberts.

FWIW; 6/28/12, 9:32 PM
edutcher said...: PS As far as I was taught, the rules apply to surnames as well as any noun.; 6/28/12, 9:34 PM
Seven Machos said...: Ed -- You are wrong about grammar as well.

Have you recovered from losing Herman Cain as a candidate, though? That's what I want to know.; 6/28/12, 9:34 PM
Lem Vibe Bandit said...: I don't think this decision helped Democrats and I think it was a huge gift to Romney.

I hearing that.. but its like we want to kill Obamacare by a thousand cuts..

I rather the Supremes had crushed this abomination like a cockroach.

Its like Roberts chose to keep it on life support or something.; 6/28/12, 9:36 PM
Seven Machos said...: I rather the Supremes had crushed this abomination like a cockroach.

And then what? Who gets mad? Who is charged up for the election in a few months? Who gets Congress and the presidency?

There is no finality in politics as long as more than one person roams the earth.; 6/28/12, 9:39 PM
Unknown said...: Revenant

Nope they do not pride health cars. They make access easier. I sell employee benefits for a living. Want a hip replacement? Without coverage your bill is north of $30k. With coverage the bill is less than $15k. The previous administration did not seek meaningful health reforms. This is the result. I would have preferred market based reforms rather than government mandates or taxes. Again, take a deep breath-- we will muddle through.

Bagoh20. I equate access with insurance. Hospitals can and do bankrupt individuals that lack coverage. I see your point about young people potentially not buying coverage but I do recommend that you read the NAIC piece on adverse selection a limited enrollment window will help offset this tendency; 6/28/12, 9:41 PM
bagoh20 said...: "They are essentially synonyms in my libertarian mind."

I hear you, Seven, but if the court sees it that way, it potentially makes them just a rubber stamp for a lot of liberty raping.

I especially dislike that the law was rushed through with significant deception in a way that prevented the citizens from being able to voice concerns to the Congress, to pressure their representatives, to enjoy their rights. That takes it past just being a bad law. The process was subverted.; 6/28/12, 9:44 PM
bagoh20 said...: BTW, you are all wrong. The correct form is " J.R.'s ".; 6/28/12, 9:49 PM
Unknown said...: Mark

Truthfully, it would,have been better if we has never linked employment with insurance. That said, there are some interesting studies on whether businesses will jettison coverage. Don't underestimate the attractiveness of a good benefit program. The clever idea would be to boost compensation and encourage employee to go into the exchanges. Would that be a bad idea? Then each employee could choose the leve, of coverage that they want,; 6/28/12, 9:49 PM
B said...: "cubanbob said...If the House leaders had any sense they would get to work on this ASAP and force a vote."

Expect that to happen the week after the 4th when the House reconvenes. Since the Commerce Clause claoking is now gone, it will be straight up or down repeal of a huge tax hike.

Every House member is facing his constituency in the fall. Every one. And every one will have to factor that into his or her vote. There aren't going to be many safe districts when they look around.

Then the senate, actually only the few members to reach 51, face making the same call.

Obama needed the Commerce Clause argument to cloak resistance to the ACA as a penalty rather than the tax that it is long enough to cripple the insurance industry. If not, he needed the ACA struck down and off his and the democrats plate before the elections.

Now he and every national politician has to defend the ACA as the vehicle of the biggest tax hike in history and targeted by application on an already reeling middle class. A tax hike they will see as wealth distribution because they get nothing out of the tax hike.

The SCOTUS killed ACA today. Its just going to take a lot of dems down with it and more the longer it takes to die.; 6/28/12, 9:50 PM
KCFleming said...: So the same young people facing 25-40% unemployment and unable to afford their massive student loans are supposed to pony up for the Democrat head tax so they can live to breathe another year.

That's just genius.; 6/28/12, 9:51 PM
JohnnyT1948 said...: In the previous thread, I posted the following which I also think applies here.

"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."; 6/28/12, 9:54 PM
ed said...: @ Seven Machos

"If you acknowledge that Congress has plenary-ish taxing power, which it does, and if you acknowledge that we have here a tax, which we do, then the only question is: must Congress be honest about its use of the tax power? "

Except that Congress specifically declined to write the ACA mandate as a tax. Roberts instead decided that it was a tax and after he decided it was a tax he decided it was constitutional.

Basically Roberts legislated from the bench by rewriting the ACA mandate so it is a tax and not a penalty instead of shitcanning the whole thing and sending it back to Congress.

So the whole idea that the mandate-is-a-tax-all-along and Roberts just woke up and discovered it is just so much crapola.; 6/28/12, 9:54 PM
ed said...: "The SCOTUS killed ACA today. Its just going to take a lot of dems down with it and more the longer it takes to die."

Yeah well I'll believe that when I see it.

Note: I've been waiting 20+ years for a fence along the southern border.; 6/28/12, 9:57 PM
Mark said...: I usually think Seven spent too many years in the State Department, but here I agree with him.

No, I don't like the Roberts decision. Yes, I think striking Obamacare down would have been "right".

But instead Roberts gave the left the rope they needed to hang themselves.

Call bullshit. It's a tax. It's going to fundamentally disrupt about a fifth of the economy. Too bad. You suckers voted for it, and by the SCOTUS calling bullshit on the "tax v. penalty" shtick we can say you own it.

This is exactly in keeping with the idea that the Supreme Court should be a fair arbitrator. The Constitution defines how we want our government to run. The Judicial branch's responsibility is to determine whether we're following the rules.

Roberts just said yes, the rules were followed no matter how the sides framed it. Now you, the people, go reward or punish as you see fit.; 6/28/12, 9:58 PM
madAsHell said...: I ride public transportation.

Sooooo.....now I'm paying for that fat bitch with purple hair and tattoos? Yeah....I'm happy to do THAT!; 6/28/12, 10:01 PM
Rabel said...: "And then what? Who gets mad? Who is charged up for the election in a few months? Who gets Congress and the presidency?"

Seven, I think that in November it will depend on how the uninformed headline readers among the voters react.

I have no idea how those people, whatever percentage of the voters they may be, will respond to a fairly complex issue like this.; 6/28/12, 10:02 PM
KCFleming said...: Wrong acronym, B. The SCOTUS killed The USA today. Its just going to take a lot of serfs down with it and more the longer it takes to die.; 6/28/12, 10:03 PM
ed said...: @ Robert Payne

"The clever idea would be to boost compensation and encourage employee to go into the exchanges."

Interesting argument.

Where are these exchanges? By law each state is supposed to have one that integrated consumers, providers, insurance companies, federal & state authorities and God only knows who else. And it's supposed to be live by 2014.

To my knowledge nobody anywhere has even started designing the things let alone started coding them. And the various committees, boards and bureaus that are supposed to write the rules and regulations that govern the ACA and the exchanges haven't been organized yet. So if someone did start work on the exchanges it is very possible that a rule or regulation created later will completely or partially invalidate the work being done now.

And 1.5 years can evaporate very quickly when working on a large system with the government. The simplest things become insanely difficult because of scheduling conflicts, scope creep and changing requirements.

Not saying it's a bad idea. Just pointing out that we're all making assumptions about how Obamacare is going to work when in reality it still doesn't exist and may not for years to come.; 6/28/12, 10:03 PM
Chip S. said...: So lawyers finally discover that every single government regulation has the same behavioral effect as a tax--or a subsidy--at the corresponding rate. The only difference is that taxes generate revenue that can be used to affect other behavior through subsidies.

I suppose that's intellectual progress of a sort.

Unfortunately, if the tax power is unlimited by the constitution, then so is the power to regulate. So I don't understand the triumphalism over Roberts's brilliant trick play here.

As for our recourse being the ballot box, I foolishly thought that the Constitution served to limit what a majority could use its control over the government to implement--enumerated powers and all that.

Glad to be brought up to date.; 6/28/12, 10:05 PM
KCFleming said...: The optimistic readings remind me of the guy pinned to the ground screeching I've got him right where I want him.; 6/28/12, 10:05 PM
Saint Croix said...: People who think Congress do not have vast powers to tax should read Scalia's dissent. Here he seems to agree with Roberts:

It is important to bear this in mind in evaluating the tax argument of the Government and those who support it. The issue is not whether Congress has the power to frame the minimum-coverage as a tax, but whether it did so.

That's a very narrow argument. Scalia is not jumping up and down and saying "you can't tax the uninsured, that's illegal." If you're quoting Scalia for that proposition, you're wrong. Read his dissent!

All he's doing is interpreting the Obamacare statute, the 1000 page monstrosity that I have not read.

He's saying "it's a regulation under the commerce clause" in order to narrow the commerce clause and strike Obamacare.

Ginsburg is saying, "it's a regulation under the commerce clause" in order to broaden the commerce clause and uphold Obamacare.

Roberts is recognizing Obamacare as a tax. Since it's a tax, he's upholding Obamacare. And Scalia's failure to challenge that suggests that he agrees with his interpretation.

In other words, if Congress had said, "it's a tax," this opinion would probably have been unanimous. In fact it would not have gotten this far, as the lower courts would have upheld it, too.

The federal power to tax really is vast.

Again, I have not read Obamacare, and I'm not going to read the fucking thing. But if you were to ask me if it's a tax, I would say "Yes!" And if you were to ask me if it's a tax and spend issue (a.k.a. part of the budget) or a regulation issue (a.k.a. "you can't do this") I would say "It's both!"

Clearly there are regulations as part of Obamacare, but it's also, quite clearly, tax and spend liberalism. It's a secret tax, a hidden tax, a dishonest tax. It's going to fucking bankrupt us! Yes?; 6/28/12, 10:06 PM
ed said...: Hate to point this out but the Democrats, and the lefty media, are going to claim that they did not vote on a tax. And technically speaking they are right. When they voted on it, as dishonest as it was, it was still on the books as a penalty.

So the Republicans are going to be the ones to have to explain the complex legal theory about penalties vs taxes and why the mandate is one and not the other.

All the while the lefty media is going to be screaming "racism!", "Republicans want to kill grandma!" and "why do you hate children?" at the top of their lungs.

Yeah that'll be really fun.; 6/28/12, 10:08 PM
ed said...: @ Saint Croix

"And Scalia's failure to challenge that suggests that he agrees with his interpretation."

I disagree with you on the basis that, due to the way the dissent is written, I seriously doubt Scalia had the time to write an extensive rebuttal. From most commentary it appears Roberts changed his vote at the last moment.; 6/28/12, 10:11 PM
ed said...: @ Chip S.

"Glad to be brought up to date."

Glad to be a participant.

BTW buy some solar panels from Solyndra or else the IRS is going to audit you with rubber gloves and a cattle prod.; 6/28/12, 10:13 PM
Mark said...: Mr. Payne:

Don't underestimate the attractiveness of a good benefit program.

That would be true in a strong economy, but at the moment (and this is politics, so "at the moment" is really all that matters) cutting costs is a much more direct way to make any business' bottom line better.

Trust me. If a CFO/CEO in this economy crunches the numbers and they say the company's bottom line will be improved by 5% by jettisoning employee health care, they will do so. Not least because of the possibility that they could be held negligent should stockholders file suit.; 6/28/12, 10:17 PM
TmjUtah said...: It's all settled.

Shut up, serfs.

Back when you were a citizen, your opinion might have carried weight.

That's all over now.; 6/28/12, 10:19 PM
Unknown said...: Ed

Related to Exchanges. I would recommend that you and everyone else, especially Ann, go to the we page that the Kaiser Family Foundation has set up on ACA. I think there are a huge number of misconceptions about it on the right and left and the "cruelly neutral" side.

I believe some state are well down the path for exchanges. Others have ruled them out. We will see if public pressure leads to more rapid formation.; 6/28/12, 10:19 PM
Saint Croix said...: if the tax power is unlimited by the constitution, then so is the power to regulate.

I can think of lots of taxes that would be struck down. For instance religious taxes, poll taxes, free speech taxes. Roberts talks about illegal use of the tax power. He talks about all of that stuff. Read his opinion.

I wish I could ram this into people's heads. But the only weird thing Roberts did was call Obamacare a tax. (Which isn't that weird, as far as I'm concerned). You might fault Roberts for his statutory interpretation (Scalia does) but you can't fault him for his constitutional interpretation (Scalia does not).; 6/28/12, 10:24 PM
Diogenes of Sinope said...: “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world's greatest civilizations has been 200 years.”; 6/28/12, 10:30 PM
Unknown said...: Mark

I have got to tend to other things but I would encourage you to google ( cause I can't find the line) on several studies done by Milliman, the large actuarial firm, on expected corporate behavior under ACA. There are a number of factors beyond just simple immediate cost savings.

And folks sorry for my typos. Can't read my iPad.; 6/28/12, 10:31 PM
Saint Croix said...: the Democrats, and the lefty media, are going to claim that they did not vote on a tax.

I actually wondered today how Obama is going to spin this. For instance, in his debate with Romney, will he admit that Obamacare is a tax?

I think if he says it's not a tax, he's going to get reamed. Because his administration argued that it was a tax. It's not like Roberts made this argument up out of thin air. There were two arguments.

1) It's authorized by the commerce clause

2) It's a tax

Obama cannot argue in Court that it's a tax and tell the people it's not one. That's a lie and he can and should get reamed for repeating that lie.

This case was huge. It overshadowed the contempt of Congress conviction of Holder (which is also huge). So everybody is going to hear that Obamacare is a tax.

And then Obama is going to try to say that it's not one? I think he might try to spin it and I think we can crucify him on his dishonesty.; 6/28/12, 10:32 PM
Original Mike said...: "It is not our job to protect the people from the consequences of their political choices."

IOW, "It's not our fault you people are so fucked up." I can respect that.; 6/28/12, 10:33 PM
Mark said...: Mr. Payne, I've been a project manager and business analyst for a number of years, and when the business environment gets shaken as badly as it is right now, the rule is to disregard incentives, focus on costs and (especially) on potential single points of failure.

Failure cascades are a nightmare I don't even want to think about in this context.; 6/28/12, 10:36 PM
bagoh20 said...: Lets reexamine the great broccoli argument.

If congress were to pass a law identical to the ACA in every way including costs, regulations, reach, penalty/tax, etc, except that the commodity in question was broccoli rather than health insurance, would these opinions still hold?

How about if the commodity was snake oil?

Is the ballot box the only remaining safeguard for the republic's values? Have we watered down, and incrementally through precedent, explained away everything else that protects them?; 6/28/12, 10:38 PM
B said...: Pogo said...Wrong acronym, B.

Buck up my friend. This is the worst possible outcome for Obama and the ACA.

I said here on another thread this am that the SCOTUS decision is devastating for the democrats this fall because it removed any pretense that it is not a tax.

That was the elephant in the room when it just barely passed with an economy, workforce, and president in much better condition than now.

That elephant can't be ignored any longer.

I would not be so sanguine if the major media weren't in such disarray this am. Had they been prepared for this, they would have have downplayed or utterly ignored the tax angle from the start. As it ended up playing out, a lot of people who normally just read the headlines got a message they were never intended to get.; 6/28/12, 10:39 PM
Saint Croix said...: Obama claims that he's only taxing the rich. But taxing the uninsured is a tax on the poor, the young, the working class.; 6/28/12, 10:41 PM
Mark said...: As an aside, I now know to never play poker with Chief Justice Roberts.; 6/28/12, 10:47 PM
bagoh20 said...: "I think he might try to spin it and I think we can crucify him on his dishonesty."

The guy waits 2000 years for the dust to clear, and as soon as he shows his face again they want to crucify him all over. Can't a Messiah get a break?

This dude has no idea nor concern with what's true or a lie anymore.
It's all shuck and jive, stay on your feet, and get to the goal line.

I can't recall, has any President ever admitted to lying; even being wrong, or making a mistake?

Is never admitting such a thing some rule you learn in law school?

I'm serious. I never heard a lawyer ever do it. I'm not one, but I work with them all the time.; 6/28/12, 10:53 PM
Chip S. said...: St. Croix, First you said

People who think Congress do not have vast powers to tax should read Scalia's dissent....The federal power to tax really is vast.

Then you said

I can think of lots of taxes that would be struck down. For instance religious taxes, poll taxes, free speech taxes. Roberts talks about illegal use of the tax power.

I know that a foolish consistency is the hobgoblin of little minds and all that, but I'm sure you can understand why your argument isn't all that easy to follow.

In any event, my point was somewhat different. It's that for Roberts to argue that the mandate is unconstitutional under the Commerce Clause but is a constitutional exercise of the power to tax is effectively to make any regulation constitutional as long as it's accompanied by a "tax" penalty and--in deference to your "religion and free speech" tax examples--would not violate specifically enumerated individual rights.

That seems pretty straightforwardly to stand the 10th amendment on its head.; 6/28/12, 10:56 PM
Mark said...: The 10th Amendment. How quaint.

(Sorry, I like the 10th, a lot, but no lawyer ever got paid by asking "Does this violate the 10th Amendment?"); 6/28/12, 11:02 PM
Chip S. said...: @Mark--That's why Shakespeare was a genius.; 6/28/12, 11:04 PM
Saint Croix said...: Basically Roberts legislated from the bench by rewriting the ACA mandate

I haven't read the 1000 page monstrosity, have you? Anyway, here's Roberts:

The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.; 6/28/12, 11:06 PM
Saint Croix said...: Roberts goes on to argue why one might call it a tax.

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as 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.

That sounds really taxing to me!

It is of course true that the Act describes the payment as a “penalty,” not a “tax.”

Roberts compares this case to Drexel Furniture. That case involved the exact opposite situation. Congress was calling it a "tax" but the Supreme Court said it was a penalty. So Roberts is arguing the reverse can be true. Congress can call it a "penalty" but it's actually a tax.

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

The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: 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. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement. 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. See §5000A(g)(2). The reasons the Court in Drexel Furniture held that what was called a “tax” there was a penalty support the conclusion that what is called a “penalty” here may be viewed as a tax.

For a last minute argument this seems pretty strong to me.; 6/28/12, 11:07 PM
AlanKH said...: Why is the mandate a tax and not a fine?; 6/28/12, 11:08 PM
I'm Full of Soup said...: It's good this issue is over no matter the decision. Tomorrow and for the next 125 days, Romney and the Repubs should go back to pounding the incompetent President Obama on the horrible economy.; 6/28/12, 11:09 PM
SukieTawdry said...: Of course it was a move to single-payer, government-funded health care. Not the first move, certainly, but by far the most significant move yet. Health insurance companies can not possibly survive under ObamaCare rules, but, then, they weren't meant to.

It's like Roberts is telling us look, we're tired of getting these horseshit cases that require us to pull your fat out of the fire. If you people don't want crap like ObamaCare, then don't vote for people who legislate crap like ObamaCare. And if 51% of you insist on voting for those people anyway, the other 49% will just have to be SOL. Sorry.; 6/28/12, 11:09 PM
B said...: Obama wanted this off the table so he could snipe at the SCOTUS and the GOP for not 'doing the right thing'. Obama has no cover on this any longer. There is no good way for him to spin it now. Not in the debates, not in any repeal vote in the House, and not if Reid tries to keep a repeal from coming to a vote in the Senate.

This is an election year in an economy that is as bad what I recall from the 70's and tax bills haven't gotten more than a blip all year. And Obama is now going to be perceived as owning the biggest tax hike of the middle class in history.; 6/28/12, 11:11 PM
SukieTawdry said...: How many people here gave Romney money today? I did.; 6/28/12, 11:11 PM
Seven Machos said...: Is the ballot box the only remaining safeguard for the republic's values?

Bag -- When has the ballot box not been the only safeguard for values in a representative democracy? You tell me the halcyon era you think you are talking about, I'll show you a dozen horrendous Supreme Court rulings and a sea of disgusting values.

You are assigning some role to the Supreme Court that it simply does not have and never had. It's just goofy, false propaganda. The Court is a political entity. It's just nine politicians considering disagreements.; 6/28/12, 11:13 PM
Seven Machos said...: Why is the mandate a tax and not a fine?

Do you think that perhaps this question might be addressed in the opinion and its dissents, etc.?

Why, then, do you come to Althouse when those are freely available in the public domain? Too long, I guess, huh? Too complex. All those words.; 6/28/12, 11:16 PM
yashu said...: How many people here gave Romney money today? I did.

So did I.; 6/28/12, 11:18 PM
Chip S. said...: I'll give Roberts credit for this much--he must have massive stones to write this:

it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.

"More like not buying gasoline," would probably be the thought of someone with a lower order of intelligence than Roberts has.; 6/28/12, 11:19 PM
Almost Ali said...: How many people here gave Romney money today?

Don't throw good money after bad. Romney is a piece of milquetoast if there ever was one.

The republic is under siege, no time for equivocating leaders. Meanwhile, find a liberal, any liberal, and punch 'im in the face. Hard.; 6/28/12, 11:23 PM
SukieTawdry said...: bagoh20 said...Is the ballot box the only remaining safeguard for the republic's values? Have we watered down, and incrementally through precedent, explained away everything else that protects them?

Exactly. And isn't SCOTUS, among other things, supposed to be a safeguard against the abuse of power and tyranny of the majority?; 6/28/12, 11:32 PM
SukieTawdry said...: I don't care if Romney's a three-toed sloth. He has to win.; 6/28/12, 11:35 PM
bagoh20 said...: "You are assigning some role to the Supreme Court that it simply does not have and never had."

I suppose I am, but it sounded so right in junior high, and we all agreed about it back then. I've been disappointed ever since.; 6/28/12, 11:37 PM
Zachary Sire said...: It's a great day for America, the rule of law, fairness, and compassion. I hope Althouse, Meade, and all of their followers can one day find peace with the decision from the Supreme Court, and I look forward to millions of healthy and happy Americans with affordable access to health care, finally.; 6/28/12, 11:37 PM
Seven Machos said...: Sukie -- The Court found Obamacare unconstitutional under the Commerce Clause. So, the conservatives and libertarians should be jubilant. I certainly am.

Sadly, though, what Congress and Obama did was tax. They said they didn't, but they lied. This law clearly creates a tax -- money the government collects from you at the point of a gun -- and Congress has the power to tax.

I'm glad you people are mad. Really, I am. But you shouldn't be mad because some tyrannical unfairness has been perpetrated. It hasn't. What's happened is that we have a really shitty law that never should have been passed that must be changed immediately.; 6/28/12, 11:40 PM
bagoh20 said...: "The republic is under siege, no time for equivocating leaders. Meanwhile, find a liberal, any liberal, and punch 'im in the face. Hard."

Well, don't punch the female liberals - kick them in the nuts.; 6/28/12, 11:41 PM
Michael K said...: " Pogo said...
Expect MD unions within 2 years."

I expect this is true but I fear that this will not solve a problem. Obamacare will strip doctors of professional status, as the NHS does, and unions will not reverse that. Any more then teachers' unions make teachers professional; 6/28/12, 11:42 PM
Skyler said...: It is their job to protect the people from the power grabs of the politicians, though, isn't it?; 6/28/12, 11:47 PM
Mark said...: ZPS, speaking for only myself, if I thought that Obamacare would do what you think it will do, I'd be with you on the barricades.

But I don't. The real world doesn't work like that. Sorry. Bambi wasn't a documentary, Dorothy really didn't visit Oz, Mr. Smith served one term, and unfortunately, "It's Chinatown" is actually a lot more relevant.; 6/28/12, 11:47 PM
eddie willers said...: "but it sounded so right in junior high, and we all agreed about it back then."

Thanks for giving me a hearty laugh. They've been hard to come by today.; 6/28/12, 11:53 PM
Michael K said...: "We need good doctors, but if the country doesn't want them, I may follow you."

I teach medical students. They believe that they will; never see the freedom to practice that we had. They are focused on salary, benefits, vacations and time off. 60% of them are women who do not plan full time practice for most of their lives. There is big demand for urgent care and ER docs. Everybody wants shift work. It's another world.

Back in the 60s when I went to medical school, female applicants were discriminated against because admission committees didn't think they would practice full time. You know what ? They were right !

There will be a big physician shortage but Obamacare plans to replace docs with "lesser licensed practitioners."; 6/28/12, 11:55 PM
Almost Ali said...: I suppose we should be happy Obama hasn't killed all the white farmers. Yet.; 6/28/12, 11:56 PM
Lem Vibe Bandit said...: It's a great day for America, the rule of law, fairness, and compassion.

You left out World Peace.; 6/28/12, 11:57 PM
Chip S. said...: So the only way to limit this government is to pass a constitutional amendment prohibiting all forms of taxation except income taxes with no deductions, no exemptions for dependents, and no credits?

Sign me on.

But if we managed to do that, and then a subsequent Congress passes an excise tax anyway, would we have to vote in an entirely new Congress because the SC is totally political and has nothing at all to do with enforcing the Constitution?

7M has told us what he thinks the SC really is. What remains is to ask why, then, do we need it--or the Constitution, for that matter?; 6/28/12, 11:58 PM
Seven Machos said...: It is their job to protect the people from the power grabs of the politicians, though, isn't it?

Under what law? Don't say the Constitution, either. Give chapter and verse.

I usually don't have truck with you, Skyler, ever since you told us that innocent people in Afghanistan should be killed as a matter of policy to break the will of Taiban and Arab fighters. But what the hell. It's late.

Here's a hypothetical you can understand: suppose Congress and the president swear up and down that we aren't going to war, but then the Congress authorizes a trillion dollars for peacemaking activities in China and the presidents sends the entire military to do stuff all over Asia. And a huge war ensues.

Is all that constitutional? After all, Congress and the president promised there wasn't going to be a war. Yet Congress and the president together clearly have the power to make war.; 6/29/12, 12:00 AM
Seven Machos said...: Chip -- This is the Constitution as currently written:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises

How do you believe that Obamacare violates the Constitution?; 6/29/12, 12:06 AM
SukieTawdry said...: Yes, the business about the Commerce Clause is a good thing. As is removing the Draconian penalties for state opt-out which of course was the most important thing to the suing governors. Or so it appears. I'm just now catching up and haven't read the opinions, but I gather there was quite a strong majority dissent from the Court's opinion. So what was the deal, Roberts told the four libs look, I'm writing the opinion, take it or leave it. I can just as easily write the opinion to have it overturned.

Considering the legal gymnastics he had to perform, it probably would have been easier to write that other opinion.; 6/29/12, 12:08 AM
Almost Ali said...: What's most telling in all this is the absolutely tepid reaction from the Republican leadership/representatives - as if they could really care less. In fact, based on their indifference, we should call it the We Couldn't Care Less Act.

Moral: We're getting taken by ALL of 'em, left, right, and center.; 6/29/12, 12:15 AM
Palladian said...: This comment has been removed by the author.; 6/29/12, 12:16 AM
bagoh20 said...: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, and coerce the purchase of products and services from private companies.; 6/29/12, 12:18 AM
crosspatch said...: I am curious about something in light of this.

Does this ruling mean that the federal government may not withhold Medicaid money to Texas for not funding Planned Parenthood?; 6/29/12, 12:19 AM
Palladian said...: It's a great day for America, the rule of law, fairness, and compassion. I hope Althouse, Meade, and all of their followers can one day find peace with the decision from the Supreme Court, and I look forward to millions of healthy and happy Americans with affordable access to health care, finally.

Does that include paying the bills for all your friends in the gay porn industry who practice and promote "bareback" sex?

Since your little prick is stiff with the thought of massively increased State power, perhaps you'd better consider what happens when the State decides that you and your irresponsible friends in the filmed fucking industry are an unacceptable risk of expense to the People's health care. What happens when that magnanimous State decides that all us queers, or any other minority group, are too expensive for the system?; 6/29/12, 12:20 AM
Chip S. said...: Seven, I've been primarily commenting about the pretzel logic of the CJ: If the mandate were a mandate, it would be unconstitutional, but since it's a tax it's ok.

He therefore implies that the Constitution limits what the Congress can legislate, but he thinks that having the "mandate penalty"--er, "fine"--wait, no, I mean "tax"--collected by the IRS instead of HHS makes everything ok. I find that argument ludicrous.

If we accept the premise that the Constitution does in fact limit government actions of some type, then it seems to me we have to specify clearly what those actions are. And the distinction can't be some hairsplitting distinction such as the one Roberts has attempted. I find his three conditions for defining a tax vs. penalty to be almost laughable. (If it's too high a tax then it's a penalty? Is he kidding?)

He had a chance at drawing a reasonable bright line--you can't levy a tax on inaction. He could also have argued that something's not a tax if 100% compliance would yield zero revenue. (This is a feature of the mandate that is not true of the income tax or any excise tax, for example.) But he did nothing like that. Instead, he contorted himself in a manner that I would personally find embarrassing if I were a public figure.

But to now answer your direct question, I'd say that I agree with the opinion of the 4 dissenting justices, because the mandate does not meet the perfectly reasonable definition of a tax as a law that will not yield zero revenue if it is fully complied with.; 6/29/12, 12:21 AM
Seven Machos said...: and coerce the purchase of products and services from private companies

No, and to tax you if you don't buy a product. You are taxed higher for not having children, for not having an electric car, for not having a farm and farm equipment. This is no different. It's exactly the same.

The best part is that the tax is dirt cheap. You'd be a fool not to pay it if you are young and healthy. Which is one among many reasons that Obamacare is a disgusting monstrosity that must be nullified immediately.; 6/29/12, 12:21 AM
bagoh20 said...: Mostly, I'm taxed for refusing to be poor. They hate that.; 6/29/12, 12:25 AM
Seven Machos said...: you can't levy a tax on inaction

And so every single tax break is immediately nullified. If you can't tax inaction, then you can't have higher taxes for people who don't have children, don't have electric cars, and don't have farm equipment. The whole Internal Revenue code is put into immediate disarray.

something's not a tax if 100% compliance would yield zero revenue

So gas, tobacco, and general sales taxes aren't taxes because if nobody buys anything, compliance would yield zero revenue

Those are just two of the minor problems with your analysis. You are arguing for the result you want, not sorting through the law. So, good lawyering but terrible judging.; 6/29/12, 12:28 AM
george said...: No Roberts you damned idiot, it is not your job to protect us from our choices. It is your job to protect us from the mob and the choices of others.

It is your job to protect our essential liberties from the government. There is no other reason to even have a Supreme Court than as a check on the mob and on the other two branches of government. If we wanted you to just enforce any old notion that the executive and legislative branches come up with then any court without the fancy title would do.

It is most assuredly NOT your job to call something a tax that the plain language of the bill calls a mandate. It is not your job to try to find some way to uphold a law.

It is your job, you completely unprincipled simpleton, to read the text presented to you and see if it violates any of OUR rights, not the government's. It is not your job to be a condescending asshole and blame your lack of balls and principle on us. It is not your job to rule upon a mythical tax bill when you do not have one before you. (Has ANYONE read this damned thing?)

Roberts fears what the elite will think more than he fears us. He thinks he can call his lack of principle "moderation" when it is weakness, and cowardice, and a violation of his oath.

He is a traitor because it is clear he went out of his way to preserve a usurpation of power that he knew should be struck down. And he advanced this tyranny in the name of "moderation." That makes him more contemptible than even the leftists on the court who at least believe the bilge they spew.

And for what? Yet one more completely unsustainable burden on the backs of our children that can never be borne no matter what the future holds. You sold your legacy for nothing Roberts. It is not OUR job to bail YOU out at the ballot box.; 6/29/12, 12:37 AM
Chip S. said...: So gas, tobacco, and general sales taxes aren't taxes because if nobody buys anything, compliance would yield zero revenue

As you may have noticed, all those taxes actually generate revenue.

An excise tax states that either a seller or a buyer must pay X amount per some transaction unit. It does not state that people must reduce their consumption in order to comply. They will reduce their consumption, but not entirely, so revenue is generated.

Obamacare states that everyone must buy insurance. If they don't, then they must pay this penaly/fee/tax. If everyone complied with the ACA, there would be no revenue.

Look, I get your point. In fact, I think it's commonly taught in undergraduate public finance classes that there's complete symmetry in the effects of taxes and subsidies. So yes, a subsidy on X can be described as a tax on not-X.

But you haven't addressed my main point. Five SC justices say that the Constitution limits the federal government in some ways; the Commerce Clause does not say "anything goes." Given these three equivalencies: (1) a prohibitive tax is equivalent to a regulatory prohibition; (2) a fully effective subsidy is equivalent to a regulatory mandate; and (3) a tax is a negative subsidy, and vice versa; then some legal basis must be established for drawing lines between constitutional and unconstitutional taxes/subsidies/regulations.

Shorter version: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises does not equal "The Congress shall have unlimited power to lay and collect any and all types of taxes, duties, imposts, and excises." Otherwise there would have been no need for the 16th amendment.; 6/29/12, 12:50 AM
Methadras said...: Mogget said...

The House will vote to repeal Obama Health Tax on 9 July, according to Eric Cantor

It'll be a token gesture considering that the senate won't even blink an eye in their direction.; 6/29/12, 12:54 AM
Seven Machos said...: I get your point, too, Chip, but ultimately Congress can tax broccoli to a million times its value and make transporting it across state lines illegal.

Why doesn't Congress do that? You know the reason why. I rest very assured that you are going to see a little preview of the reason why this fall.; 6/29/12, 12:59 AM
Methadras said...: Well, I fully expect that insurance companies will within the next year or 2 begin to phase themselves out of healthcare. It will probably start after November if Romney doesn't come through on his waivers and/or if Reps don't get the senate. The mass migration into tax/mandate compulsion will begin because we will all be dragged there kicking and screaming at the point of an IRS gun.; 6/29/12, 1:00 AM
Saint Croix said...: You can't lay a tax on inaction

Yes you can. Roberts on the issue of taxing people for doing nothing:

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.

Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.

Roberts is making explicit what is implicit from Scalia's opinion. This is not an expansion of the tax power. The people jumping up and down about this are not reading the Constitution, or the cases, or the tax code.; 6/29/12, 1:01 AM
Palladian said...: Tax incentives already promote, for example, purchasing homes and professional educations.

Those are incentives, tax breaks for engaging voluntarily in a purchase or other economic activity. What's the precedent for a "tax" imposed on the people for choosing not to buy something?

Frankly, I don't particularly care about the infinitely subtle spirals and convolutions of logic and interpretation used to justify something that, to a majority of citizens, is clearly abhorrent. All I care about is that this grotesque usurpation of power is decimated before it has a chance to decimate our economy.; 6/29/12, 1:10 AM
Saint Croix said...: Why is the mandate a tax and not a fine

It's the difference between a speeding ticket and a toll bridge. If you're speeding, it's a crime. There might be a trial. If you're found guilty, you pay a fine. You have due process rights. If found guilty, you will have a criminal record.

A toll bridge, on the other hand, is paid by everybody who drives over the bridge. If you don't want to pay it, avoid driving over the bridge.

Roberts' opinion is very convincing on the issue of why this is intended to be a tax and not a criminal fine. Basically the Congress lied in order to call this a regulation (which would need 60 Senators to overturn) as opposed to a tax (just needs 51).

Roberts is ignoring what Congress said ("penalty"). He is referencing what the statute actually does. Is there criminal sanction? A criminal record? Is the due process clause implicated? Do we need a presumption of innocence? Do we need a jury trial? Do we need a lawyer?

No, no, no. On your tax form, they ask if you have health insurance. If not, then you will have to pay a bit more in taxes.

No crime, no punishment. It's a tax that's disguised to look like a "crime." Roberts and the Scalia four disagree on the way to handle that. But on the question of whether Congress can tax the uninsured? I think that's pretty close to unanimous.; 6/29/12, 1:12 AM
Seven Machos said...: You've done great work today, Croix. Impressive.; 6/29/12, 1:16 AM
Chip S. said...: Well, sure, Seven, since the broccoli's being shipped across state lines.

But the point remains that if one believes in limiting the scope of government in ways that are immune to simple majority voting, then it is necessary to find a way to distinguish between taxes and regulations, or else to limit the tax power directly.

People who are disappointed in Roberts think he missed an opportunity to do this.

As for "taxing inaction," St. Croix, do you understand that my remark was but one attempt to propose a simple way for Roberts to have laid down a bright line that limited federal power?

If you don't like that one, I can try for others. So can you. Anyone who thinks the role of the Constitution is to limit the power of the federal government would like to find one, I would think.

I kind of like the revenue-generation-under-full-compliance test, at least so far, despite Seven's objection. YMMV.; 6/29/12, 1:24 AM
Saint Croix said...: Roberts points out that some taxes might qualify as criminal fines, in which case they might be struck if there is no Article I authority for the regulation.

Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297 U. S. 1 (1936) ; Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “ ‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’

Roberts does not draw an exact line as to when a tax becomes a fine and vice versa. His point is that Obamacare is clearly a tax (for the reasons I cited above).

And there are huge differences as far as the Constitution is concerned between a tax and a regulation.

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

By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.; 6/29/12, 1:27 AM
Seven Machos said...: Chip -- I see your error now. You believe the role of the Constitution is to limit the power of the federal government.

I believe that a role of the Constitution is to limit the power of the federal government, and I observe that the Constitution gives a lot of power to the federal government. I further observe that the federal government will try to use that power, often in remorselessly stupid ways. Like with Obamacare.

If you want to limit the federal government, you need to amend the Constitution. But you do eventually run into limitations in limiting, as we saw in the Articles of Confederation and as we are seeing right now with the European Union.; 6/29/12, 1:31 AM
T. A. Hansen said...: There seem to be alot of erudite people here. I hope this is not a dumb question. Suppose I go to court and my lawyer argues for my innocence based on x and only x. Lets also suppose that the prosecution makes a compelling case for my guilt. Would it be unusual for the judge to say "defense laywer, x insipid but your client is innocent because of y."; 6/29/12, 1:33 AM
Saint Croix said...: You've done great work today, Croix. Impressive.

Not half as impressive as calling the Court's opinion ahead of the game!; 6/29/12, 1:33 AM
Saint Croix said...: Would it be unusual for the judge to say "defense laywer, x insipid but your client is innocent because of y."

It would be required. Can't convict innocent people.; 6/29/12, 1:34 AM
Palladian said...: But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.

If you don't choose to buy our stuff, we'll "tax" you. If you don't pay up, we'll take away your liberty completely.

This sort of thing could only be thought reasonable by a lawyer. It's the kind of thing you people do to amuse and impress each other. The rest of us think it's a giant, fucking joke.

The only way all this meaningless, convoluted blather is justified is if it brings the entire house of cards crashing to the ground. That remains to be seen.; 6/29/12, 1:35 AM
Seven Machos said...: T.A. -- That's not unusual at all, particularly with the United States Supreme Court. In fact, it's quite usual, except the Court doesn't say you aren't guilty, it remands for further proceedings consistent with its ruling.

For the record, though, the government in this case did argue that Obamacare levies a tax. Says so right in the opinion of the Court today.; 6/29/12, 1:37 AM
Palladian said...: Anyway, I think John Roberts's knob has been polished enough for one day, and Scalia got a little bit of pleasuring as well... What do you guys think of any of the other Justice's opinions, either for or against?

I've only skimmed Kennedy's.; 6/29/12, 1:40 AM
Seven Machos said...: Palladian -- I'm not sure why everyone including you was expecting something awesome from the gang who gave us Dred Scott and Roe and all the rest.

The law is an abomination that must be changed. We must change it. We can't count on a few nerds with nothing more than Wizard of Oz power to change it for us.; 6/29/12, 1:40 AM
Chip S. said...: An individual who disobeys [a regulation] may be subjected to criminal sanctions.

Or, you know, maybe a fine.

Which is just like a tax or something; lawyer-logic is tough to follow sometimes. Let me see if I've got the Roberts Doctrine figured out yet....

If someone doesn't pay his taxes he goes to prison. So it's only a tax if you pay it, I guess. Otherwise, it's a regulation.

If someone drives through a toll booth without paying he's committed a crime. Does that make it a regulation?

Never mind the Chief Justice. Where's the Red Queen?; 6/29/12, 1:42 AM
Anonymous said...: Fuck you, Althouse, you Obama troll.

Here's wishing you a happy murder in a back alley by a vibrant, diverse Obama voter, you trollish piece of shit.

The Constitution is dead, and YOU killed it, bitch.; 6/29/12, 1:43 AM
Palladian said...: Palladian -- I'm not sure why everyone including you was expecting something awesome from the gang who gave us Dred Scott and Roe and all the rest.

Oh I wasn't expecting anything awesome... anyone who expects "awesomeness" from government officials and politicians is a moron. I was just expecting something a little less, I don't know...

I still hold hope that Roberts's reasoning is a master stroke that will fell the stupid law. Like I wrote, I hate the implications of what he's reasoned, but if it has or helps the desired effect— decimating "Obamacare"— then I'm fine with it.; 6/29/12, 1:45 AM
Seven Machos said...: Whores -- You should email those thoughts to Althouse instead of putting them in her threads late at night like the cowardly pussy you are.; 6/29/12, 1:45 AM
Palladian said...: The Constitution is dead, and YOU killed it, bitch.

LOL. Here comes Mr Personality to flush this interesting little discussion right down the shitter!; 6/29/12, 1:46 AM
Seven Machos said...: On the other hand, we've beat this topic to death at this point. Abject trolling is a little refreshing.; 6/29/12, 1:47 AM
Chip S. said...: Not as refreshing as sleep's sweet embrace.; 6/29/12, 1:48 AM