Reports Robert Barnes in WaPo.
SCOTUSblog explains the legal issue like this:
In 2012, Chief Justice John Roberts agreed with the court’s four more liberal justices that the mandate was constitutional because the penalty imposed on individuals who did not buy health insurance was a tax, which the Constitution allows Congress to impose. But in 2017, Congress enacted an amendment to the ACA that set the penalty for not buying health insurance at zero – but left the rest of the ACA in place. That change led to the dispute that is now before the court: A group of states led by Texas (along with several individuals) went to federal court, where they argued that because the penalty for not buying health insurance is zero, it is no longer a tax and the mandate is therefore unconstitutional. And the mandate is such an integral part of the ACA, they contended, that the rest of the law must be struck down as well....That is, the thing that is now nothing has become everything, because Congress would not have passed the ACA without the element that used to be something.
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53 comments:
CJ Roberts: "Well you know, it's not a tax tax."
That is, the thing that is now nothing has become everything, because Congress would not have passed the ACA without the element that used to be something.
Another chance to use the "over-complication" tag?
It's like a bad fix in software design, that infects everything after it.
Like freedom of association being overturned in the civil rights act, which has moved arguments about it into freedom of religion guise, now to be decided on the wrong grounds with the wrong questions. Is he sincere etc.
Does not matter one bit. Once we get Commie-SandersCastro-Care, ObamaCare is a pimple on the butt of Fidel's bank account.
John R waiting the call from the podesta bros?
The ACA should stand. Yes, the mandate was an integral part of the ACA, and if it had been found unconstitutional in the original case, then the whole law should have been thrown out.
However, by setting the penalty to zero, Congress itself severed the mandate from the rest of the ACA. That might be bad policy, but if so, it is bad policy enacted by the people elected to enact bad policy.
The original issue before the Supreme Court was "severability"; whether the mandate was Constitutional, and if not, whether then entire law had to be struck down vs. whether the mandate was "severable" from the rest of the law and could be struck down on its own.
Roberts's calling the mandate a tax avoided the severability question.
I haven't read the briefs, but I don't see how severability question still exists. Congress rewrote the law to reduce the tax to zero without changing anything else. To me, that means that the "tax" is not inherently intertwined with the rest of the law -- Congress has said that the law can remain in place without a meaningful tax component.
Obamacare was always intended to be a stepping stone for Nationalized health care.
That's how the Left rolls.
The penalty as a tax never made any sense. A penalty is a punishment for doing something wrong. The court itself said a person cannot be forced to buy something so the penalty is for not doing something the court said you had the right not to do. As a tax since it isn't defined as an income type tax it also makes no sense. The punishment is less than the so-called tax. Since when does the IRS allow someone to pay a relatively small penalty to avoid a relatively large tax?
"Congress would not have passed the ACA without the element that used to be something"
The fun part is that they only passed it because they wanted to create the illusion that the ACA would not produce massively greater deficits. See, it would be paid for by the "mandate." Which was not a real mandate but an IRS maneuver, to be enforced via tax penalties.
It's straightforward: Congress did not sever it from the law as a whole, the mandate-as-tax was crucial to its upholding by SCOTUS, so now it must fall.
It was judicial summersaults that got us into this mess, go ahead and use cartwheels to get us out...
It's not straightforward. Congress does not need to make an explicit statement on severability, it sometimes does, but not always. TWhen Congress amended the ACA, it could have struck the whole thing down, but it didn't. It passed a law, entitled to the same respect as the original ACA, that reduced the mandate/tax to zero. That was the equivalent of stating that the mandate/tax was not integral to the ACA that the whole law had to be struck down if the mandate/tax was found to be unconstitutional. It was a gimmick, admittedly invited by Justice Roberts's inane opinion, but a gimmick nonetheless.
Zero is still a number. However, you can strike the mandate and keep the rest of the law, and that is what SCOTUS will likely do.
The goal is affordable and available, which can be forced through a single/central, shared responsibility solution, or developed through restoring market mechanisms and progressive price mitigation.
If there is intellectual integrity on the Right-side of the court, this case against the ACA should be decided unanimously. The reasoning here is simple- the rest of the ACA was clearly constitutional- the only questions about it were the mandate as originally enacted, the coercion against the states on the Medicaid expansion, and that some of the spending didn't seem to be properly enacted by the original provisions of the law. Each of those have been decided in the last 8 years at the level of SCOTUS. This particular case is clearly moot give that Congress has amended the original law in a constitutional way, and has all but severed the rest of the ACA from the mandate itself. The proper decision is to dismiss the suit brought by the states arguing the ACA should now be thrown out.
No matter what anyone says, Obamacare was a landmark in federal legislative meddling in something that needed a few thoughtful supplements and tweaks.
The Obamacare Fiasco is a symptom of an attitude toward government that has gone badly wrong...and these kids today* apparently believe we need more of it.
I have a proposal: raise the voting age to 40 and add a property requirement.
*anyone under 40
Congress always had the power to impose a tax--they just didn't want to call it that. Now there is no tax, and the legislation is still there--go figure.
I envision Charleton Heston (a la Soylent Green) screaming, "It's a tax!!!!!!"
The ACA without a mandate is sham legislation. A mandate without a penalty makes it not-a-mandate. What do we have left?
We still have 27 million uninsured. Around 2/3rds of those who gained insurance after the passage of ACA were added via Medicaid. Many of those newly enrolled were already eligible under the old rules. What we have left is an act that does little of what it was supposed to do, and what it does do, it does poorly. Hmmm, kind of like most government programs.
Yancey Ward said...
Zero is still a number.
Actually...
Sometimes it is and sometimes it isn't...
John R. Roberts should stand up in public, admit he was a complete douche and the opposite of a judge, and commit ritual seppuku in as public a manner as possible to redeem his family's honor.
Congress "would not" have passed the ACA without the tax?
No. The tax angle made it sorta kinda constitutional, not an over-reach beyond the authorized constitutional powers of Congress.
Congress "could not" have passed Obamacare without the tax, and had it survive judicial review, because Obamacare without a tax angle is not constitutional. Congress has no authority to run health care under federal control. None. Zero. Zip. Nada. And Roberts highlighted that when he found a way to keep Obamacare alive via the tax powers angle.
Somebody needs to point this problem out to Bernie, Warren and Biden whenever they open their yaps about their plans to nationalize health care.
When the ruinous hand of government reached under our skirt to fondle our health i insurance, it should have been batted away. Now the damage is done. The only way to keep them out now is to get mad and remove their hands from your knee, where they still sit awaiting your slap in 2020.
The ACA is about HMO's; not doctors and nurses and medical insurance.
The insurance companies that wrote Obamacare assumed the mandate would force everyone into their hands.
The Democrats finally realized enforcing the mandate on employer and union plans would be electoral suicide.
mikee: 'Somebody needs to point this problem out to Bernie, Warren and Biden whenever they open their yaps about their plans to nationalize health care."
On the contrary, the dems know they can pass anything they like and toss it up to the Supreme Court where Roberts will do whatever it takes to make sure it sticks.
Just wait until DJT replaces Ginsburg. That's when we will know if there is a "real Roberts" who will emerge as a consistent liberal. My guess? He will indeed.
It was malware, you need to remove amd tevoot the operating system.
This is why I chuckle when I hear the left masterbate to the New Green Deal or nationalized health care as Obamacare was a complete cluster. It was passed along one party vote, was not completed implemented because it was electoral poison and is now stillborn.
They threw away their control of congress and saw over 1,000 office holders nationwide thrown out on their ear. Imagine what will happen if they try any of their other socialist nonsense? Even a tapeworm will avoid a scalpel if its jabbed in the head constantly.
Drago said...
Just wait until DJT replaces Ginsburg. That's when we will know if there is a "real Roberts" who will emerge as a consistent liberal. My guess? He will indeed.
I have my doubts about Kavanaugh and Gorsuch and Alito.
I think Kavanaugh would have guaranteed flipped by now if they hadn't called him a rapist.
Not a single one of those people would vote to eliminate Roe v Wade anyways. They aren't judges. They are god priests.
I think the only one with the courage to do it would be Clarence Thomas. He is the only actual judge on the court.
"I envision Charleton Heston (a la Soylent Green) screaming, "It's a tax!!!!!!"
Heh!
But, politically, Obama told us it wasn't a tax.
In 2012, Chief Justice John Roberts agreed with the court’s four more liberal justices..
Pet Peeve: Conservative justices are usually described as "conservative," while liberal justices are usually described as "more liberal" or "liberal-leaning."
That's a casual observation, not a researched fact. A quick search of SCOTUSblog didn't provide much either way.
The ACA should be struck down as a monumental failure of government overreach.
Health and Human services should dissolve its CMS department. (Centers of Medicare & Medicaid) Government acronyms do not have to make any sense.
In its place, all state insurance offices should be dissolved
Heath insurance should be sold over the internet and coast to coast.
In short the government needs to get out of healthcare field as much as possible.
It's really remarkable how well the Chinese single-payer health system responded to the corona virus.
/sarc
I think Kavanaugh would have guaranteed flipped by now if they hadn't called him a rapist.
I agree. I thought he was a squish when Trump nominated him. The left over reached and have probably flipped him for good.
The left over reached and have probably flipped him for good.
Wait a sec! You're saying that a judge...a Supreme Court Judge, at that...would ignore the basic rule of law and instead allow his personal feelings & biases to govern his rulings & decisions?
I remember hearing about how principled & honest Kavanaugh is - that doesn't add up to what you're now saying.
"Controlling The Availability and Cost of Health Insurance and Penalizing People Who Don't Like It" is right there in the Constitution, so I don't see what the problem is.
purplepenquin said...I remember hearing about how principled & honest Kavanaugh is - that doesn't add up to what you're now saying.
Apparently PP is learning for the first time that people are different. Put that together with last week's revelation that people sometimes lie and he's been through quite the learning curve recently.
purplepenquin said...
The left over reached and have probably flipped him for good.
Wait a sec! You're saying that a judge...a Supreme Court Judge, at that...would ignore the basic rule of law and instead allow his personal feelings & biases to govern his rulings & decisions?
His and her.
We have been saying this for decades. You are just too partisan to notice.
For example...
There is no other way to describe Roe v. Wade. It is a complete travesty. There is nothing judicial about it.
The god priests decided what the right answer was and tortured language mercilessly to decide that the Constitution provided a right to have an abortion.
They also found marriage in there somewhere. They found the right for governments to steal private property...
Michael K said...
I agree. I thought he was a squish when Trump nominated him. The left over reached and have probably flipped him for good.
I think you will be disappointed.
The tax giveth and the tax taketh away.
Recall how difficult it was to pass the ACA. The D's needed a House majority and the Senate needed 60 votes to overcome a filibuster and needed a president who would sign it.
The individual mandate is constitutional only because it was deemed a tax. The thing about tax laws is that you only need a bare majority in the House and a bare majority in the Senate pass a tax change because they are reconciliation bills. The Google tells me that " In contrast to most other legislation, senators cannot use the filibuster to indefinitely prevent consideration of a reconciliation bill, because Senate debate over reconciliation bills is limited to twenty hours. ... The House and Senate still must pass an identical bill and present that bill to the president."
So while Roberts called it a tax to save it, that decision also made it far easier to kill the mandate.
wasn't there something about InterStateCommerceClause powers apart from tax powers?
It's a zero tax. Congress can do anything it wants by imposing a zero tax penalty. Congress can pass attainders or close churches now, by adding a zero tax to the law. If Bernie is elected they can make him king by also imposing a zero tax.
I know this doesn't matter to lawyers, and I don't like Obamacare, but this challenges seems absolutely senseless.
Roberts' Obamacare decision was too clever by half and will require even greater intellectual gymnastics to save it now.
But faced with the choice of preserving the private system or moving further toward toward Medicare-for-All and a single-payer socialist regime, Republicans may well finally decide they can live with Obamacare.
Isn't this basically what the word "moot" means?
"And the mandate is such an integral part of the ACA, they contended, that the rest of the law must be struck down as well...."
The Obmama Congress that passed the ACGA may or may not have thought the mandate was integral but the Trump Congress that repealed the tax penalties associated with the mandate must not have thought so. If they did amend the ACA in an unconstitutional way, the proper remedy is to declare their amendment unconstitutional, reinstating the original ACA.
I think this one gets decided based on the outcome of the 2020 election
If a Democrat wins, Roberts will come up with another dishonest line
If Trump wins, however, I think there's at least a 50% chance that Roberts says "it's not a tax, it's not Constitutionally legitimate."
OTOH, if Trump winning leads to RBG getting replaced, Roberts no longer matters
purplepenquin said...
The left over reached and have probably flipped him for good.
Wait a sec! You're saying that a judge...a Supreme Court Judge, at that...would ignore the basic rule of law and instead allow his personal feelings & biases to govern his rulings & decisions?
Since that's what's happening pretty much every time the left wins on the Supreme Court, why are you surprised at this?
I remember hearing about how principled & honest Kavanaugh is - that doesn't add up to what you're now saying.
What they're saying is that the thought Kavanaugh would defect and become an unprincipled Leftist once he was on the bench. but that the criminally and evilly dishonest behavior of people like you, PP, caused Kavanaugh to stick with being principled & honest.
I understand that you'll never be principled or honest, PP, but could you at least try being intelligent?
The Dems are currently have an unusual run of luck. From what I read elsewhere this case won't be decided until after the election so they will be able to hold this over Trump up until the election. Trump, the man who is going to eliminate pre-existing conditions protections. You don't even need to write the ads, people will do it for you on social media.
The Obamacares penalty is unconstitutional, and, worse, it does not increase affordable, available medical care, and sustains progressive prices under cover of shared responsibility.
Roberts declares a zero percent tax rate is still a tax....
GatorNavy,
You'd need an entire Constitutional Amendment to do that. Regulation of insurance is neither reserved to the feds nor prohibited to the states... so any state that wants an insurance office is welcome to do so.
So, ARM, you "think" that the Democrats, who are all busy trashing ObamaCare, are going to make a lot of political hay off of attackign Trump for being against ObamaCare?
You're so cute!
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