There is a lot of conflicting opinion being fired at the US Supreme Court’s ruling(PDF) on “Obamacare”. It is certainly a curious ruling both on first and subsequent reads. I think the opinions in the decision make a great deal of, perhaps complete, sense when viewed in the terms of ‘doing a Marbury v Madison‘. That was a decision written by Chief Justice Marshall in 1803. From that decision, Marshall is regarded as the founder of the Supreme Court and the Judicial branch as it came to be understood and accepted in the balance of powers.
In this article, I am not addressing the merits of the Affordable Care Act, I am speaking to the Constitutional elements at work in the decision.
Roberts declares his view of judicial legislating in one succinct sentence. “It is not our job to protect the people from the consequences of their political choices.” Notice he said “political” choices. If something can be allowable under the Constitution, then a restrained Court goes out of its way to accommodate it to the Constitution. If something is Constitutionally permissible, then whether or not to do it is entirely within the sphere of politics, not Constitutional law. We will never find perfect masters and expecting the Supreme Court to attempt that role is contrary to limited government. Roberts appears to be channeling Mencken with this declaration. Roberts’ opinion allows the ACA “penalty” as a taxing authority of the Federal government. The wide scope of the taxing authority is in the Constitution and, with the help of the 16th amendment, almost unlimited. Congress has long used this power to enact “sin” taxes on things like alcohol, cigarettes and even luxury yachts. Congress has long used the tax code to incentivize politically favored behavior, for one example, taking out a home mortgage. Regardless of the “exemption” language, in actual consequence the failure to take out a mortgage results in a tax penalty paid by those who do not take out mortgages. Low enough income thresholds make this “penalty” for not taking out a mortgage meaningless, just as they do for the healthcare “penalty”. Roberts sees the two as a distinction without a difference and was conceding no ground that hasn’t already been long lost, if ever held.
What is the up side? First, by finding this to be a tax the Court has left it wide open to legal challenge on the grounds that it originated in the Senate. Under the US Constitution, Article I, Section 7, Clause 1, “All bills for raising Revenue shall originate in the House of Representatives“. This bill originated in the Senate. The first time somebody challenges the origination of this tax, it must fall on that “technicality” and to enact it, the House must originate and pass the taxing element as a separate bill and the Senate must concur. Allowing for complete severability (the parts that don’t violate the Constitution are allowed to continue unimpeded), that enforcement tax will need to come up as a new bill in the House and be passed by the Senate and signed by the President. Just a long shot guess, but I don’t see that happening. I see at least 5 SCOTUS justices who will grant cert (or more likely let a lower court ruling stand) and strike down the ACA tax on origination basis if the President continues to pursue enforcing it, especially since the decision explicitly permits pre-collection legal challenges that are normally not permissible for tax challenges. To pass a tax of that magnitude after 2010? Not gonna happen. We are safe from this particular “mandate”.
What else happened in this ruling? To the best of my recollection (but I’m not a lawyer) this is the first time I have seen such a clearly enunciated explication of enumerated power to the Federal government and plenary power to the States. In this case, Roberts refers to the “police” power as being exclusive to the states. “Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000).” That was an interesting choice of cases to cite as it referenced Lopez favorably and rejected Wickard. I wonder if this is telegraphing the future reining in of out-of-control Federal police powers. I suspect so. In the very next sentence, he references New York v. United States. This paragraph is worth quoting in its entirety. I provided the Wikipedia links.
“State sovereignty is not just an end in itself: Rather,federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives,liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10).
Previously, I quoted what I think is Roberts’ enunciating statement of this opinion. Here is the quote in full context.
[…] Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Our deference in matters of policy cannot, however,become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.
The questions before us must be considered against the background of these basic principles.
Did you catch that bombshell that slipped in there? “The powers of the legislature are defined and limited“. This may be transparently obvious to those of us who take contracts, and in particular the Constitution as a contract, seriously, but once FDRs eight SCOTUS appointments took control, that statement became ideological heresy. To hear it once again stated by a Chief Justice writing a majority opinion in a landmark case is grounds for celebration. When Pelozi notoriously responded “Are you serious! Are you serious!” when questioned whether the legislature had the Constitutional authority to mandate the purchase of healthcare, she wasn’t playing politics. She is from the school of thought that believes that the Commerce Clause, the Necessary and Proper clause and a couple of other clauses mean that Congress may do anything it pleases if it first recites a magical liturgy containing one or more of those phrases. It is the same sort of thinking that lead them to believe that calling a tax a “penalty” could make it not a tax; for them words mean what you need them to mean. There have been signals that the Court has been heading towards limiting the Federal scope for some time now but with this decision, the Court’s change of course is firmly established. The clear and unequivocal statement that will ring longest from this decision is that there really are limits on what the Federal government may do. To this Court, the Constitution really does appear to mean something.
I’ve run out of steam here, but Randy Barnett, Tom Scocca, Jay Cost, Ezra Klein, and Walter Russell Mead have some interesting takes on the decision and I probably could have saved myself the time of writing this if I had found Sean Trende’s article sooner.
In conclusion, I think this has been a very good week for limited government. For the first time in the history of the United States, a US Attorney General has been held in both criminal and civil contempt for concealing information from Congress. This is the strongest check I have seen on the imperial presidency in my life time, far more significant than Watergate IMO. A traditionally compliant Congress is demonstrating that it takes its oversight responsibility seriously. With a vote of 255-67 including 17 Democrats, this truly is the people speaking and not the Republican party hierarchy (who probably do not like the precedent). The very same day the House cast those votes, the Supreme Court hands down a decision that is a major step in the process of placing the Federal government back within its Constitutional restraints. A good week indeed.
Someone can correct me on this, but … the bill originated in the House. Then it went to the Senate, where it was changed so significantly that it was returned to the House, where it once again passed. So where did it originate? I’d say the House.
Regrettably, you and all the other people who are trying to spin this decision as some sort of “a tactical defeat but a strategic victory” could not be more wrong. Chief Justice Roberts’ opened the floodgates for the destruction of the republican form of government. Although he writes about restraining the up to now seemingly elastic Commerce Clause and the Necessary and Proper Clause, he then opens a whole new venue for mischief by claiming the mandate is permissible as a tax. What then could not be done if deemed as a tax? This was not only a poorly reasoned decision, it was an historic defeat for freedom and liberty.
Dom,
Affordable Health Care for America Act
When the Congress runs out of money they won’t be able to buy votes and America will become a ‘nation’ of sovereign states, funny as it sounds.
With total lack of humility I note in this decision that “coercion” of the collective (the several states) is deemed a Constitutionally unauthorized power of Congress (via the judicial concept of “Federalism”) whilst “coercion” (via “Tax”) of individuals to act has become an authorized power.
And, is this simply because of the differences in the mechanismms of coercions used?
In the case of coercion of the states, it is via spending (which has heretofore seemed an almost unlimited and judicially unregulatable power). In the case of the individuals it is via a form of taxation (direct) which is subject to specific Constitutional constraints (Art I; Sect 9).
This is indeed “Upside Down!”
Indeed the form of “Tax” (direct) is another Constitutional issue.
Stay tuned.
Dom,
I’m reading more on that question and am now uncertain as to the status of the bill. It appears to me that apparently, to get around this stricture, the House “amended” an existing piece of House legislation by completely gutting it and replacing it with the Senate bill during the reconciliation process. But I am not at all clear about the process used. The bill began as “H.R. 3590” titled “Service Members Home Ownership Tax Act of 2009” and somehow tranmogrified into the “Patient Protection and Affordable Care Act“. So you could be right, they may have circumvented the Constitutional restraint by a rather transparent subterfuge.
RRS, do you have any thoughts on this? It looks to me like it may under challenge be deemed to have originated in the House, reality not having any bearing on the matter.
I think, like Richard Epstein, that this is a confused and wrong decision, and seeing some favorable aspect is wishful thinking.
First – Congress said it was a penalty, Roberts took the liberty of interpreting it otherwise. He actually rewrote the law. This is unconstitutional.
Second – the taxation clause also limits the power of Congress, not all taxes are permitted. And a precedent said that if something is not allowed under the commerce clause, it should also be prohibited under the taxation power, otherwise you land again in a situation where there are no limits on congressional powers.
It is a tortured and illogical decision; seems Roberts lacked the courage to confront the Obama administration. The decision about the commerce clause is a fig’s leaf.
Maybe some other time the US will be blessed by better judges.
And now more questions for the “Constutional elements:”
If this economic obligation (Penalty) *is* a Tax, on what is it imposed?
True this “Tax” is a penalty (to coerce affirmative conduct) *measured* by two levels:
1. A specified minimum
2. A percentage of “household income;” subject to a limitation determined by the arbitrary
price of a particular service.
The Tax is not “on” income.
The “Tax” is imposed *on conduct,* non-compliance with a statute.
The “Tax” is imposed on a statutorially determined class, which is *not* uniform (such as a “Poll Tax).
The “Tax” contravenes the Constitutional limitations on the powers of taxation set firth in cl4 of Art I; Section 9.
What has the “Tax” been imposed to “provide” within the meaning of ArtI; Section 8?
Is it to “provide” conduct (rather than revenue) that meets the criteria of those powers?
Does this “Tax” qualify for the powers of Art I; Section 8 by virtue of what it actually “provides?”
How about them “elements!”
The spin continues…
The Constitution ends when the taxes start.
That is what happen when USA is nothing more than One Leg Republic, there is no limit to what the state can take from citizens.
The One Leg Republic is vanishing and USA is increasingly more and more a Democracy without limits to the power of the biggest minority.
Not exactly, Jacob. Congress knew good and well that it was a tax but found it politically inconvenient to admit that. Robert’s response was to say that calling a cat a dog won’t make it bark.
On your second point, huh? Are income taxes required to comply with the Commerce Clause? The16th amendment doesn’t have a lot of restraint built into it.
In fact the only thing that can’t be taxed under the 16th is income you didn’t receive (aka ‘not income’). And the IRS doesn’t even accept that restraint.
MW et al.
The legislative history is such that even Bismarck would barf.
The procedures followed (remember the Slaughter Rule) and need to avoid reconciliation have probably given this particular collage of legislation (prepared by staffs in Reid’s office – doors shut) a solid defense against the “revenue origination” provisions; at least from my following the Bill at the time.
Mid,
Like RSS said – what are they taxing ? Income ? No.
See the RSS comment, and the Epstein article on the limits of taxation.
Epstein argues that if the congress doesn’t have the authority to force people to buy insurance under the commerce clause, it should also be barred from pursuing the very same thing via taxation.
Taxation should be used for raising income, not for policy goals. It has been abused, regularly. The court’s approval of this new abuse isn’t a cause for celebration.
Justice Roberts went out of his way in order to avoid striking down this unpopular law, that was passed on the most partisan lines and smallest of margins.
Justice Roberts ran away from confrontation. Maybe he is right, I don’t know. I tend to agree that this is a matter of politics, and not a constitutional question.
But I see no silver lining in this decision.
Thanks for that, RRS. It pretty much reflects my suspicions at this point.
Regarding your comment at June 29, 2012 09:41 PM, any tax that is conditioned on income is by its nature, an income tax. Whatever stipulations for who pays it, it is not due for people without income. Under those lights, this must, regardless of political posturing, being construed as an income tax. Administering it through the income tax process supports this foundation. For comparison, think of property taxes. Not conditioned on income, a property tax will trigger a bankruptcy auction regardless of the income of the person unable or unwilling to pay it. Think of a financial penalty (fine) for committing an offense. Lack of income doesn’t wipe out the fine. Being conditioned on income, this “penalty” is a tax on income, not a capitation (poll) tax, etc.
Another precedent Roberts appears to me to be setting here is “saying it don’t make it so” or as I said earlier “calling a cat a dog won’t make it bark“. Considering that misuse of words has long been a weapon in the arsenal of the progressive war on the Constitution, I welcome this prioritizing of substance over labels.
MW:
The “tax” (penalty) in question is not “conditioned on income.”
It becomes due and payable regardless of income available.
(see, minimum)
Excise, Internal Duties and other levies are administered through the IRS (Internal Revenue – not – Income Revenue).
You may confuse the provisions for “assistance” in acquiring insurance, conditioned (based on) income with those for the incidence of the tax. The “taxable event” is non-compliance.
The avoidance of that event (hence non-taxation) by “assistance” conditioned on income does not change the nature of the tax. It is a direct tax.
I have no idea of what treatment of property taxes has to do with this classification. Income tax deficiencies can result in asset seizures.
RRS,
Actually, my understanding is that it is. Quoting the decision (my underlining) –
That’s pretty clear.
Caveat: I’m not a legal scholar by any stretch of the imagination. But it seems to me that sliding legislation past voters under the Commerce or N&P clauses is a piece of cake, politically; relatively few voters see any reason why those clauses should limit legislative action. But a new tax? That’s something voters understand and notice. So, from my (admittedly simplistic) perspective, it seems that Roberts has given Congress the go-ahead to do all manner of things that are politically difficult to do, but put the brakes on a lot of mischief that would otherwise be relatively easy, politically — a net gain.
The congress said, the law says, that there is a mandate to buy insurance. Paying a penalty is not an alternate way of complying, it is a penalty for not complying.
Congress could have imposed a tax, and said “we will use the income to buy insurance for you”. This would have been constitutional. It choose not to act this way.
Roberts said: mandates and penalties are unconstitutional (under the commerce clause). Fine. He should have said to congress: this law as written, is unconstitutional. Go and rewrite it along the above (taxation) lines.
He should not have engaged in torturous logic and interpretations. He should not have read into the law what isn’t there.
Mid, I differ on two points: 1. That this is a good, or logical, or fine juridical decision, and 2. That it is a cause for celebration for libertarians. It is neither.
Does anyone know if this “tax” is regressive, flat, or progressive? My initial impression, not based on much, is that it is extremely regressive.
Property can generate taxes without generating income. However income cannot generate taxes without the presence of income. If income is enough to generate exposure to a levy, then it is a tax on income. Don’t let ‘repurposed’ words obstruct a clear understanding of what is happening. Functionally, not linguistically but functionally, this is an income tax.
Quoting again from the decision –
So, quoting the argument that the court accepted, if the “penalty” is “just a tax hike on certain taxpayers who do not have health insurance” then regardless of the linguistic gymnastics of the politicians, it is functionally the same as a tax hike on certain taxpayers who do not have home mortgages.
The confusion comes in thinking of taxes as liabilities or exemptions. While that may work for tax accounting purposes, at the end of the day, the Federal government takes a bunch of your income and under the Constitution’s 16th amendment, there are no rules so liabilities and exemptions are irrelevant. At the end of the day, the only Constitutional restriction on income taxes is that they must be on income. Not quoting the decision but I think reflecting the reasoning of it, how the taker chooses to define his takings is immaterial to the person being taken from. This walks and quacks like a duck. Constitutionally, it’s at duck.
Dom, working off the top of my head, I think I recall that it begins with a 2.5% levy on income with a minimum payment of $650. At a minimum, people with too little income to file don’t need to pay it and it is possible that there is a higher threshold before it is assessed.
The assumption is that when 2.5% of income exceeds the cost of premiums, people will choose to buy insurance. Presumably, that the requirement that insurance companies cover high cost enrollees at a loss will drive up the price of premiums is the intent of the people in back rooms who wrote this legislation.
The predicable result is that eventually only the very well to do can afford private coverage and the demand side of healthcare will have been fully socialized. I think most of us understand the purpose of this legislation is to start us on an irreversible path to single payer followed closely by fully socialized health’care’. What I am addressing here is strictly the Constitutional facets of this particular attempt. Tedd is right. Roberts is aiming to extinguish the fuel, not the flames.
this will jump around: I agree with TK, it opened the floodgates.
IMO Roberts told us any Law is OK if you attach a fine. The SC doesn’t care because bad laws can repealed by a wiser set of politicians. Or not.
i.e. don’t call me, I’m going on vacation.
“income” in the 16th Amendment can be defined any way the government wants. Nothing is out of reach or control. The evolving Constitution makes words meaningless when they are inconvenient.
The tax can be called both flat and regressive. But at least 60% of the population will soon be too poor to pay for it. So it will just be given to them. Is that a flat entitlement?
Tedd sez he isn’t a legal scholar. Doesn’t matter. This fight is all about what can be forced upon people. Check out Lenin’s Who, Whom, the central question of politics. It is also about whether words can be “adjusted” whenever it is convenient.
My view? Four liberal justices are completely reliable. The crucial fifth vote is now secured. Roberts has shown he can be rolled. He will be again and again and again.
The election is the last obstacle to the absolute state.
People here and elsewhere declaring that, to use KTWO’s choice of words, this decision “opened the floodgates” to using taxes to manipulate behavior are ignoring two important facts.
One, taxes have been used to manipulate behavior for a very long time and this does not expand the power. Two very common examples are the home mortgage deduction and cigarette taxes.
Two, taxes are taxes and whether they are phrased as tax liabilities or tax deductions from other liabilities is irrelevant. How the taker chooses to define his takings is immaterial to the person being taken from. If your total taxes go up or down according to your behavior, then believing that what politicians decide to call their manipulations matters is to fall for their charade. If you are one of those people who believe that it makes a difference whether the government taxes you $4000 for not taking out a mortgage rather than raising your taxes $4000 and then giving you a $4000 “deduction” for having a mortgage, then you are part of the problem.
Roberts gave away absolutely nothing. What he did is force the Congress to call their games “taxes” and not hide them behind fantasy interpretations of the Constitution.
‘The election is the last
obstacle to the absolute
state.’ Indeed, and this is precisely what Roberts is telling us.
Even in a mere democracy, let alone in a republic, the courts’ job is not to run the country – it is the people’s job, through the mechanism of government. The courts’ job is merely to make sure everyone plays by the rules. It doesn’t make the rules (or at least it is not supposed to, in my opinion), and it is not supposed to care if the rules are good or bad – or if the policies they produce are good or bad. What Roberts is doing is calling a spade ‘a spade’. He is telling us that the rule that produces this particular policy is the 16th. If you don’t like the rule or the policy it produces – well, that’s what the elections are for.
That is as far as principles are concerned. As a practical matter, this is a very good ruling, since it leaves the left complacent, while (hopefully) angering, and thus energizing the right towards the elections. Overturning ACA by the court would have likely achieved a polarly opposite result.
And, if nothing else, one could say that Roberts dealt us lemons, with at least a pinch of sugar to on the side. We will be stupid not to use it to at least try and make lemonade.
Midwesterner: actually your first paragraph is not what I said. It links my words into what others said. But no harm, it is close enough.
Right. Taxes are used to manipulate. I see this decision differently. It is a submission to almost legislation because bad laws might be changed someday by wiser politicians.
Admittedly other interpretations can be made. IMO He might as well have said wait for the Resurrection; things will be OK then, probably.
It is why I told Tedd this is not fundamentally a legal fight. But the thread was supposed to be and there are many interesting technical weaknesses.
I think Jacob said it perfectly; just rewrite the blasted thing into a tax if you want a tax. This Court simply didn’t about the technical flaws.
I rather botched my last. Distraction during proofreading. But the errors are so easily seen they won’t mislead anyone.
change ‘almost legislation’ and ‘this court didn’t about’ to
‘almost any legislation’ and ‘this court simply didn’t care about..’
KTWO,
To riff on Alisa’s point, courts must not legislate. If we are to the point that we need politically appointed judges for life to correct the errors of the legislature (and by extension the voters) then we are truly screwed.
Roberts has thrown down two gauntlets to the legislature. One of them is that the court will no longer tolerate a New Deal rejection of Constitutional constraints on the legislative branch. The other gauntlet is that all levies intended to manipulate behavior, an unfortunately long established activity which this Court considers to be a police power reserved to the states, must be labeled as “taxes” and the revenue must go to the Treasury. This ruling has the advantage of preemptively cutting off any third party transfer payments (ie forced premiums disguised as taxes). As Tedd points out, taxes are very dangerous politically and just the truth in labeling element will greatly reduce the number of votes these kinds of schemes will get.
From this point forward, social engineering in the guise of Commerce Clause or Necessary and Proper is off the table and social engineering via monetary penalties will have to carry the label “taxes”. Those two points are worth a lot.
This isn’t the Court’s “submission to almost any legislation“, this is the Court announcing that it will neither give the Legislative branch free rein unchecked by Constitutional limits, nor play along with political charades intended to fool the voters. The more I review this opinion, I think it is the best possible achievable decision they could reach. I particularly like the rather unmistakable refusal by the Court to “be the grownup in the room”. “It is not our job to protect the people from the consequences of their political choices.” is about as close as the Court can get to saying to the voters “grown up and take some responsibility”. And the Court/Roberts is right, unless the voters wake up and smell the sewerage, nothing the SCOTUS can do will make any lasting difference.
Midwesterner, et al. Good discussion. Your views are as valid as mine. I believe we try to analyze but the information is insufficient so we come to different answers.
Sometimes I feel we are merely firing blanks at an invisible ghost who isn’t present anyway. The Ghost is Truth.
In recent months I have started looking at the decider to forecast the decisions. e.g. Merkel the person v. the Euro Black Hole, Roberts facing the inevitable ObamaCare ruling.
Gradually I placed less importance on words or legal niceties such as where did the bill originate. I would be very happy to be wrong. Maybe Roberts has helped conservatives.
Samizdata is a great blog. Still I only visit perhaps twice a year. Best to all……….
I’ve read everything posted and there are many good points made. Here’s why I think the Roberts opinion is good for liberty:
1. The individual mandate stays under Congress’s Article I Section 8 power to raise taxes. If the PPACA or the Solicitor-General had quoted this power rather than the Commerce Clause, this case would not even have got to the Supremes.
2. Raising taxes is unpopular, hence why the Administration didn’t use the A1S8 power. The opinion says, yes, this is a tax, no matter what the Administration says. Loading a rifle for Romney to fire, if he wants to.
2. The “Broccoli” extension of the Commerce Clause is shot down in flames. Firm limits are now set on the power, leaving open further assaults on it to bring it back to what it was before the New Deal, along the lines of what the Rehnquist Court did in Lopez and Morrison. Wickard vs Filburn is now vulnerable, rather than reinforced.
3. Killing the power to enforce Medicaid expansion, together with the toothless “Healthcare Exchange” requirement, puts states in the driving seat. They can now reduce major parts of Obamacare to a nullity, if they wish.
4. Obama’s “Run Against the Supremes” strategy is dead in the water. Roberts has shot that fox.
5. It eliminates electoral ambiguity. If you want to stop Obamacare, your only option is to vote R in November.
6. Any chance that this opinion might be used to challenge the Supreme Court’s position as arbiter of the Constitution is gone. By this opinion, the Chief Justice has secured the Marbury v Madison role of the Court against challenge for at least a couple of generations.
Smart guy, that John Roberts
I remain unconvinced by the comments that are supportive of Roberts’ opinion. The floodgates to mischief are wider now thanks to his muddled thinking. Roberts may have closed, or at least narrowed, the Commerce and the Necessary and Proper routes to tyranny, though I think this is a generous interpretation. It is certain that he has now opened a new front in the war on freedom – the tax front.
Roberts could have achieved exactly what you optimists are reading into the opinion by joining with the 4 justices who voted to strike down the law in its entirety, and THEN writing that the law would be permissible if enacted as a tax instead of a mandate. Instead, he uses legal legerdemain to twist it into legality with here’s it’s a tax, here it isn’t.
His pathetic cop-out that the solution for bad political acts should be political is especially grating. If so, then why have a Supreme Court with judicial review at all? The Constitution is supposed to be a bulwark against government tyranny. Roberts instead develops a new way to use its words to justify a statist power grab.
“It is not our job to protect the people from the consequences of their political choices”
Speaking as an outside observer – it absolutely is. In the UK, the universal franchise has been appealed to to give the government of the day arbitrary power in the form of a “mandate from the people”. It is a principle of law, however, that no man can consent to his own assault – not to mention those who did not vote for the incumbent.
Would a “mandate from the people” authorize a Prima Nocte Bill? Furthermore, it is not the business of a court to determine the reasons that each and every voter had for voting as they did, which includes presuming that Obamapression was every Democrat’s priority.
Unless an explicit policy-by-policy mandate can be pointed to that affects only those who signed the mandate, and the mandate contains no “unfair terms”, then the Court must defend the Constitution (insofar as the latter exists as a buffer against arbitrary power).
As for “wishful thinking” regarding legal wrangles, did Obama ever get Congressional approval for war on Libya?
Alisa said:
“‘The election is the last obstacle to the absolute
state.’ Indeed, and this is precisely what Roberts is telling us.”
TK answered:
“His pathetic cop-out that the solution for bad political acts should be political is especially grating. If so, then why have a Supreme Court with judicial review at all? The Constitution is supposed to be a bulwark against government tyranny. Roberts instead develops a new way to use its words to justify a statist power grab.”
TK wins.
“The election is the last obstacle to the absolute
state.” Sure. But we hoped there was also another, before last, obstacle – the Constitution, implemented by the Supreme Court.
Roberts said to us: forget about the SC, it is spineless, worthless.
Maybe this is true, maybe our expectations from the SC or the Constitution itself were unrealistic.
But, as I said, there’s nothing to celebrate here.
As to Midwesterner’s hope that the rejection of the mandate under the commerce clause will serve as binding precedent for future decisions – that is wishful thinking.
We don’t know what future decisions will be.
To me – the precedent created by this decision is different. It is: “The SC shall never block major congress initiatives, it will find always some pretext to let them stand.” In other words – it’s a confirmation of a longstanding fact: the SC is irrelevant.
The following excludes the present company, since I am unfamiliar with each and every person’s stance on the subject: it is instructive how so many of the voices expressing disappointment at what boils down to a lack of judicial activism on the part of Justice Roberts, are coming from the same quarters that formerly have been complaining about that same judicial activism, when that activism was promoting a political agenda unfavorable to those, em, quarters. Bad policies are a mere symptom – the disease is broken rules.
Not so sure about that: another option is merely not voting O, but making sure to vote in the House and the Senate – but I’m not going to open that particular can of worms yet again…:-)
…other than that: what Edward said, of course.
Alisa: In my comments R is for Republican, not Romney. Though R is an R, so there’s that.
My bad, Edward:-)
Yup. I get that feeling quite often.
Sadly, I think you are right and this is a case of legislative, not judicial, abdication. A bill written in secret by the staff of the Senate Majority Leader goes to the President with an “H.R.” designation. It could not have done that without the complicity of the House and I don’t think the Court can touch that issue any more. I would put a “mia culpa” in the original article but when I added a link to the article after the fact, the blog software for some unknown reason changed the article’s URL (changed the ‘1’ to a ‘2’) so now I am afraid to amend it any further. Please consider this my retraction of that assertion. While the bill clearly is a product of the Senate, it will stand as a House bill for the record.
I, too, think Edward’s comment covers the key factors. It is important to recognize that between A1, S8, and the 16th A, Congress can do just about an darn tax scheme it wants to except a non-apportioned capitation (aka ‘poll tax’) and irregular “Duties, Imposts and Excises”. About the only thing that leaves out is a national property tax. The very clear essence of the 16th is “All of your $ are belong to US”.
No, Kevin. It absolutely is not. You are lifting that sentence out of context and ignoring a key qualifier, “political”. The next paragraph, which I quoted in the article, elaborates –
Past courts have repeatedly attempted both legislating from the bench and repairing broken legislation. It always ends badly even when their intentions are sympathetic ones. The job of the
Court is one of a referee to see that the Constitution is upheld. Once it has achieved that, it absolutely should not continue on to saving the people from their political decisions. To quote “The One”, elections mean things.
Jacob:
Congress could have imposed a tax, and said “we will use the income to buy insurance for you”. This would have been constitutional. It choose not to act this way.
In other words, Obamacare is not socialist enough to be allowed under the US Constitution.
The question isn’t whether the court is “activist”, this being a relativist and meaningless term.
The question is what it is “activist” for. If for freedom – good, if for socialism – bad.
The Constitution is an 18th century document, that upholds, mainly, individual liberty, and limits the power of the government, according to the fashion at that time. This fact is not disputed, even lefties concede that.
Liberty lovers (we) hoped that liberty inclined judges in the SC could block the advancement of the socialist state by referring to the Constitution. Lefties (liberals) see the constitution and the SC (in the US) as nothing more than an outdated nuisance to be gotten rid of.
This case is a clear cut victory, as clear and as practical as can be, of the leftist point of view.
This is precisely the kind of thinking that got us where we are now.
Here is a “second opinion” about this decision, by Mark Steyn.(Link)
No shit, Sherlock! What does Mr. Steyn propose then? Change the people?
He then proceeds to show precisely why this ‘individual mandate’ thingy is nothing but just another tax. I understand that he’s pissed that, to use Mid’s words, the grownup in the room did not intervene, but merely told the children to grow up and take their lives into their own hands. Growing up sucks, it really does. With all the otherwise genuine respect for Steyn, I’m with George Will on this.
Alisa,
Where is the “good day for limited government” ?
You seem to say that the hope of getting some help from the SC is delusional. I tend to agree.
On the other hand, trying to turn this debacle into a “good day for limited government” is even more delusional.
It is a bad day, maybe not worse than could be realistically expected.
Ah, I forgot to mention:
The SC decision is tortured, muddled and dishonest.
In the various comments in this very thread?
Yes, if by ‘help’ you mean a political (i.e. a de-facto legislative) action. For the Nth time, the courts are not there to legislate, they are to supply the legal analysis. They are there to explain the rules (no matter good or bad), and to tell us who plays by those rules and who does not.
Jacob, “limited” government is government that is limited by a constitution. In this decision, the US Constitution prevailed as law to the disappointment of partisans on both sides of the political question (including, obviously, you).
For the Constitution to prevail over politics is a very good day for limited government. If there is any relativism here, it is yours. The Constitution says what it says. It was upheld correctly. The remedy is a political one at the ballot box. Your belief in the power of “grown-ups” to kiss boo-boos and make them better is touching in its simplicity.
This decision was a victory for the principle of government limited by over-arching law called the Constitution. The fact that de facto extortion by the Federal government over state activities was struck down by a 7-2 margin is pure frosting.
I think both Alisa and Midwesterner miss the point entirely. The Constitution was not upheld and limited government did not prevail. The Constitution was further stretched out of shape to allow an even more intrusive government. Roberts has afforded statists a new justification (tax) to defend anything it does.
Roberts is the judicial activist who effectively has legislated by calling a penalty a tax while even as we debate the outcome the President and the ACA supporters continue to deny it is a tax. I repeat my earlier assertion – if Roberts thought it legal as a tax, then he should have struck down the ACA and said that if it was rewritten with an explicit tax rather than a penalty it would have passed muster. I believe that would also be a stupendously idiotic decision, but at least it would be a coherent in its approach.
In a way, I’m not sure what’s more disappointing, this horrific ruling or the fact that otherwise sane people deceive themselves into viewing it as a victory.
The Government requested that the taxing authority be considered if the act was found unConstitutional on the other grounds. For the court to have done what your recommend would have been pure politics, an abandonment of judicial restraint, and served no purpose other than to advance Court decisions as political spoils.
Quoting the decision –
This point arises out of the commonly held distinctions between taxes, regulations, penalties, fees, levies, exemptions, etc., etc., et-bloody-cetera. Truth is that these distinctions are purely technical, having been imposed by the establishment to confuse the obvious: all these are nothing but various facets of plain old government intervention. All government intervention carries material costs to the governed, whether direct or indirect. When such costs are direct, we call them ‘taxes’. Read the actual opinion – it says as much almost verbatim. Demanding that Obamabots rewrite the bill as an explicit tax would defeat that premise, which is a very good and useful one for our side, through the virtue of being entirely true.
Let’s accept it. The Court has “punted,” putting the ball amongst the spectators and saying Ausie Rules apply.
Such is Dicta.
Did the Government say pretty please when it asked? You clearly do not understand what judicial restraint is. It is supposed to mean that a judge should not strike down a law unless it is clearly unconstitutional. It does not mean that a judge need to manufacture new ways to justify an unprecedented power grab.
The ACA has just brought about 1/6 of the US economy more directly under the control of the federal government. It has fundamentally transformed the relationship between the citizen and the state. Tell me again how this represents a victory for freedom and limited government?
Please continue to delude yourselves that this contorted legal decision advanced the interests of liberty. Consider me unpersuaded.
RRS: heh.
I would also note that this act, legislated by a dubious procedure, passed by the narrowest possible margin, on the strictest partisan lines was a good candidate to be struck down. It is also unpopular.
I believe that major initiatives should no be enacted on such slim majorities.
Alisa: “the courts are not there to legislate” – sure, they only need to strike down unconstitutional laws.
That they failed to do so in this case doesn’t seem to me “a good day”.
What troubled me about the ruling is not the interpretation of the constitution. What troubled me was the SC seemed determined to help Obama get this law passed.
They could have said “Actually Mr. President- it is not constitutional to compel Americans to buy a product. However, if you rewrote the law to say the individual mandate was a tax upon those who refuse to buy insurance – then theoretically at least that would be constitutional. If you wish, feel free to run another bill through congress and we’ll have a look at it, m’kay?”
No, what they ruled what Obamacare, as written, was unconstitutional – but if you change this bit over here, pretend that bit says the word “tax”, ignore several commentaries published by the authors of the bill….. then, yeah. It’s constitutional Mr. President. Have at it!
The SC’s remit is not “make this bill constitutional so we can pass it”. It either is, or it isn’t. Their ruling clearly indicated Obamacare isn’t. That they supported it says to me that the SC are a bunch of bought-and-paid-for traitors.
And to reject the Government’s argument that it is also allowable as a tax is to ignore the case presented to the court and undertake legislating instead. The Court did not manufacture any new ways of grabbing power. Sadly, that was not at all necessary.
The Court had no need to write new law and the Court did not write new law. As has been pointed out by many commenters here and all over the internet.
That phrase alone indicates that your blinders are tightly cinched to prevent any glimpse of reality from leaking through. There is absolutely nothing unprecedented here. Only word games. Word games that the Court refreshingly rejected. It looks like a tax, it walks like a tax, it quacks like a tax. It is a tax. If you truly think that raising all taxes and then giving tax discounts to anybody who takes out a home mortgage from private lender is constitutionally different from charging more taxes to anybody who doesn’t take out a home mortgage then you need to explain the parts of the Constitutional taxing clauses that makes them different.
Another big treasure in this case is that the Court rejected the words games and called a spade a spade. You are just one more person wishing a political court had overruled not just the law, but the Constitution, in order to achieve the result you desire. It is a tax, the Constitution gives Congress almost unlimited taxing scope, and it is in no way without long standing precedent. You repeatedly assert that because many Congressman and the President defined it as a penalty, their definition should be accepted. Would you hold that same opinion if they decided to redefine “speech”, “property” or “keep and bear”? I thought not. You like their definition this time only because it would yield the outcome you desire. It is the Court’s job when making Constitutional judgements to work not from the definitions of the politicos du jour, but from the definitions of the ratifiers of the Constitution and amendments. Pretty clearly they would have considered any levy that was both conditioned on the existence of income and defined as a percentage of income to be a tax on income.
The Court is charged with ruling on the law as it will be enforced, not the sales pitch given to the cameras. Not a one of the legislators voting on the bill even knew fully what was in the bill. While the sales pitch may have made unconstitutional claims (hardly a novel occurrence) the Court found the mandate (correctly) to be a tax.
I note that several people here seem to be ignoring the facts presented, are bringing none to the table, and are only repeating the same assertions with ever greater stridency.
Midwesterner,
There is so much wrong in what you write that I can only focus on what I perceive to be the heart of your misinterpretation of what I and others are writing.
By definition, the ACA is constitutional. Why? Because 5 fools in robes said it was, and the system is set up that they get to make the call. I merely stated that it was a bad decision, deleterious to liberty, based on bad logic and muddled thinking. I am not the one with blinders on. You are the one with rose colored glasses, however. This decision will not limit government expansion, it will serve as a new basis to erode individual freedom.
It seems pointless to argue about specifics. For example, the Constitution does not give the Congress almost unlimited taxing power. At least before this ruling it didn’t. It may have been substantial, but not unlimited. This ruling does greatly expand what government can do under the rubric of its taxing authority.
You have not persuaded me. I find your assertions shallow, your factual support lacking, and your conclusions dubious. Clearly, you reciprocate the sentiment. That’s fine. We can agree to disagree. At least until the SC rules that I can be fined/taxed/penalized for not agreeing.
A good summary:
http://washingtonexaminer.com/randy-barnett-says-roberts-tax-power-argument-is-lame-but-easily-fixed/article/2501028
Here is a link to what I believe is a better reading. Read both and decide for yourselves.
http://online.wsj.com/article/SB10001424052702303561504577496520011395292.html
Oh, sorry TK, that was not addressed to you – you’d need to catch your breath first…Just kidding:-)
Citing John Yoo as an argument from authority (Yoo presented no legal analysis, only assertions in that editorial) in defense of Constitutionally restrained government would be the punch line to a joke if it weren’t meant seriously.
For readers unacquainted with Yoo, he is the architect of the Patriot Act, a strong and persistent defender of warrantless domestic wiretapping, and defends Bush II’s extensions of government power by saying the Bush didn’t do anything that Lincoln, Woodrow Wilson, or FDR didn’t do. If you picked three presidents most hostile to the Constitution, which three would you pick? I would pick those three. If we make it four, I would add Obama.
This is the Yoo that created the facially reasonable policy that you could declare somebody an enemy combatant and if nobody claimed them, they lost all rights as a human being. They lost the Geneva Convention, the lost the US Constitution, they lost habeas corpus for any reason in any court in the world.
While that might seem a reasonable way to deal with terrorists, it begs the question of who decides who is a terrorist. It Yoo’s book, the President gets to make that call without any review by any other authority. As libertarians, any exercise of Yoo’s claim should terrify us. Anywhere in the world, if you are not a US citizen (and not always then) this interpretation of Executive power would make you fair game if no government claimed you.
Legal and civil issues aside, what does that say about Yoo’s moral philosophy on the individualist/collectivist scale? It says that humans are livestock that belong to states. And like livestock, if no government/rancher owns you, you are unbranded and any government can do anything it wants with you. Including torture. Which is another one of Yoo’s arguments. That on the President’s say-so without any judicial review, the President can order the torture of somebody he decides to consider a threat.
And this is the John Yoo being cited as an authority on Constitutional restraint of governments. It would be quite funny if TK wasn’t serious.
Damn, I go away for two days and come back to a thread that takes over an hour to work through!
For the record, I think that Midwesterner’s take on this is completely wrong. Roberts’ opinion is illogical and internally inconsistent. He begins by stating that the individual mandate is not a tax for purposes of the Anti-Injunction Act (which prohibits challenging a tax before it has been assessed and paid). “The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate betreated as a tax for purposes of the Anti-Injunction Act.” Fine. But then he goes ahead and treats the penalty as a tax (despite the express language of the statute, as well as the consistent and vigorous denials that it is a tax by everyone connected with this Administration other than the Solicitor General) for purposes of upholding its constitutionality. I’m sorry, but it logically cannot be both in the same law, Roberts’ tortured logic notwithstanding. If he really believes this is a tax he could have (should have) disposed of the issue by simply invoking the Anit-Injunction Act. But instead, he chose to invoke Twilight Zone rules and treat it as both so he could decide the issue on the merits. Curious, no?
As to whether or not the penalty for violating the individual mandate is in fact a tax, Justice Scalia’s dissent dispatched that quite nicely in a one short paragraph:
Dissent, pp. 18-19. (I omitted the citation, but nothing else.) Words have meaning.
It is clear to me that Roberts was desparate, for some reason, to uphold this law, and was happy to twist the Constitution and ignore the plain language of the statute to achieve that end. Yes, it is true that the Court should try to uphold laws if possible. But another fundamental principle of statutory construction is that the specific words of the law are not to be ignored, and that they should be given their customary meanings whenever possible. Roberts has followed neither rule. This is judicial sophistry of the highest order.
As to his flowery language about state sovereignty and the limits to the Commerce Clause, that’s all very nice but it is just dictum. It’s not central to the reasoning of the opinion, but rather mere judicial editorializing. It is not precedential and can, and will, be ignored by courts in the future which confront the issue of the limits of the Commerce Clause. Anyone who takes solace in those words is doomed to disappointment. Based on his performance here, I have absolutely no doubt that Roberts would support any future expansion of federal power on the basis of the Commerce Clause, and would cite Wickard v. Filburn with approval. The only positive aspect was invalidating the Medicaid expansion. That’s not nothing, but it’s perilously close to it.
This was not a difficult case. Throwing out the individual mandate (even if the rest of the law remained intact) should have been an easy call. This was not an exercise in judicial moderation, or reading the law in the most favorable constitutional light; it was an exercise in judicial abdication. Roberts has shown himself to be totally spineless.
Damn, I go away for two days and come back to a thread that takes over an hour to work through!
For the record, I think that Midwesterner’s take on this is completely wrong. Roberts’ opinion is illogical and internally inconsistent. He begins by stating that the individual mandate is not a tax for purposes of the Anti-Injunction Act (which prohibits challenging a tax before it has been assessed and paid). “The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate betreated as a tax for purposes of the Anti-Injunction Act.” Fine. But then he goes ahead and treats the penalty as a tax (despite the express language of the statute, as well as the consistent and vigorous denials that it is a tax by everyone connected with this Administration other than the Solicitor General) for purposes of upholding its constitutionality. I’m sorry, but it logically cannot be both in the same law, Roberts’ tortured logic notwithstanding. If he really believes this is a tax he could have (should have) disposed of the issue by simply invoking the Anit-Injunction Act. But instead, he chose to invoke Twilight Zone rules and treat it as both so he could decide the issue on the merits. Curious, no?
As to whether or not the penalty for violating the individual mandate is in fact a tax, Justice Scalia’s dissent dispatched that quite nicely in a one short paragraph:
Dissent, pp. 18-19. (I omitted the citation, but nothing else.) Words have meaning.
It is clear to me that Roberts was desparate, for some reason, to uphold this law, and was happy to twist the Constitution and ignore the plain language of the statute to achieve that end. Yes, it is true that the Court should try to uphold laws if possible. But another fundamental principle of statutory construction is that the specific words of the law are not to be ignored, and that they should be given their customary meanings whenever possible. Roberts has followed neither rule. This is judicial sophistry of the highest order.
As to his flowery language about state sovereignty and the limits to the Commerce Clause, that’s all very nice but it is just dictum. It’s not central to the reasoning of the opinion, but rather mere judicial editorializing. It is not precedential and can, and will, be ignored by courts in the future which confront the issue of the limits of the Commerce Clause. Anyone who takes solace in those words is doomed to disappointment. Based on his performance here, I have absolutely no doubt that Roberts would support any future expansion of federal power on the basis of the Commerce Clause, and would cite Wickard v. Filburn with approval. The only positive aspect was invalidating the Medicaid expansion. That’s not nothing, but it’s perilously close to it.
This was not a difficult case. Throwing out the individual mandate (even if the rest of the law remained intact) should have been an easy call. This was not an exercise in judicial moderation, or reading the law in the most favorable constitutional light; it was an exercise in judicial abdication. Roberts has shown himself to be totally spineless.
Sorry for the double post. My computer is acting funny (again). It couldn’t possibly be me!
I don’t claim to have the wisdom of a Supreme Court judge, but the penalty does not seem like a tax to me, it does indeed seem like a penalty. A tax is something which applies to everyone who does something deemed to be taxable. In Britain, there is even a tax on insurance contracts, surely one of the more anti-social taxes devised in recent years. My understanding of Obamacare is that it imposes on US citizens a legal obligation to buy health insurance, whether they want it or not, and if they fail to do so, they are subject to the penalty. It doesn’t sound like a tax to me, any more than I would think of a fine for a motoring offence as a tax. If I want to avoid the fine, I have to keep within the law, and it seems the same with regard to Obamacare.
It seems to me that the Supremes had to weasel around the provisions of Obamacare to redefine the penalty as a tax to make it constitutional. However, surely it’s not their job to redifine a law so as to make it constitutional, but to rule on whether the law they are presented with is constitutional. If Obamacare with the penalty is unconstitutional, then calling the penalty a tax should not make it so. The Supremes seem more concerned to uphold the wishes of President Obama than the long dead framers of the Constitution of the United States. I suppose they have worked out who is more likely to get to them, and it isn’t the Founding Fathers.
Alisa,
I did not mean for my link to be perceived as a retort to your post. I merely read both pieces and found Yoo’s argument substantially more persuasive. Your mileage may vary.
Midwesterner,
Who’s the shrill, shrieking, strident one? I’d take a look in the mirror. Nice use of a number of fallacious arguments. You set up Yoo as my ultimate authority on all legal matters, which he is not. I do find his piece persuasive while I find Barnett’s not so much. In the general scheme of things, I suspect my view of the world is much closer to Barnett’s than to Yoo’s, but not on this issue.
Take a deep breath, or even better, a swig of some fine whisky. Stop being so shrill – life is too short. It’s clear that most of the commenters on this thread are more in agreement with me than with you. That’s life. You made an argument, it failed to persuade, move on. No one’s perfect. Except for my dog.
Laird, et al,
Is the penalty on people who don’t take out a home mortgage a “tax”? I find nothing in the taxing power, certainly nothing in the additional powers granted by the 16th amendment, that distinguishes between the treatment of home mortgages as presently exercised and the ACA treatment of health care insurance.
Yes, there is a philosophical difference between first raising levies then selectively lowering them for people who engage in desired behavior and selectively raising levies for people who do not engage in the desired behavior, but the result is the same and the distinction is in no way addressed in the Constitution. The mortgage tax deduction is a penalty on people who don’t take out mortgages. This was a case weighing Constitutional taxing authority. There is no honest debate over whether the purpose of the mortgage tax “deduction” is to “encourage” people to take out mortgages.
I encourage people claiming that the Constitution disallows this to read starting at page 40 of Opinion of the Court. “A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation.” This is a 16th Amendment tax on 2.5% of income with a deduction for having a
home mortgagehealth insurance policy.Please please please, would all these people all over the blogosphere claiming that this is an extension of government power under the Constitution, please cite the language in the Constitution that makes the mortgage and insurance cases different.
All these people claiming the ignorance of Roberts (I am listening to a podcast discussion of the “tax” at this moment) need to explain the difference in Constitutional terms between these two financial incentives to buy products in the private marketplace. This is a Constitutional, not statutory case. The only applicable statutory issue that I recall off hand was the AIA and standing, which has nothing to do with the Constitutional merits of the tax.
Founder’s meanings, shmounder’s meanings. The 16th is a wide open license limited only by the definition of “income”. The “Founders” of the 16th Amendment were a bunch of Progressives. But last I looked, the 16th was part of the Constitution and I certainly do not want courts overturning Constitutional amendments.
Then there is Richard A. Epstein’s take, at
http://www.nytimes.com/2012/06/29/opinion/a-confused-opinion.html?_r=1
Yes, I read Richard Epstein’s confused opinion when it was first published.
From which all I can conclude from it is that Epstein believes that if telling people to take out mortgages is beyond the scope of the Commerce Clause, then the indirect route of using the tax levy should be off limits as well. Certainly for most renters, the penalty paid (deduction lost) for not having a qualifying mortgage is far greater than the penalty paid if they don’t insure their healthcare.
If Epstein in fact believes the mortgage deduction unConstitutional, then he owes us the honesty of admitting it outright. If he believes it to be a proper exercise of the taxing power, he needs to explain the difference in Constitutional terms. He hasn’t. One can only wonder whether he is playing partisan politics or instead that it is he, not Roberts, who has presented the confused opinion. Frankly, it is Epstein’s opinion that would by extension blow the hell out of the entire tax code. Not that I have any problem with that. 🙂
Just asking – is there any way to get rid of the 16th Amendment? Seems like that is a major source of your problems.
The more I think about this the more I find myself agreeing with Mid, but I am not as optimistic as he.
If I read things correctly, the use of the tax code for objects not properly within the ambit of Congress’s enumerated and implied powers was already established before this ruling, which fact occassioned the question being asked of the Supreme Court as another application to a new bill. All that Roberts’ decision did was bring that fact into public view. It did not expand a thing because the precident had been set long ago.
“Madam, we’ve already established that. Now we are haggling over the price.”
Principles can be neither established nor denied without consequence. Obamacare is a consequence.
No Constitution will ever save people from the consequences of their folly within their own minds, in institutions, and at the ballot box. The part about Roberts not *being* the grown-up and telling people to take responsibility for the consequences of their beliefs is correct. In effect, “The precidents had already been set and you went along with them, so now you can wear the results.”
An opportunity now exists to put the question of principles into the public centre-stage in a way that was not possible before. There is no doubt that the practical consequences of socialised healthcare will be disastrous. What remains to be seen is what these disasters will be viewed as being the consequence of. Potentially, the continued existence of 16A could now be in doubt, though maybe this is just wishful thinking.
There is a cartoon about likening this decision to the Trojan Horse. In actuality, who are the Greeks and who are the Trojans is not obvious.
Yeah, there is. We should give it the same treatment the 18th Amendment got.
Dream on, babe, dream on…. :>((
Midwesterner’s mortgage analogy is spot on, but there is one that seems even more relevant:
In the US, if your employer buys health insurance for you, that benefit is tax exempt; how is that different from taxing people whose employers do not buy health insurance?
Or let’s look at a hypothetical example: giving a tax break to people who buy broccoli is constitutional afaik, and how is that different from taxing people who do not buy broccoli?
Still, maybe this ruling should be considered the lesser evil rather than an unqualified good; a tactical retreat, rather than a major victory.
“the use of the tax code for objects not properly within the ambit of Congress’s enumerated and implied powers was already established before this ruling”
Instead of giving one more endorsement to this “established” bad precedent, the justices (Roberts) could have rejected it.
Mid’s claim that there was no other way that Roberts could have ruled isn’t plausible.
Even Mid’s example of the mortgage tax credit is tortured. A tax break forgone is not the same as a positive tax specifically imposed.
And the mortgage tax credit is is a bad law.
What, an Amendment to the Constitution? Do you even have a clue?
Quoting the ACA,
IOW, it is optional, the language that Scalia references doesn’t really mean what it says in light of these “special rules“. Yes, the text says “require“, but these “special rules“say that “notwithstanding” anything in this or any other law, in this case “require” is to be interpreted as “request“. Scalia ignored this part of the law. If one is going to accept some of Congress’s word games, one must accept all of them. Scalia selectively choose to ignore this one where it was inconvenient to his argument about the language that this part undoes.
There is also much talk in discussions of whether it is a tax because it would appear its intention is not to raise revenue, but to influence behavior. And yet the mortgage, in fact all other tax deductions, are not to raise revenue, they are to reward/punish behavior (except for a very few based on not double taxing). If one is to declare unConstitutional any taxing action that isn’t to raise revenue but is for purposes that would not be Constitutional if attempted under the CC and the N&P clauses, then virtually the entire tax code would have to be rejected as not within the tax authority. Perhaps true, but if so those making this argument need to state it that way. Imagine how many cases will be brought on the basis of an unConstitutional penalty by people not receiving some deduction or another.
Also, much is made that Congress does not allow the full panoply of possible tax enforcement tools to collect it. Are they prepared to require all tax levies for which collection tools are partially limited to qualify under Commerce or Necessary and Proper Clauses. This would apply not just against 16th Amendment taxes, but all levies of all kinds. I imagine another snow storm of suits for refunds against all kinds of federal taxes if that argument were upheld.
I wonder if all of the experts so quick to condemn the ruling that this is a tax have really thought about what other taxes and breaks would be disallowed if their arguments were accepted and applied uniformly.
Many if not most people are basing their attack on Roberts’ accurate reading of the law on their own intuition that “A tax break forgone is not the same as a positive tax specifically imposed.” How so? Do they really think that all new taxes have been imposed without any exemptions in them? Surprise, virtually all taxes are passed with cutouts in them in order to get enough votes for passage. The making of laws and sausage. Do people making this argument propose to go back through the sands of history and strike down all laws which enacted a new tax along with specifying cutouts. Are they prepared to argue how enacting a new tax with exemptions for privileged taxpayers who don’t have to pay it is Constitutionally different from enacting a new tax with exceptions for people who don’t have to pay it? And remember, tax exemptions could not be passed as stand alone legislation if the previous argument that tax laws without a revenue enhancing purpose violate the taxing power.
To sum up the problem, a law was passed in which a new tax was enacted and some taxpayers were exempted based either on their personal circumstances or their activity. Surprise people! That is how all new taxes have been passed. If the people arguing that Roberts “rewrote” the act to make it a Constitutional tax are in fact arguing that he should have struck it down on these various grounds, and they intend that all previous taxes passed that are not in conformity should be struck and resubmitted as separate legislation (if at all), then I to am all for Congressional gridlock, but you need to admit to this outcome.
Many people over the years have rejected my strong defense of constitutionalism and constitutional restraint of governments as a halcyon naïveté. It is not. I readily admit that constitutions can be bent to these awful purposes.
Personally, I am somewhere in the minarchist/ancap end of the spectrum. I support protecting constitutionalism as a system of government in our present circumstances because the only alternatives likely to replace it are rule by experts or rule by unlimited democracy. Two wolves and a lamb voting on a menu. Constitutionalism may be a flawed plan, but it is the least flawed plan available to our countries.
I oppose mortgage subsidies on philosophical grounds. Nonetheless, I see a difference between tax breaks on mortgages and a “tax” on non purchase of health insurance.
One can happily live one’s life without a mortgage, and one does not receive a tax demand or penalty notice from the federal government for having the temerity not to have a mortgage. The same used to be true with regard to health insurance. It was your business whether you had it or not, as befits a free citizen in a free country. But now, if you decide for whatever reason not to buy a product, health insurance, which you do not want, you will be hit with a fine, disguised as tax.
In Britain, if you drive a car you need to have motor insurance, it’s a legal requirement. If the police catch you driving without insurance, you don’t get taxed, you get a fine. You only get taxed when you buy the insurance, because that’s another area the government has decided to tax.
I think the difference between a tax and a penalty is pretty obvious. The framers of Obamacare called it a penalty, and for once they were right, but unconstitutional. It is not for the Supreme Court to decide the penalty is in fact a tax, just to make the law constitutional. I don’t mind politicians being corrupt weasels, that’s par for the course, but when the Supreme Court has a majority of similarly corrupt weasels, any notion that the USA is a constitutional republic is pretty much dead. 1776-2012, RIP.
Here’s my last posting (hopefully) on this thread since it appears that folks have made up their minds. I was going to pick up on Midwesterner’s challenge above, but time constraints preclude that. Fortunately, the WSJ has, more or less, summarized my thoughts regarding the tax situation.
http://online.wsj.com/article/SB10001424052702303561504577496603068605864.html?mod=WSJ_Opinion_LEADTop
BTW, Midwesterner, I would be happy to accept the effective destruction of the US tax code as it currently exists. It is an abomination.
Good question. The US government gives tax breaks for all kinds of behavior it wants to encourage: tax breaks for people with children, tax breaks for saving in an IRA, tax breaks for owning a tree farm. Now people get a tax break for buying health insurance. And you can thank the conservative Heritage Foundation for coming up with the idea.
Craig:
Because it was the event that caused me to give up my support for Heritage, it is interesting to note that it was the two U K expats working there at the time who developed the proposal.
Commentariat at Large:
Reviewing all the “reconstructions,” and replacements of “purpose” for “intent,” is there any dispute that “We The People” need to amend the U S Constitution to confirm the principles on which we wish our social order and the government it requires shall be based?
There is now no other way for what was once the liberty of the individual to be preserved from domination of the individual by the collective.
The last bridge has been taken.
RRS/Craig: what proposal?
“(A) WAIVER OF CRIMINAL PENALTIES.—In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
(ii) levy on any such property with respect to such failure.”
The congress went out of it’s way to emphasize, in the above words, that this is not a tax. A tax is never optional. A tax comes usually with penalties for failure to pay up.
So, this law doesn’t walk like a tax at all …
Do you really believe that a majority of US citizens want the country to go the direction you’re pointing to?
Sorry Midwestern – but if it is not the job of the Supreme Court to protect people (to protect liberty) from bad poltical moves then there is no point in haveing a Surpreme Court. The Constitution (dying for a very long time) is dead.
Grabbing hold of the word “political” is not going to change that.
Either government is limited in its spending or it is not.
The American Federal government clearly is NOT.
Craig:
“We The People” must choose and set that direction or it will be set for us toward ends and with means that will not conform to the principles of individual liberty compassed by the Constitution as written, but now altered in its effects.
Wherein have I “pointed to a direction,” other than to say that its selection should be made on the basis of the principles, freely chosen, not prescribed, to be confirmed?
Once again the PM Organization tags it.
From Montesquieu on, the dispersion of powers through the system of checks and balances, achieved at times by bloodshed and miseries, has proved essential to the existence of whatever form of Liberty is sought through representive forms of government.
The form of Liberty once sought here was to be achieved by checks on the powers of the legislative by the functions of the judicial.
There are balancing powers in the Executive and Legislative to the Judicial should the latter inhibit the functions of either of the former.
Had the statement been, “There are limits to the duty of the Court to protect the people from political choices …” that, if delineanted, might hold, but to deny the function that has stood for so long to preserve the system of checks and balances, crosses that far bridge toward the authoritarian state.
I understood your post to mean that you wanted the Constitution amended so that annoying laws like the Affordable Care Act would be unconstitutional. If you were someone with a chronic medical condition, you’d be well aware that before ACA, you couldn’t buy health insurance for a pre-existing condition unless your employer supplied the health insurance. Having health insurance tied to your job isn’t even stupid. If you have a health crisis, you can’t go to work, you lose your job, you lose your health insurance. Now you can’t pay your doctors.
Yes, Jacob. And they also with the above words, went out of their way to make it not a law. So if we are to take Scalia’s and other arguments that there has never before been a law to compel behavior, then it is pretty clear that, by the above words, there still isn’t. It is even more optional than many or most tax deductions. And how can you possibly say “A tax is never optional“? All taxes are optional too people who can keep their deductions greater than their liabilities. Paying $1000 a month to rent a house?.
From Wikipedia –
If that isn’t a penalty for renting, what is? Is not not far more important for a constitutional authority to attend to the governments deeds than the incantations it mutters while doing them?
What you are describing, Paul, is not a constitutional republic. What you are describing is a government not of laws, but of men. A government of expert grownups to attend to the needs of children.
In a constitutional republic, the job of the court is to referee constitutional conflicts according to the rules contained in that constitution, not to repair the flawed wishes of some party or other.
In Roe v Wade they did precisely what you ask of them. The imposed their judgement over the Constitutionally exercised will of the people. Wherever you stand on the abortion issue, without question that was one of the most divisive and destructive rulings in Court history.
RRS says we need to amend the Constitution to confirm our principles because the original Constitution has been “altered in its effects“. To which I append “by amendment“. I agree with RRS and think the first new amendment should repeal the 17th amendment* accompanied by the second new amendment which would repeal the 16th amendment**. By repealing the 17th amendment first, it allows state governments to return to the table since they will be the bodies charged with cleaning up the mess left by the functionally unlimited democracy the 16th and 17th amendment brought about. The Progressives put through those two amendments knowing what the consequences would be and we now need to undo that part of their agenda.
But in his belief that abandoning judicial legislating to repair bad legislation is a bad thing because it has become (de facto) a part of the checks and balances, there is great danger. Do we really want to discard the constraints of the Constitution every time we have a transient majority in order to fix the errors we perceive? The damage to the checks and balances occurred in the 16th and 17th amendments. One of them socialized all income and the other one removed the states’ government from their place in the system of checks and balances. There is a reason that international affairs, confirmation of ambassadors, federal judges, cabinet positions, etc are in the Senate. It is because under our system of federalism, the federal and international functions that were be removed from the states direct jurisdiction were being substantially placed under their control in the Senate.
These two amendments more than anything else in our history are paving the path towards one unified, socialized nation. They both must go if the Republic is to survive.
* I recommend the repealing amendment contain language that sitting Senators serve at the pleasure of their respective state legislatures, subject to replacement for the duration of their terms, after which time each new appointment would serve under the same terms as prior to the 17th. I recommend that the repealing amendment should contain language to prohibit popularity polls of the states’ voters for legislative rubber stamps. Senators are to represent the states’ governments. The states’ people are represented in the House. This balance is critical to protecting individual liberty.
** I recommend repealing the 16th amendment by reducing its share of federal tax revenue by 10% per year for ten consecutive years culminating in a complete repeal of the 16th amendment.
Employers get a tax deduction for buying health insurance for employees.
Giving individuals (which are not employed by a big company) the same tax breaks would be a tax incentive to buy insurance.
Many have proposed just that.
The mandate in the ACA and it’s conditional penalty are clearly not a tax, and not a tax incentive.
That is why this decision seem tortuous and dishonest and bad. One’s opinion about the desirability of the ACA as a whole is not relevant.
If the proposed law said that government taxes everybody, and buys insurance for everybody (like it already does with Medicare), that would have been clearly constitutional, despite being more socialist that the ACA law.
There is a tendency among the commentariat to impute an understanding of another’s post so as to set up a “strawman” or configure an argument that is not being made, but to which one may have conspicuous views.
To the extent that my posts are not concise enough to avoid those forms of response, I apologize.
My concern with the need for clarification of the Constitution has not to do with any specific piece of legislation or executive action, but rather with the departure from, or deformations of, prior principles.
I do not say we must “restore,” “return to,” or even “re-evaluate.” We must again decide, as was done originally, upon what principles the mechanisms of our governments shall be grounded and by whom and how what uses may be made of those mechanisms in order to preserve those principles for our social order.
Not my point at all. Experience has shown that the form of liberty desired through representative governance within any social order is determined by the dispersal of powers, and the principles by which that dispersal is determined.
We are at a point where those determinations must again be considered.
May I remind all that tomorrow is the anniverary of the date on which a sufficient consensus was reached by the social order as then constituted rejecting the principle of absolute legislative authority conducted in the name of a king (as the transmogrification of absolute monarchy).
It has not been fully rejected elsewhere.
The question is, are we returning to some degree of acceptance of that principle; or to acceptance of some degree of that principle?
I fail to see why, RRS. I don’t see anything wrong with the original principles. Granted, many Americans – possibly even a majority – disagree with me, but that doesn’t mean that I have to go along with their preferences.
If the consensus is to move away from the original principles, I’m more than willing to forgo consensus.
Alisa-
So too might I prefer, and for many, if not most, of which I would “evangelize” to those departed from the earlier faiths.
But it would be a mistake to seek only specific results limited to specific objectives by such an enterprise, or there will not be the cohesion necessary for a Rule of Law.
Our social order of today has been “shaped” by factors different from those that permitted the confirmation of the “original” principles, so that the understanding or comprehension of those “original” principles will need to be accepted again, as now understood, if they are to remain the viscera of our society.
Alisa –
Back around the time of “HillaryCare” the Heritage Foundation issued a Policy Report calling for Compulsory Health Insurance. That was the proposal, and I broke then because I don’r believe in “compulsory” anything.
I believe that the entire purpose of a government is to compel people to follow the rules that lead to an orderly society. My local cops compel me to drive on the right side of the road instead of the left. I guess we’re not going to see eye-to-eye on this.
Happy 4th, all.
This thread was very interesting so I came back to read the last few comments.
I doubt the local cops compel Craig to drive at all. On either side of the road.
But that led to thoughts about the mandate, costs, and rules.
If all roads were privately owned couldn’t owners dictate the traffic rules? I think they could. We live with a legal fiction that the government owns the roads and can therefore make the traffic rules.
That is the end of it for driving rules, when you are not on a road you need not obey traffic laws. But you do not escape the costs. Those you will pay anyway. Property taxes, sales taxes, all sorts of taxes are used to build and maintain roads. You can hardly deny that roads exist so you must pay some of the costs.
Regarding mandatory health insurance as a tax can (sort of) be advocated that way. You can hardly deny that a medical establishment exists so you must pay some of the costs. Not using it, not wanting it, doesn’t matter.
Don’t get me wrong. I stick with Jacob. Rewrite it. Courts are not obligated to uphold laws not understood.
Not understood by whom?
Thanks for reminding me what was the Heritage proposal about, RRS.
I still beg to differ (insofar as I understand your position correctly). I think that this is one of those cases where social cohesion is likely to follow the Law, and not the other way around. And it’s not as we have another alternative: what you seem to be suggesting is that we determine our preferred social order and its guiding principle through some kind of democratic process (or is there any other?). Do I need to explain why this is a bad idea?
‘guiding principles‘.
Craig posts:
(emphasis added)
You and I want to live in different worlds. “Orderly” societies exist amongst peoples who accept those necessary degrees of mutual cooperation and obligations. In your world are the constant issues of who decides on the form of order, on the the means of compulsion, the degrees of compulsion; and how compulsion is given effect. The history of Western Civilization is replete with efforts at emancipation from compulsions of all kinds.
The last major attempt at the “New order” was a disaster for us all – especially for those of us who fought against it in war.
Alsia-
Yes, we probably differ, but not as much as others (who must also be brought along) may differ with us.
My particular view on what constitutes Law, as distinct from legislation and other social rules, etc., requires that Law is established by the factors that lead to social cohesion. So, again we may differ, but I think not if we examine how Law comes into existence in all social orders.
RRS:
Emphasis on ‘is’, as opposed to ‘ought’. I think we all know what the Law is – the big question is what it ought to be. Or, firstly, what its purpose ought to be. My answer to that is that the purpose is certainly not social cohesion – although that would, in my view, become a desirable byproduct of my preferred kind of Law. To me, the main purpose is the limitation of coercive power individuals or groups can exercise over each other. Carts and horses and all that.
Well, I’ll grant that in certain settings a certain level of social cohesion can be conducive to liberty – but in others it can be an impediment, and I tend to think that the latter is more common where there’s too much of that (think tribal societies). Bottom line, if I had to choose, I’d take individualistic, even “atomized” society over a tribal one any time. I guess I’d liken social cohesion to sugar: less is more, and in any case its easier to add than to subtract…:-)
Here is what a declaration on independence might look like today.
I don’t think we want to try to write a new constitution today.
Giscard d’Estaing tried to write a new constitution for Europe a decade ago, he produced a 500 odd page document, but the French rejected it in a plebiscite because he forgot to include the right to a 4 day work week.
‘not understood by whom?’ Sharp question, Alisa.
Apparently not understood by anyone. Who called it a tax?
The SG said, if need be consider it a tax. It seems like you could call it that. But why should a judge agree? Lincoln addressed the question of a five-legged dog.
Roberts ruled that if the SG says something is a tax it must be a tax. And as Chief Justice I will find some way, any way, to agree.
My position: Congress levies taxes and did not say this was a tax. The SG is just a lawyer who will say anything.
It would have been entirely proper to toss the question back to Congress; say tax if you mean tax.
I predicted it would be upheld (goody for me) with Roberts the needed fifth vote. But my guess came from studying Roberts, not the case.
Right or wrong, to me he looked like a man of the Imperial System. Now at the top and unconcerned with anything but staying there.
Craig.
I do not want the Constitution “amended” I want it ENFORCED.
As for preexisting conditions.
Obamacare does not reduce the cost of treating them.
This and all other mandates have to be FINANCED.
“The insurance companies can do it – out of their profits”.
Sorry my dear by the profits will not cover it.
YOU will pay for this and all other mandates.
Till the whole thing goes backrupt – which will not take long.
The reason American health care is so expensive is two fold.
Government subsides, and government regulations (such as mandates).
And Obamacare increases BOTH.
Midwesterner.
“Want you want Paul is a government of men not of laws – not a Constitutional Republic”.
That is the exact opposite of what I want.
I want the Constitution enforced.
The specific spending powers of the Federal government are listed in Article One, Section Eight.
The “common defence and general welfare” is the PURPOSE of the specific powers.
There is no “catch all” general welfare spending power.
If there was then the list of specific spending powers would be pointless.
And, if anyone doubts this, there is the little thing called the “Tenth Amendment” to settle the issue.
It is DENYING all this that leads to an end of a Constitutional Republic.
For it means that a group of “men” (politicians) can spend money on anything they like – and as much as they like.
And that they can impose any economic regulations they like.
In reality the United States Constitution died in about 1935 – when the Supreme Court allowed the government to loot privately owned gold and to rip up contracts (both private and govenrment contracts).
But the Constitution of the United States has now been buried.
Now you have an end to a “Constitutional Republic”.
Now you have the “rule of men and not of laws”.
And – by what instruments do “men” rule?
By guns (or other weapons) RRS.
The idea that every raving of Congress is “law” makes a nonsense of the Consittition – for example the Ninth Amendment (the philosophical basis of the Consitutiton – i.e. that rights are NOT the creation of the government) and the Tenth Amendment (Congress may only tax, spend and regulate according to the powers given to it – there is not, British Parliament style, GENERAL power).
If the Congress can tax and spend on anything it considers for “the common defence and general welfare” (the PURPOSE of the specific powers given to it – not a catch all “general welfare spending power”) then the list of specific spending powers listed in Article One, Section Eight is meaningless – as the governmnent is NOT “limited” it can tax and spend on anything.
There is no point is writing a long list of spending powers and saying to the Congress “you can, if you wish, tax and spend on these things” if the Congress may also tax and spend ON ANYTHING IT FEELS LIKE.
That makes a nonsense of the list in Article One, Section Eitght.
And it also makes a nonsense of the Tenth Amendment.
It turns a LIMITED government into an UNLIMITED government.
And it turns “law” into “anything Congress WILLS”.
Unlimited power.
Congress (really the Executive – as members of Congress do not even READ, let alone write, these Bills) turned into a PARLIAMENT.
Blackstone – who the Founders all despised, has won.
In reality the United States Constitution died many decades ago (with such things as the 1935 judgements allowing the Feds to plunder privately owned gold and to retroactively rip up contracts – both private contracts and government contracts), but some ghost of it remained.
It does not remain now.
The Constitution is dead AND buried.
Only some STATE Contitutions (such as that of Texas or that of Alabama) actually limit what govenment may spend on.
There is NOW no limit on the FEDERAL government.
It is a monster – or mad dog.
And it should be treated as such.
Paul, one could argue (as so many are still doing) whether the ACA and the Court’s ruling are about taxes – but they (or at least their parts under this ongoing discussion) most certainly are not about spending.
As far as I am aware, the 16th was lawfully passed, and thus has since been as integral part of the Constitution as any other. The fact that you or I detest it, does not change that. One of the keys, if not the key, to the principle of the Rule of Law – as opposed to the Rule of Men – is that the Law is upheld by the courts whether men like it or not.
If the 16th stands in contradiction to the 10th – or for whatever other reason, including ‘we don’t like it’ – then it needs to be undone. There’s a clearly laid-out procedure for that, and it certainly does not include the courts.
Alisa,
The whole point of the 16th Amendment was to overcome the need to impose an income tax without apportionment. Specifically, it was a reaction to the SC’s ruling in Pollock. It was a technical update for one specific purpose.
How does the ACA’s tax/penalty relate to income? It doesn’t. It doesn’t measure income as set forth in the SC’s ruling in Glenshaw Glass. Stop pretending the 16th Amendment somehow supercedes the 10th. It doesn’t.
The fact that the 16th Amendment is being used to justify an unprecedented expansion of federal power is proof of the ongoing erosion of liberty and freedom by interpretation. If the law can be so malleable and so elastic that it can be stretched to justify anything (or almost anything), then the “rule of law” becomes a meaningless and empty phrase.
Final score in NFIB v. Sebelius: Statists 1 – Citizens 0
TK,
That may be how it was sold, but as these things go, they wrote it to do just a little bit more than it said in the sales brochure. The income tax levying power does not come under Art I restrictions as written. Since the legality of the tax is a rather hot topic, I am working on another article discussing the taxing structure as specified in the Constitution. Whether and when I will publish it, I am not certain. The real world interferes.
BTW, Glenshaw defines taxable income as “instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” The ACA tax clearly is applied only to income falling within the Glenshaw definition.
I surely don’t mean to prolong all this agony (which will likely continue and exacerbate if we don’t “start over” on a constitution) but the form of taxation (qua “Penalty”) specified in 5000A is a “Direct” tax (pace MW); despite MW’s contention that it is “conditioned” on income.
Now, of course there might be a way to do reach the objectives of the “mandate:”
Assess a tax on everyone.
Then create series of exemptions for various conditions plus “credits” for “balancing” unwanted impacts.
RRS,
It would be subject to the limitations placed on direct taxes if it was defined in Art I. But clearly with the 16th Amendment, a new taxing power was created that was additional to, not derivative from the Art I taxing power. When the Progressives created this new taxing power they did not place any restrictions on it except that it was placed on “income”. There are no Art I restrictions on the taxing power of the 16th Amendment. Sad but true. Because of this distinction between Art I taxes and 16th Amendment taxes, the SCOTUS has apparently chosen as a convenience the nomenclature of not labeling it a direct tax as that would thoroughly confound stare decisis. I’m not quite sure if I agree with that choice but it seems a reasonable workaround to the problems introduced by having two differing sets of restrictions on other wise similar taxes.
Midwesterner,
No, they did not write it to do more than sold. I agree it has been used subsequently to do more. That’s not the same thing, nor is it the salient point. As I noted previously, if the SC says something is constitutional, then by definition it is constitutional. That does not mean it expands liberty or limits government.
You wrote originally:
It is not clear and unequivocal that the ruling does anything of the kind. What limits did it set? To the extent that it set any, did it expand others at the same time? Is the net balance towards limit or to expansion?
It also is not clear that the four liberals who voted with Roberts concurred with everything he wrote. The Constitution might mean something to “this Court,” but what does it mean? If “this Court” can make the Constitution mean whatever it wants, what might subsequent Courts with a different composition do? Imagine a SC with Laurence Tribe and Erwin Chemerinsky in place of Thomas and Alito. Do you really think the Sebelius ruling is going to constrain their prog impulses? If so, then not only do I disagree with you, but I actually pity you.
Do you find the majority opinion more compelling than the dissenting one? (It is an interesting tidbit that they may have been authored by the same person, at least for the most part) I do not. Statism advanced and liberty receded. It may have happened constitutionally, but it happened.
BTW, the ACA tax is not applied to income, it is applied to inactivity. Do not claim it is equivalent to the mortgage deduction or something similar. It is not. As the WSJ noted:
the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don’t borrow to buy a home, you don’t get a mortgage interest deduction.
Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty.
This really will be my last post since the real world interferes for me as well. I suspect that we share to a great extent a similar normative political philosophy. I truly think you are engaged in wishful thinking, however, if you believe freedom didn’t take a punch to the gut with this ruling.
TK, with your totally counter-to-the-ruling cite of the Glenshaw case, it appears you are now into throwing bullshit at the wall to see if any of it sticks. Since you cited it without bothering to read it, I seriously doubt you have read NFIB v Sebelius because it is a resounding majority knockdown of both the Commerce Clause and the Necessary and Proper Clause.
Wrong yet again. And silly beside. It is applied to income for inactivity. I realize that distinction may confuse you but understanding it is elementary semantics. The 16th Amendment power to selectively tax anybody’s income for any reason (or even no reason) can only be ended by repeal unless, as is obviously your intent, we throw out the Constitution and ‘judge’ all decisions for ‘our’ side. Thomas More had the correct answer to that call.
Midwesterner,
I feel obliged to respond because you remain shrill and strident and wrong. You address not a single one of my points, shriek about my alleged ignorance, and incorrectly attribute to me intentions and beliefs that I do not hold nor have advocated. Talk about projection. It is you throwing bs against the wall, conflating issues, and making unsupported assertions. You are guilty of every sin you accuse me of committing. I realize it must be upsetting that your original post and subsequent comments have convinced very few of your position.
I have read Glenshaw and the Sebelius rulings as well as the dissent in Sebelius. I understand them, but apparently you don’t. Is there a majority knockdown of the Commerce and N&P Clauses? Do the other four justices concur on this point? It is not clear. Not at all. If you don’t understand why I say that, then I suspect you have not read the ruling, or at least not very closely. Look where Ginsburg, Breyer, at al. actually concur and where they do not.
I cite Glenshaw quite correctly. The main point of Glenshaw is that income taxes could be levied on “accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” Sebelius is not a simple application of that understanding. It is a significant expansion. The fine/penalty/tax imposed by the mandate does not target any accession to wealth or flow of income. It simply forces individuals to pay a penalty if they disobey the federal government’s regulatory requirement. The fact that low-income individuals are exempted does not change this analysis. A fine for littering on federal property would not become an income tax if low-income individuals were exempted from it.
You wrote:
Holy cr*p – are you kidding? The 16th Amendment does no such thing, or at least no serious person ever argued that. According to your theory, the Congress could do anything for any reason as long as it is a tax (or could be possibly construed as a tax) related to a seemingly perfectly elastic definition of income. Your own assertion refutes your entire original thesis, that the Sebelius ruling was a victory for limited government. If Congress effectively can do anything by virtue of the 16th Amendment, then what difference would it make if the Commerce and N&P Clauses aren’t infinitely malleable?
I note that you refused to answer my questions from my prior post, so I suspect you’ll not answer my questions in this post either. That’s fine. I’m not interested in reading anything else from you as your record suggests you offer no insight or knowledge, only superficial spite and pathetic critiques unrelated to what people actually write. I can see now a clear pattern in your comments that as soon as someone makes a legitimate point(s) that you can’t refute, you ignore the arguments and throw a tantrum.
You have tried to be clever, but ended up only proving you’re just not very smart.
Now that this thread is over, here comes a remarkably balanced and authoritative article that pretty much settles the issue in my mind:
http://washingtonexaminer.com/roberts-decision-didnt-open-floodgates-for-compulsion-through-taxation/article/2501386
“didn’t open floodgates” but din’t close them either.
A good summary indeed, Snorri. Very balanced, especially for someone who was party to the actual suit – but a bit less authoritative because of that. Here are the two points in the article on which I differ:
I could be very wrong on this and lawyers here may tell me so, but, by asking the Court to consider the tax option if all else fails, the Government essentially submitted to the Court two distinct laws: one where the individual mandate is a penalty, the other where it is a tax. So saying that the Court ‘rewrote the law’ is quite a bit of a stretch. The court did not give the law a “saving construction”, it came to the Court with the saving construction attached to it.
For the Nth time: the 16th clearly already gives the Congress that kind of power.
Alisa,
You are wrong about the 16th Amendment for the Nth time. Repeating a falsehood over and over does not make it true. The source of Congress’s taxing power is Article I, Section 8. The 16th Amendment merely took away the need for apportionment.
For what I believe is far better commentary on the ACA ruling, head over to volokh.com and read Ilya Somin’s pieces.
TK (if you are still there, this article has dropped of the front page),
Your characterization –
There is nothing in this amendment to suggest limits of the sort you surmise. The 16th Amendment postdates Article I by well over a century and it stands completely on its own text. Prior to Pollock, income was considered to be excise, ie “event” taxes. Pollock declared them to be direct taxes. If what you say about “one specific purpose” were true, the amendment would read:
Excise taxes being ‘event’ taxes, and receipt of income being an ‘event’, this would have been the perfect construction (and was the prior law) if the purpose of the amendment was as you surmise. This would have amounted to letting the Springer ruling stand. But the “excise” solution would have achieved exactly the punitive taxing power that you are now arguing is not present in the 16th amendment. In other words, you are attributing additional taxing limits to the 16th amendment that were not present prior to Pollock. But these limits you surmise are not present in the text.
Whether by duplicity, error, or intent, the 16th amendment creates a brand new tax limited only in that it must be levied on “income”. I dont think this is without some intent. This is a Progressive amendment to serve the progressive social engineering purpose. It needs to be repealed in toto all though that will need to be a phased process to prevent a complete economic collapse.