No, I don’t mean the US Supreme Court. The lads were doing their best. If they got a bit obsessed on the question of whether Obamacare was constitutional rather than whether it was a bad idea, you can’t really blame them. Obsessing on constitutionality is what they are paid for.
The court that is pre-eminent among the “many, many things in this so-termed civilization of ours which would be mightily improved by a once over lightly of the Hiroshima treatment”, as Robert Heinlein once put it, is Doncaster Crown Court, particularly when presided over by Judge Jacqueline Davies. It was she (styled ‘Her honour Judge Jacqueline Davies'”) who in November 2010 found against Paul Chambers in his appeal against conviction for “menace” for jokingly saying on Twitter that he was going to blow up an airport if it did not reopen quickly enough after being closed by snow. He did not say this to anyone at the airport, I remind you, he said it to the internet friend he was flying to meet. Then some security loser decided to reenact the story about the old woman who rings up the police to say her neighbour is standing naked at his window. If you recall, the cop asks sympathetically whether she is very shaken up. “Dreadfullly,” she says, “I was so shocked when I saw it, I nearly fell right off the stepladder.” Only this time the police thought the joke would end better with an arrest.
Supported by, among many others, the comedians Stephen Fry and Al Murray – good for them – Paul Chambers has appealed again and a High Court hearing was held yesterday. Judgement has been reserved for a later date. Now it is our turn on this side of the pond to get tense about a judicial decision affecting liberty.
Just warning you guys….
You’ve got a week and a bit to get your shit together, otherwise I’m going to be sure. From orbit.
If they got a bit obsessed on the question of whether Obamacare was constitutional rather than whether it was a bad idea, you can’t really blame them. Obsessing on constitutionality is what they are paid for.
Precisely. Courts have no business whatever ruling on the merits of legislation. Deciding whether something is a bad idea is what the legislature is paid for.
My word! I for one certainly can’t agree with Natalie. Doing so might be a threat in the US. Governments don’t like threats, except those they make.
I dislike the decision intensely but the tax power is a mighty tool. And the 16th Amendment is short.
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.”
See any limits? Only one. The definition of “income.” Words are plastic, today the definition is what Congress says it is.
You may disagree. I sense no restraints now.
The Constitution says that a tax is supposed to start in the House of Representatives.
I thought the the “Affordable Health Care Act” (an ironic title – considering all the cost INCREASING mandates and other regulatioins) was introduced in the Senate?
Also the word “tax” is not in the Statute – the word “penality” is (a punishment – not a revenue raising measure).
There is also the minor problem that the “general welfare spending power” DOES NOT ACTUALLY EXIST.
The words “common defence and general welfare” occur a the start of Article One, Section Eight (they are a repeat of the words at the start of the Constitution – preamble stuff) they are the OBJECTIVE of the SPECIFIC powers then listed.
The long list of specific spending powers would not be needed if there was a “general welfare spending power” (allowing the Congress to spend money on anything it felt like) – and no Founder (not even Hamilton) claimed there was a “general welfare spending power”.
On the contrary they said there was NOT – that was the difference between the British Parliament and the American Congress.
The British Parliament could spend money on anything – the American Congress could only spend money on the specific listed powers (that is at the heart of the idea of limited government).
To settle all doubt the Tenth Amendment was passed (as part of the Bill of Rights) – if there is a “general welfare spending power” the Tenth Amendment is meaningless.
“The Supreme Court is interested in whether Obamacare is Constitutional”.
No Natalie the majority were not – it was quite clear that John Roberts did not want a fight (any more than the Chief Justice in the 1930s wanted a fight) and if that meant using the Constitution as toilet paper that was what he was prepared to do (a good modern “Case Law” type lawyer).
In the Common Law way of dealing with a contract (or other legal document) one is guided by the text, in the Scots (or Roman) way of dealing with a contract (or other legal document) one is guided by what one can find out (by clear sources) of the intentions of the writers of the text.
Which method did John Roberts use?
NEITHER.
The Supreme Court (in the 20th century) NORMALLY uses NEITHER method.
They normally are not interested in either the text or the intentions of the writers.
Indeed Harvard Law School stopped teaching them (in Constitutional Law) almost a century ago. Switching to Case Law instead.
And the Supreme Court has followed the “Case Law” dodge (on most cases – not all) since the defeat of the “Four Horsemen” in the 1930s.
Well argued Paul. And loaded with facts. Thanks.
My focus is more upon what restrains Obama now.
Or worse, what might restrain Obama with a Democratic House should they win the next election.
The answers: either “not much” or “nothing at all”.
There’s also the problem that the reference is to “provide for the common Defence and general Welfare of the United States.” The States were sovereign and the Constitution was written to serve the needs of the State governments and not the “welfare” of individuals. This phrase has been twisted beyond all reason. The States had a direct relationship to the citizens. The national government did not.
Yeah, I know: 1861, 14th amendment, 17th amendment, incorporation doctrine, blah blah blah. It’s all crap because they left the rest of the document intact and the underlying framework of that document is one of sovereign states creating a government to resolve their disputes and harmonize their monetary, trade, and foreign policy.
Still, to us libertarians, this tells us how NOT to write a Constitution! Ideally, Congress would be a Federal Conference, perhaps rotated from state Capital to capital in order of joining the Union.
Still, if anyone is trying to make a new constitution, or planning a Libertarian alternative, this all gives us object lessons!
Regarding nukes- but what will happen to the innocent cockroaches? They won’t deserve it!!
And are you sure that it will work? Whatever doesn’t kill me makes me stronger- not necessarily true, but do you want to take the risk that some judges might acquire super-powers? You might get spiderman- or Sandman, his nemesis! Don’t take the risk!
I am reading some commentators such as Randy Barnett, one of the top legal scholars in the US – and a sound libertarian – say there is a silver lining here and some important lines in the sand have also been marked out.
Check this out(Link). I am not saying he is right, but it is worth examining what he has to say.
Here is Tim Sandefur.(Link)
I should add that it was noticeable how the US stock market was hit by this ruling; the gut response from investors is that the healthcare “reforms” will push up health costs, hit firms, and damage the earnings/competitiveness of US business.
The whole system is a mess; it is not, contrary to what some might think, a free market system.
If Romney had as sharp a mind as he likes to make out, the US should adopt the idea of individual medical accounts, to break the grip of insurers, to enable people to take their health packages with them from firm to firm and inject competition into the system. At the same time, no serious reform is going to work without breaking the monopoly exerted by the current medical profession and the licensing system that operates alongside it.
And meanwhile, the FDA, and its precautionary principle obsession, needs to be reined in to free up the market for producing medical treaments. (If that happened, it would be more credible to trim the patent system).
Johnathan Pearce wrote:
‘the US should adopt the idea of individual medical accounts, to break the grip of insurers, to enable people to take their health packages with them from firm to firm and inject competition into the system. At the same time, no serious reform is going to work without breaking the monopoly exerted by the current medical profession and the licensing system that operates alongside it.’
I respectfully disagree with various parts of this.
The grip of the insurers on the US healthcare system is as nothing compared to the overwhelming and stifling grip of the Federal government. The effect of the government is to drive up costs on both the private and the state sector, as well as to stifle competition in the private sector by a mass of regulation, much of it pointless as far as healthcare is concerned and mostly naked rent-seeking or vote-buying. If somebody will get the US government out of the business of providing and regulating healthcare, I’ll happily take my chances with the private insurers.
Regarding portability of insurance – again, the barriers to portability are set up by the state, not by the insurers. It is the Feds that force the Blues (and all the others) to operate as 50 little state-based operations. And it is the Federal tax code that maintains the asinine ties between health insurance and employment.
I understand your point about the monopoly of the medical profession(s), but don’t agree with it. The US has a large surplus of qualified medical professionals, so the monopoly which you (rightly) state exists in theory, does not exist in practice. One thing that is not a problem in the US system is finding a physician, there are plenty to choose from. Whether or not that physician will take you on as a patient is (more and more) governed by state interventions – the setting of Medicaid/Medicare reimbursements is the big issue here, but there are plenrty of other regulatory barriers that may stand between you and a willing physician – but none of those issues are drawbacks of the theoretical monopoly that licensed healthcare providers enjoy.
Obamacare should be clearly recognized for what it is, which is Phase 1. The purpose is to make private health insurance for the great majority of customers an unprofitable enterprise. Private health insurance will rapidly decay into a luxury available only to the wealthy minority, and millions of the least-resourced members of society will find themselves unable to get private insurance. This is the required groundwork for Phase 2, which is a single-payer health ‘insurance’ system, entirely controlled by the Feds.
All that being understood, understand then that this actually has nothing to do with the provision of healthcare – that is merely a convenient vehicle to set in place a wealth transfer system of unimaginably huge proportions, from the less-than 50% of US residents who pay any Federal income taxes at all to the more-than 50% of US residents who do not. The end-game here is nothing less than a permanent, systemic shift in US society, shifting the normative centre smoothly several notches towards socialism.
Expressed in the simplest of numbers, what this will do is (effectively) compel the transfer of between $5K and $10K of wealth per family, per annum, from taxpayers to non-taxpayers. In a matter of 5 to 10 years, dependence upon this transfer of wealth by its recipients will have become so complete that it will be politically impossible to undo. The Democrats will then become the party that wants to increase the amount of the transfer, while the Republicans will become the party that wants to keep it the same as it is. A useful side-benefit will be the creation of an unimaginably-vast bureaucracy, staffed by (literally) millions of unproductive drones, each and every one of which can be reliably counted upon to vote for whoever promises more of the same.
And after a few years, when the system has completely entrenched itself in the political life of the nation, the actual healthcare aspects will become more-or-less irrelevant. If people die waiting for trivial medical procedures, or the elderly waste away in ignored indignity, or citizens are denied healthcare because of their life choices, or their political opinions, the answer will be – well, we obviously need more of this system! And the normal, expected forces that apply in any government enterprise will take effect here as well – the whole system will gradually invert, as the healthcare parts are allowed to atrophy in favour of continual expansion of the bureaucracy. As a further, added bonus, this system will allow for the most draconian regulation of a whole range of personal liberties, all in the name of ‘reducing healthcare costs’. If you think Mayor Bloomberg is over-reaching today, just wait. From soda to skydiving, all will be taxed – not banned, mind you, that would be un-Constitutional! – merely taxed, and taxed heavily, in the name of ‘recovering the costs to society’, but in reality creating and enforcing further transfers of wealth – as well as creating yet-larger armies of bureaucrats to enforce it all.
That’s the end-game that’s being played for, and the inevitable end result it will lead to. Don’t ever think it isn’t. How do I know this?
Because it’s already been tried. It’s called the NHS. I’m sure you’re familiar with it.
One person in 37 in the UK works for the NHS – not one working adult in 37, but one in 37 of every man, woman and child in the country. And each and every one of those one in 37 is going to vote in his or her own interest. It’s a politicians’ dream – regardless of party. And that’s the final goal for which Obamacare is just the first step.
llater,
llamas
There is all sorts off opportunity for fun here …
Welp … I guess we Americans can tax anything we don’t like now.
How to tax-punish hippies ….
Tax not owning a carry permit.
Tax not driving a car
Tax not eating red meat once a week
Tax not eating bacon
I wonder what else we can tax hippies for not doing?
“If you think health care is expensive now, wait until you see what it costs when it’s free.”
P. J. O’Rourke
“This tells us how not to write a Constitution”.
Errr – if judges ignore the TEXT (as well as the intentions of the writers) then it hardly matters what the the Constitution says.
The “common defence and general welfare” is the PURPOSE of the list of spending powers that follow it.
To pretend that there is a “general welfare spending power” makes a nonsense of the list – and of the Tenth Amendent.
No need to go into Scots (Roman) law method of checking intentions, – although that can be done if people want to (there is a vast amount of published material).
But let us say we IGNORE all the above.
Look at the text of the STATUTE.
Where is the word “tax”?
It is not there.
Indeed all the writers FORMALLY DENIED there was a tax in the STATUTE.
So Chief Justice John Roberts MADE IT UP.
He “interpreted it” into existance.
The non-lawyer word for this is LYING.
He LIED.
Now if you have judges who are prepared to LIE, what does it freaking well matter what you write in a Constitution or in a statute?
“Silver lineing”.
Let me guess…..
That the States will not be forced to expand Medicaid spending?
Quite true – and besides the point.
Obamacare is quite enough to force more and more companies to stop offering health cover, and to price health insurance out of the range of indiviudals (apart from the very rich).
Instead companies will pay a penality (sorry a tax) – and the government (via crony capitalist “private providers” AT FIRST) will take control of health care.
Under Obamacare the end result will be a smaller percentage of people with real private health cover than there are in Britain.
Because private health insurance (real private health insurance) will be made so expenisve that only the very rich will be able to avoid it – and they prefer to pay per-treatment anyway.
The only REAL silver lineing is that whole system (the economic system) is going bankrupt. With or withing Obamacare – Obamacare will just mean it happens more quickly.
We do not really have to worry about the long term.
Because things will fall apart over the next few years.
Starting in 2013.
Paul: Thanks for your informative comments. A lot of the information in the first one is new to me, and as for the second, you’re making a point I’ve been yelping about for years: The Constitution is a piece of paper. It prevents nothing, no overreach, no corruption, no crime. It’s only everyone’s deep commitment to understanding it and to FOLLOWING IT, insofar as the intent is clear from the text (which, really, it mostly is) that can do that.
Thus, Randy Barnett has made the point that nothing but understanding, common sense, and commitment actually prevents the Supreme Court (and the other branches) from doing exactly as they please. (Which is how we reached the point where Federal statutes are PRESUMED LEGITIMATE by SCOTUS–this is the doctrine of the Presumption of Constitutionality–so that the burden of proof is always on the complainant, where Federal law is concerned, and out of which has grown the stupid Rational Basis test; Prof. Barnett traces this trend clear back to 1931)*. He wants to see an Amendment that would make a structural change to government, thereby forcing Constitutional compliance.
For a very good article on this, see his “The Power of Presumptions” at
http://www.randybarnett.com/17harv613.htm
Personally, I don’t see how that’s to be done. The Framers hoped that Separation of Powers and Checks and Balances would do it, but obviously….
Also, what rfichoke said. 🙂
Finally, not to change the subject, but I absolutely agree with seo about the look and layout of the site. I know different people are different, but Samizdata is the easiest on my eyes of any website I’ve ever seen. And I love the simplicity of it. (I just wish we could pull up the archives by month.) Great job, Mr. Designer! :-)))
Paul and Julie: if you haven’t seen it yet, please read this.
Alisa, interesting discussion–thanks for pointing it out.
I remain unconvinced. The minute J. Roberts said “it’s a tax, not a penalty” he LITERALLY rewrote the law.
But I will see what Profs. Barnett and Epstein have to say–they being the two law profs worth hearing, IMO. 🙂
One other thing, more in line with the discussion in the next posting: I’ve come to believe that this theory “if you don’t like the laws that are being made, vote the bustards out” isn’t very comforting in the real world, since (among many other reasons) one of the major parties–not to name names of course–has no problem in rigging and stealing elections; even to the point of trying to block attempts to keep non-citizens from voting.
Julie,
Roberts’ opinion explains a clear and simple dichotomy. For matters that fall within the Legislative purview, the Legislature’s intentions are controlling. Roberts explains that since the Anti-Injunction Act is the creation of the Legislature, the ACA “it’s not a tax” claim controls the application of the AIA. However, when the Constitutionally of an act is what is being determined, the definition of “tax” is controlled by the Constitution, not by the Legislature. And that should be no surprise, it has been commonly accepted since it was railroaded through that this is a tax in all but name. Roberts is declaring that the Constitution cannot be rewritten by changing the meaning of words like “tax”.
He did not rewrite the law. He used the Legislature’s prescribed definition and treatment of “taxes” where their statutes were the applicable law, he used the Constitutions prescribed definition and treatment of taxes where the Constitution is the applicable law.
That is from the syllabus, there is more detail down in the actual opinion. This is appropriate, restrained and correct jurisprudence. Unless/until we repeal the 16th, taxes can be used for almost any darn thing as long as the money comes from incomes and goes to the Treasury.
As to your second point on elections, Wisconsin dealt with that problem in the face of some of the most extreme histrionics, threats and dubious voting practices in certain Democrat precincts imaginable. At this point I believe that the SC of Wisconsin election was saved by a Republican clerk holding back election returns until after the last Democrat district reported. Amazing how the most thoroughly Democrat strongholds always report their counts last and always find just enough votes to squeak out a win. Sometimes even more votes than eligible voters. Hhmmm . . .
Mid,
You write,
To which point the proper response was, “If the payment is a tax, then the statute must so state. If it is not a tax, then it is unConstitutional. Either way, the Act as written is unacceptable under the Constitution.”
(He might have added, “Labels ARE important–very important–because they are the elements reason uses to signify meanings, according to which it establishes its conclusions. That is why we must insist upon using the label which correctly identifies our actual meaning; and that is why calling the thing a ‘penalty,’ instead of the tax that it really is, is not acceptable.”)
As for Wisconsin’s great win, it’s nice to know that once in awhile somebody CAN beat the odds! (It was only possible on account of my couple of donations smuggled out-of-state to the Governor’s campaign, of course. And it was from YOUR posting here that I first found about the “recall election.”) –If it was because of a truly courageous Republican clerk, it goes to show how the actions of a single person can have a huge, even a finally determining, effect on the outcome. Bravo, Clerk–and, On, Wisconsin!
Oh dear. You are going to trust congresscritters with defining the meaning of the words used in the Constitution? Words don’t change the true nature of the enactments. It is levied on income, it is conditioned on having income, and it is calculated as a percentage of income. By all definitions except Pelosi, et al, it is a tax. Roberts discussed at some length how the legislatures definitions control for legislative acts (like the AIA) and the Constitution’s framers definitions control for purposes of applying the Constitution. Quoting the decision –
If the Congress decided to ban flotulators and defined them as any projectile-firing hardware but declared vehemently that it wasn’t a gun ban, just a flotulator ban, would you accept their claim that it wasn’t really a gun ban? The Court (thankfully) looked at the actually substance of what they were doing, not the label they pasted on the outside. The lawyer for the gov requested the court look at it as a tax if it flunked the other tests so that is what they had to do.
I’ve long held the opinion that anybody who will lie for me will lie to me, anybody who will steal for me will steal from me, etc. While I really want this terrible law (done in the fine tradition of Social Security, Medicare, etc) to be struck from the books, I am relieved that the Court did not play tricks to take it down.
Roberts nailed the problem that must be solved. “It is not our job to protect the people from the consequences of their political choices.” If SCOTUS doing this properly, instead of resorting court rulings handed out like political spoils, drives people out to vote this fall, the more’s the better!!
I can only reiterate. The Gov was trying to eat its cake and have it too, and that is what Roberts should not have permitted. To say the same thing again: The proper response was:
“You insist that this so-called penalty is not a tax. Very well then; if so, it is unConstitutional. It would not be unConstitutional, however, if it were a tax–the definition of which in fact it meets. However, in that case the statute would have to state that it is a tax, rather than a penalty.
“As it is, the statue is unConstitutional whether the payment is a penalty or a tax.”
So you would go along with a ban on flotulators if they say it isn’t a gun ban?
In Court, where it mattered, the government did call it a tax. The Court had to consider it as a tax once that argument was presented. You are equating the lies told to the public with the arguments presented in court. I really really don’t want the courts to interject themselves into political speech and attempt to enforce statues according to the promises made in the sales pitch. I want courts to confine themselves to the questions presented to them.
When I hear all these protestations that the court should do something because “they said it wasn’t a tax” they ring in my ears with the same timbre as “but Momma, he said he loved me.”
There is an election this fall. The Senate is up for grabs. That is the time and place to permanently undo this mess. If we (the small government Tea Party faction) can’t win that election, then nothing in this decision makes any long term difference. If we do win it, then nothing in this decision matters except that it provides very solid groundwork to roll back the Commerce Clause and the Necessary and Proper Clause.
For two people who basically see the situation the same, you and I are sure managing to disagree! :>)
Of COURSE I wouldn’t go along with a ban on “flotulators”-really-meaning-guns! That’s my POINT! Roberts should tell the Gov that the law is unConstitutional because the statute is DISHONEST–it substitutes an acceptable restriction (assuming it’s Constitutional to restrict flotulators) for an unacceptable one.
I wrote elsewhere:
I guess we’re going to have to agree to disagree, Mid. I keep saying the same thing and so do you, and we’re not reaching each other–odd since we’re in AGREEMENT that it (apparently) quacks like a duck and therefore is (presumably) a duck; the disagreement is that I think the Supremes are not empowered to edit the Gov’s mistaken dictum so that it will work. NO–the correct thing is to require the Gov to take down the signing labelling the creature a fluffy poodle (and if they wish to redo their signage of course they’re at liberty to try).
Statutes don’t represent themselves. Politicians represent them. The problem Julie is (brace yourself) the government lied. I know, I know they are well meaning public servants, but in this case they lied. They told us it isn’t a tax but they whispered to the Court that it really is. I recall even at the time they were ramming it through passage with sharp pointy objects hearing that “it really is a tax” was always their backup plan. ‘Turned out it was.
I’m a little surprised because I’d thought you would agree with me, but I really don’t want courts trying to achieve the claims that politicians make when they pass laws. I want courts to confine themselves very narrowly to questions of law, whether Constitutional or statutory law and give specific provisions an up or down vote based on questions of law, not “but he said/but she said“. The question of whether those provisions must match what the politicians claimed during their perennial campaign speeches is a question not for the courts, but for the ballot box this November.
I’ve been completely unable to find anything in the Constitution that distinguishes between using tax exposure to encourage people to take out mortgages and using tax exposure to encourage people to take out insurance policies. I’ve looked, and I can find nothing in the Constitution to distinguish the two cases. Like or not, the frickin tax is Constitutional unless we want to strike down the mortgage deduction in the same decision. This really is a question for the voters.
But that’s exactly, precisely what Roberts did! The pols in question claimed the statute is Constitutional; Roberts REWROTE IT so that it would be. (I think it’s questionable even so, but that’s a different point from what we’re discussing here.)
Yes. I can’t see how in RE-WRITING the Act Roberts confined the Court to the question of law. He’s supposed to be ruling on the law the plaintiff addresses, not some version of it that its writers have already disowned loudly.
You want the Court to avoid ruling on the basis of “but he said/but she said”–or so I understand you to mean. However, if Roberts had said, “This thing is a duck, yet it purports to be a poodle. That won’t work. Make up your mind which it is, and then when you’ve fixed it, maybe it will be Constitutional”–if Roberts had said that, he would have avoided any question of “he said/she said.”