You know, I think I may have set a land-speed record moving through the five stages of grief on this Obamacare thing.
As I understand it, Chief Justice Roberts held that the mandate was in fact constitutional because it’s a TAX, not a PENALTY. When it comes down to it, I have to agree 100% that Congress surely has the power to levy a tax on the American people, and as such was clearly within their rights to do so in this case.
Also, given that they have the right to absolve people of a tax burden, they’re entitled to do so in this case when someone has purchased health insurance. After all, if I donate money to a charity, I get a tax break. If I pay taxes and interest on my home mortgage, I get a tax break. If I have a kid, I get a tax break. So this is really just like that: EVERYBODY in the country gets a higher tax. If you have health insurance, you get a tax break. QED.
Although I disagree with the first step in the process (it is in my opinion, a penalty which is beyond Congress’ authority), I can’t argue with that logic at least.
That said, I do have a problem with how we got here:
1) I totally disagree with Chief Justice Roberts’ conclusion that the mandate is a tax. I’m not a lawyer (let alone a judge, let alone a Supreme Court Justice), so I’ll defer to the dissent, ably written by Justice Scalia. In it he basically picks apart quite systematically why the mandate was deliberately written as a fee, not a tax. I’m not sure why Chief Justice Roberts chose to see it the other way. That said,
2) This law would never have passed if it had been called what it is. The HHS secretary, the OMB director, Nancy Pelosi, Harry Reid, even the president himself purposefully and knowingly misled us by saying (as the latter did in an interview with George Stephanopoulos) that it wasn’t a tax. That’s because they know it would never have passed if they’d been honest about it. Then they went to court and argued that it was a tax. In order to rule this way, the Supreme Court had to conclude exactly the opposite of what was sold to the American voters when this was passed. Supporters of the law will be glad to have been vindicated. But in reality, it’s that we’ve been played. This is the country we live in.
3) This is just another example of (ab)using the tax code to drive social policy. Taxes should be used to raise funds in order to accomplish the absolutely necessary functions of a government. Just like “sin taxes” on cigarettes and sugary food, just like deductions for home ownership and raising a family (and getting married), now we have yet another pernicious way in which our government is trying to manipulate our actions and how we live our lives by using its power to tax to influence and control us and let those it favors off the hook. This is not fair, it is not just. It is wrong. And this is the country we live in.
Bright sides:
1) I think this seals Obama’s fate this fall. I am awaiting (it likely won’t take as long as it takes me to finish writing this) the RNC’s ad repeating Obama and his supporters over and over that this is not a tax, then pointing directly to the Supreme Court’s ruling that the only way for it to be constitutional is for it to be a tax. And whoa, Nellie…what a tax it is! (Thousands of dollars a year for some!) November 2010 was an excellent case study in what happens when Americans realize the huge mistake they made during the most previous election. I think the winds just changed. And got stronger. This law is already highly unpopular. I think its unpopularity has been tempered by the feeling of the inevitability of its demise…we didn’t really have to—as Ms. Pelosi suggested—read it yet, because SCOTUS was going to scuttle it before it affected us. Now the framing of the argument is perfect, and its popularity is going to sink even more when people realize a) that it’s a huge tax increase, and b) that it was passed only because those who knew that all along were purposely lying about that fact. Hell. To. Pay. (And not from people like me who were opposed to it all along.)
2) Along those lines, I have never been a fan of courts intervening when we, the electorate, make mistakes in our policy decisions. Regardless of the constitutionality of the law, what it is is un-American. I don’t mean unpatriotic or anti-American. And I don’t mean that those who support it are either of those. What I mean that this law runs counter to what makes our Nation great: Individuals making their own decisions about their lives, and a government that is directed in its actions by us, not the other way around. Ultimately I’d much rather live in a country where the electorate politically and decisively throws out politicians who put together such monstrosities that are so counter to what we prize as a People and replace them with those who are more respectful of our wishes and our liberties (c.f., November 2010), than one that relies on nine dudes in black robes to ‘save us from ourselves.’ If we are to be a self-defined and self-sufficient Nation, we need to take active and positive roles in making sure our representatives in government truly are representative. Ultimately, I find greatest strength in a quote from Chief Justice Roberts’ own opinion today upholding this law: “It is not our job to protect the people from the consequences of their political choices.” Indeed.
3) Obscurely (and sadly so), the majority opinion did do something that should have been done long ago…it reigned in Congress’ powers under the Commerce Clause. In order to allow this to stand, the majority had to see the penalty as a tax (again, I disagree). That’s because they directly and specifically rejected the suggestion that under the Commerce Clause the Congress has the right to force us to engage in commerce. That the Administration had argued that in the first place (and, famously, Nancy Pelosi found the entire course of questioning un“serious”) is disheartening. But that the Supreme Court recognized that was a bridge too far may at least begin to chip away at the tremendously overbearing role the federal government plays in our lives under that mistakenly expansive authority.
Bottom line: Between now and November, get used to hearing that Elections Matter.
– Nick (ColoradoPatriot, from HHQ)
From the decision, I hate the courts even more. This decision did a number of bad things and a number of good things. It is horrible because it exchanges bad for good and good for bad.
Bad Things.
1. Decided to find the Constitutional parts and made it fit. Why not just judge the law as written and not make up for its deficiency?
2. Roberts sided with Liberal members unlike Kennedy. Great turn of events. Now, Roberts and Kennedy are both unreliable and possibly Liberal, while the Liberal members do as they wish consistently.
3. Now Taxes can be abused to do anything. Previously it was the Commerce Clause.
4. Romney was the architect of the mandate. Can we trust him to repeal it?
Good
1. Limited Commerce Clause, but now Taxes can do everything evil.
2. Obamacare was about Taxes. Nobody wants taxes. Thankfully, Obama’s reelection got harder.
Nick, I couldn’t disagree more.
First, and as you agree, the law’s framers explicitly disclaimed it being a tax. Roberts has invented rationale for the law that its legislators never intended nor wanted. If that isn’t a Justice usurping the legislative power, what is?
Second, using Roberts’ theory, the government can now tell its citizens to do absolutely anything… and, if they just put a fine or fee on non-compliance, then they can call it a tax.
The federal government wants to you eat more broccoli (or have less gay sex for that matter)? Just put a fine on non-compliant citizens and call it “our constitutional power to tax”. A scotusblog reader of Roberts’ decision says that Roberts put forward NO limiting theory for the power.
That’s a rationalization, not a rationale.
The government does not fine you for your failure to give to charity.
The government does not fine you for your failure to own a home.
Oh, yes it is… when those political choices violate the Constitution of the United States. Most certainly it is.
But again, they’re not.
If they were, here is what it would look like: they levy a general tax on Americans – like, say, an income tax – and they carve out a deduction for money spent on X.
What they did instead was: (1) vehemently disclaim any and all intention of levying a tax on Americans; (2) create an explicit fee (or fine or penalty) for Americans who fail to follow marching orders.
There is a line between subsidizing something via tax exemption, and conscription. They crossed it.
While Obama claimed it wasn’t a tax, when the Obama Administration lawyers defended the ACA before the High Court they explicitly and openly proposed that the Mandate was constitutional as it was in-fact …if not in name…a tax. Roberts didn’t invent the penalty-actually-is-a-tax argument from whole-cloth, he and the Majority just affirmed the rationale-presented.
Ted, fair point… and… that argument was *not* in play at the time Congress created, and voted on, the law in question. In fact they were rejecting it as much as they possibly could.
Just because the Executive teleprompted Roberts to usurp the Legislative power in this case, does not make Roberts right to have done so.
I have read enough comments that I am not confident the Federal Government’s use of the Commerce Clause has been reined in.
That said I do think the fact that it is a tax and one where the burden falls most on the shoulders of the working poor is something that can be used to beat Obama and democrats over the head come the fall.
My biggest concern is that congress seems to have been given its ticket to impose its will on states-through the tax code, but the one positive is that while many Americans don’t understand or care about the Commerce Clause-they do recognize and care about taxes. While I think congress can use their new tax powers to compell behavior, not sure the electorate will stand for it.
John Roberts told the Senate confirmation committee overweening his nomination that a supreme court judge is an umpire, not a player. He noted that no one goes to a baseball game to watch the umpire.
What Roberts has done is, in a sense, quite remarkable. He has found the Constitutional grounds to uphold Obamacare, in spite of the ham handed way the Obama team presented their case before the SCOTUS.
He killed the Commerce Clause mandate concept.
Whether or not Roberts is actually fooling around with the “judicial review” concept invented in the Marshall court, he has certainly ignored the Marshall court’s admonition that “the power to tax is the power to destroy”.
I wonder if Roberts has not just turned the tables on the liberals by giving them the sufficient amount of rope to hang themselves.
Obamacare is rotten law that was enacted through chicanery. Roberts and the court were not asked to rule on anything relating to the content of Obamacare or how it came to be.
In essence, Roberts is the liberal’s ideal of “no judicial activism.” He has found that the Constitution permits Obamacare if it is a tax. The largest tax in the history of anything. That is not his concern. That is a pox on those who enacted the tax.
His work is completed. Now the people have to decide.
That is best addressed by the election of the entire House of Representatives, one-third of the Senate and the President of the United State in November of 2012.
Roberts put the Commerce Clause mandate concept back several notches. (More needs to be done.) But he handed Obama and the Progressives the power to destroy the United States through taxation.
The question now is whether the Progressives have the testicular fortitude to wage a tax war on the middle class. After all, it is the middle class that churns the economy and is the bedrock for paying the bills.
As the famous Reverend Wright would say: America, your chickens are coming home to roost.
Personally, I don’t think class warfare against the middle class is much of a starter.
Class warfare against the middle class isn’t much of a starter if the middleclass knows about it ahead of time. Seems to me that the pro Obama care people are mostly pubilc/private union emplyees, medicade/medicare recipients who have not yet seen the rising costs that those of us who are actually paying out of pocket for our insurance have. They basically think they are getting more for nothing.
Right. How has Roberts not given the political class (be it presently dominated by liberals or conservatives) a new, heretofore undreamed-of way to justify cramming any and every mandate they want down the throats of the American people? What limitations has he put on his novel theory that mandates which command Americans to pay money to private parties can be justified under the Constitution’s taxing power, provided they contain a penalty paid to the government? How has Roberts not just given us a British-style “democratically elected dictatorship”, where the elected government can enact any economic or behavioral command it wants? Do we still have property rights, or voluntary contract rights, in any meaningful sense? I’m all ears.
ILC,
The power to tax is the power to destroy. (John Marshall.)
The Obamanauts have raided and cleaned out the treasury. They have cranked up the printing presses through “quantitative easing” (read: unquantified fiat currency). Now they have imposed the biggest tax in the history of the world.
Roberts pushed the tax into the daylight. It is now inescapable that a skunk by any other name still smells the same.
Obama is the biggest deficit spender in our history, he has imposed the biggest tax in our history and the economy is circling the drain. You can not find a safe place to park your money. Soon enough government bonds, useless as they are, will be the only thing paying enough interest to help you stem your personal financial erosion to inflation and the devaluation of the dollar.
Those are all reality. We still have the FED and Bernanke. We still have record unemployment. We still have rapidly mounting inflation that is clear at the grocery store, but lied about in government “statistics”. We still have Dodd-Frank and the not yet fully-collapsed Freddie/Fannie/derivatives fiasco. We stiff have the enormous stimulus that was paid to cronies, unions, and in-siders. We still have Goldman Sachs as preferred hiding place for crooks and liars manipulating the “investment potential” of government pie-in-the-sky social engineering. We still have the socialist/Marxist (fascist-like) Progressives with their boy king. We still have a Congress of both Democrats and Republicans who pander and spend their way to the Orrin Hatch/Chuckie Schumer level of permanent fiscal insanity.
All of this the TEA Party understands. All of this the conservatives, the moderates, the independents need to open their eyes to and to vow to take action to correct.
Roberts did not vote down Obamacare. He turned our representative democracy back on us. He could have helped in winning the battle, but instead, he gave us a wake-up call about the war we have been steadily losing.
Now everything Congress wants to do can be done by issuing a tax, if they have the courage to do it. Now, we have reached the moment when we may lose the republic, because we couldn’t keep it.
It had to come to a head sooner or later. Roberts made it sooner.
ILC,
To your important point, the WSJ wrote this: “But this and even the five votes limiting Congress under the Commerce Clause pale against the Chief Justice’s infinitely elastic and dangerous interpretation of the taxing power.”
The game is afoot. Congress can mandate away if they call it a tax or if the court sees what Congress has done as actually being a tax, no matter what Congress may have called it. A tax is a tax is a tax.
Pelosi said we would have to wait to see what is in the bill until after the bill was passed. Roberts looked and saw a tax.
Now what do WE do? Rely on the SCOTUS or keep this kind of crap from oozing out of Congress?
I see your point. Back on mine: if the Supreme Court isn’t going to exercise a veto power to defend the Constitution – as what the Constitution is meant to be: an embodiment of limited government – then what is the Supreme Court good for?
I’m reading reports now that Roberts did it because he wants the goodwill of the political class (of which he may well be part). The reports are phrased as Roberts thinking about the Court’s “reputation” or “credibility” or something… exactly what an honest justice should *not* think about.
The U.S. is faced with a funding crisis. Roberts just handed Congress a basis to mandate that people buy U.S. Treasury bonds, potentially a great help when the crisis gets here. The political class knows it and loves it. The media, ever the servants of the political class, are trying to pay Roberts off with their praise, and (flattering themselves), are further implying that his motive was to earn their praise. I suspect that Roberts’ real motive was to get a decision that seems to restrain the Commerce clause… but what a price for it! Big mistake!
I consider government bonds a guaranteed loser at this point: Guaranteed to lose more and more of your purchasing power to future money-printing, i.e. inflation. The world has been buying them, driving their prices up. The world is not very smart. Or maybe it is, because, again, Congress just gained the power to mandate mass purchases of government bonds, when the next crisis hits. Even so, bonds are going to keep losing purchasing power to inflation (as they already have, for years).
ILC,
Agreed on both observations. We are essentially shafted. Short of collapse and a barter economy, the only game in town is to buy the biggest wheelbarrow to carry the funny money to Starbucks.
Oh, and buy on credit today and get the lowest rate and the longest payback available. Gresham is calling the tune.
Own (1) real assets: things that help you live, and/or the things that people will be frantically dumping their money into once they realize their money is worthless; and (2) real cash flows: shares in sound, profitable businesses that will be last to vanish in a collapse, because they are connected to traditional human needs.
I know. Way easier said than done. Especially because others are catching on by now and bidding up prices. Example: I say that gold is still a bargain at $1500; but wasn’t it much more of a bargain at $300! or even $1000!