June 28th, 2012

Two, two…two things in one

In another comment thread, I wrote:

In order for the Court to have standing to hear the suit—because if it were a tax, it could not be heard until the “tax” kicks in, which I believe wouldn’t be till 2014—the Court had to consider it not a tax, which they did. They determined that for that purpose they would go by what Congress called it. However, for the purpose of deciding on its constitutionality, they would switch hats and call it a tax and therefore constitutional.

Sort of like light is sometimes a particle and sometimes a wave. Except this isn’t physics.

On reflection, though (and with a little nudging from Artfldgr), I think it’s actually more like this:

21 Responses to “Two, two…two things in one”

  1. Cris Says:

    I shudder to think what we’ll find the Retsyn to be in this “mint”.

  2. NICUNURSE Says:

    An e-mail from the CEO of the hospital where I work sent an email within hours of the decision of how overjoyed she was with the decision.The nurse and MD who happened to be in the room where I was when it came out also thrilled,actually all the MD’s seem very pleased.One of the blogs I follow just had a post about the evil Supreme Court Decision Re corporations are people/campaign contributions -the example Big,bad agribusiness and then an update again overjoyed by the decision today.There are a lot of people who really just think everything should just be free,that is all that I can conclude.

  3. Artfldgr Says:

    Cris, you just reminded me of something i noticed. when a product needs a boost, they add blue dots. in certs it was retsin, but if you look, they did the same blue dot thing in detergents, shampoos, even underarm anti-persperant. thems must be some magical blue dots! :)

    and here is the clip for the SNL skit
    Saturday Night Live Clip (Shimmer Floor Wax)

    in the other post i actually copied the actual script and replaced husband, wife with dems and republicans and the announcer with scotus :)

  4. Artfldgr Says:

    this is the video, sorry

  5. holmes Says:

    What I don’t understand from proponents of the law is this- there are like 4 good things in it out of 2000 pages. But nothing is free in it- the people who can’t afford insurance still cannot afford insurance. What changed? I think more people will be uninsured now as employers drop coverage (assuming this isn’t repealed or waived by executive order in a few months.) I mean, I guess I would just expect more good things from 2000 pages of law to advertise.

  6. Steve Says:

    I wonder if liberals are operating under the assumption that opponents of the law will accept it as the new reality now that it has been deemed constitutional. I have no doubt that McCain and all the Bushes would do just that. It is hard to predict the future but I expect to see a revolt if the GOP does not follow through and repeal the law. We cannot trust the courts. We cannot trust the current political class. There would really be no choice but to abandon the current parties and seek to dominate all branches of government in order to destroy the current political class and stack the courts.

  7. Pat Says:

    Chief Justice Roberts has tossed the issue back to the people. He said: “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.”

    He did not want SCOTUS to overturn a major piece of legislation but he did throw a few wrenches into the works. He has given opponents a powerful weapon by defining the mandate as a tax. The Democrats could never have passed Obamacare if it was called a tax. They won’t be able to stop its repeal now that SCOTUS has said it is a tax. The American people face two massive tax increases; the expiry of the Bush tax cuts and the Obamacare tax increase. It was Mr Obama who said:

    If your family earns less than $250,000 a year, a quarter million dollars a year, you will not see your taxes increased a single dime. I repeat: not one single dime.

    That’s going to go down with Bush’s:

    Read my lips: no new taxes

    Then Chief Justice Roberts stopped the federal government from penalizing states that opted out of the Medicare expansion. This will make it much harder to “pay” for Obamacare. GOP states will be much more out-spoken in their opposition to Obamacare, and some vulnerable Democrat states might join the cause.

    The Obama administration relied on the commerce clause to justify the mandate. Chief Justice Roberts pulled that rug out from under their feet.

    Obama’s base would have energized and railing against SCOTUS had it lost. But it won and it is relieved. Not the GOP, and not the 2010 Tea Party activists; they are fired up and seeking revenge.

    Best yet, Chief Justice Roberts completely destroyed the Obama election campaign strategy. He put Obamacare front and center in the election campaign and he linked it to much higher taxes.

    I’m starting to like what happened today: Obamacare survived, but it is severely weakened and an easier target for repeal. It is up to us, the People, to kill it off in November.

  8. Brad Says:


    Where were all these posts full of outrage and /or fear when Obama pulled the shenanigans he did with NDAA, or when he decided (very recently) that he just wasn’t going to decide to enforce the laws of congress when it comes to immigration.
    Drones in America’s skies? Nearly molesting 3 year olds at airports with ridiculous pat downs or making their lives miserable because they are on a ‘no fly’ list that the government refuses to explain and seems incapable of amending? Patriot Act 2? The expansion of pre-trial seizures of property to fund the drug war?
    The fact we’ve been living under Wickard jurisprudence for 80 years or so now?

    Hardly a peep. But when the President and the SCOTUS use some of the same types of shenanigans to uphold a health care law – health care being something that affects everyone and that everyone eventually needs – suddenly it’s the end of the Constitutional Republic and the World Will End -well, that is unless we elect a corrupt half-RINO republican – then the world will presumably be made right.

    I can only shake my head in both amusement and disgust. By all means bring on the Police State. Just don’t let those other schlubs -esp the ones who are jobless or who don’t have as good a job as I do – have any healthcare.

  9. Artfldgr Says:

    By attempting to preserve the face of neutrality of the court, he destroyed it without relizing it.

    ie. once a certain level of power is reached, the court becomes irreverent, and the way this stands, clever people will be able to get anything through that clause. there is no more need for a scotus at that point. Just put everything in those terms and nothing rises to them again.

    for instance, say abortion makes it to them again… no problem.. just do things for abortion as medical and commerce based, rather than any other base.

    anything and everything you pick can be shoved under this, and so nothing put in those terms will ever rise to them

    a court with no cases is no longer a court

    affirmative action was struck down, but under healthcare its a commerce health issue that cant be struck down… (if you can get A to pay for medical for B, then why cant you get A to pay for anything else that affects health and commerce?)

    he saved it for nothing as doing that makes it a cargo cult image of what a court should be.

    Read Krauthammer if the above seems a bit odd or invalid as its based on taking his angle and looking to the logical outcome (focusing on devious logical options that morally are invalid, but amorally ok)

  10. Artfldgr Says:

    i think my spelling took a vacation today…

    relizing = realizing
    irreverent = irrelevent (though a funny mistake)

    sigh is sigh :)

  11. M of Hollywood Says:

    If the Romney campaign would explain clearly and simply what ACA does — as this cute animation does http://omidmalekan.com/?p=599 — and then explain what competition in health care COULD look like by creating something equally simple, fun, and cute — and then explain clearly and cutely why the government should not be allowed to hide and lie to people — and then explain cutely and clearly why this is all part of the same thing (a throwing off of obfuscation and the fresh call to freedom) then we might really have some … hope and change.
    Plus, for the small but robust pack of us neo-neoconners, we would all get to see how Artfldgr was right all along — and how neo-neo kept us together. Then, happily, the sobering pessimism of Artfldgr could be cast off in an onslaught of (cute) clarity which might make even Artfldgr dance.
    Oh, yes, I’m a dreamer – but I’m not the only one. Or am I? is that Artfldgr whistling again?

  12. baklava Says:

    Regressive tax.


    The one percent aren’t subject to the new tax as they probably have insurance.

    Seventy five percent of the people who don’t have insurance could have purchased some kind of insurance but chose not to.

    This forces personal responsibility and I secretly have supported this part of the legislation. I even told my girlfriend that. Nothing comes free!

    The test of the legislation is an obamination to the highest degree

  13. baklava Says:

    The rest

  14. NeoConScum Says:

    N-Neocon…A nod of respect to your “gut” talking to you early this week, Landord. As I admitted on that thread, my own gut was flat-lining & telling me nuthin’. My head still had optimism based on the questioning of the Solicitor Gen’l by the justices. Mein Gott, who’da thunk that it was Roberts, rather than Kennedy??

    I regretfully ‘toast that gut of yours, Lady! )-:

  15. davisbr Says:

    This was a bad day for America. For both the cheering left and the shaken right. Both sides dumbfounded …and both sides in incalculable danger.

    The Left should beware of what’s coming. The Right should look to their arms. All good men should fear.

    The Supreme Court wrote a law, based not upon law nor rights.

    …which ultimately says you can be taxed on your religious beliefs. Or lack thereof. Or anything, really. There is no limit …because there is no longer law.

    Tyranny has triumphed over the Constitution.

    A country that inherited and improved upon a jurisprudence that was based upon the understanding that a king has no “divine right” …that the Law is preeminent …has passed into the twilight of history. Failed.

    The Court is dead: long live the Court.

    We are undone.

    “…a Republic, if you can keep it”.


  16. Don Carlos Says:

    Amen, brother, amen. We are undone and very very few understand, nor will the ‘masses’ ever understand.
    All good men should gird up, not fear. Live free or die was never more appropriate.
    Perhaps we need a push, as in Tunisia, or was it Libya: Some self-immolations on the steps of SCOTUS snd the Capitol.

  17. baklava Says:

    Hallelujah! People can’t decide anymore that their HDTV is more important!


  18. Book Says:

    Hold on, so what he is saying is that the court decided to think of it as a tax for reasons of constitutionality, and yet ALSO as a penalty so that it could not be challenged as an unfair tax??

  19. neo-neocon Says:

    Book: more or less, but not exactly. The Court decided to think of it as a tax for reasons of constitutionality, and yet ALSO as a penalty so that it could be challenged now, rather than waiting until it takes effect, which is the proper procedure under the AIA for challenging taxes. If they had considered it a tax for the purposes of the AIA, it would have necessitated a wait until a time when the first taxes would have been collected (I believe in 2014) to challenge its fairness legally, as the AIA dictates.

    Law is nothing if not complicated. The decision said that since the AIA is a creature of Congress, they would take Congress’s word for it that it’s a penalty when evaluating it for AIA purposes. But since deciding a law’s constitutionality is not a creature of Congress but a matter of the Constitution, they would go beyond Congress’s clearly stated intent when evaluating that, and look at how the process of mandate/penalty would actually function.

    And then, in declaring it a tax, they not only went beyond Congress’s stated intent, but also beyond the usual definition of taxes, IMHO.

  20. Book Says:

    I can’t help but think that Scalia’s habit of refusing to debate intent, and deciding solely on the definition of the text, should be the only way laws are decided. After all, intent implies a psychological application, the point of view of the person reading the law as well as those who wrote the law.

    If one goes solely by the text of the law, there is no debate. The text says what it says. If you want the text to mean something new, write a new law.

  21. neo-neocon Says:

    Book: there is no way to do that, however. No text, no words, are not open to interpretation/misinterpretation. Actually, that’s what much of law is about. And you can make a law more and more specific, add more and more words, in an attempt to make the words completely clear on their face, but you will never, never, never succeed.

    As Karl Popper said, “It is impossible to speak in such a way that you cannot be misunderstood.”

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