June 29th, 2012

What hath Roberts wrought in his Obamacare decision?

I stayed up until the wee hours of the morning reading the SCOTUS Obamacare decision. What I found was so distressing I’m having trouble digesting it; it’s too fibrous and unappetizing a meal. But I’ve already swallowed it; in fact, we’ve all already swallowed it, whether we’re aware of that or not.

I’m probably going to write a longer article about it, but let’s just say for now that I’m also stunned by the depth of the misunderstanding (and/or deliberate misrepresentations, in some cases) about the case around the MSM and the blogosphere, even from the right side. For example, the usually insightful Walter Russell Mead simply doesn’t get it. He writes:

I am not enough of a constitutional scholar to have an opinion worth sharing on the merits of the decision, but in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward.

I’m not enough of a constitutional scholar to be called an expert, but I do know enough about the law that, after reading this decision, I can safely say that Mead is correct in one respect: the possibility of harm based on faulty constitutional theories that the health care law’s backers have put forward has been avoided. Unfortunately—very unfortunately—the possibility of harm based on faulty constitutional theories that the health care law’s backers have NOT put forward* has been tremendously increased.

Jonah Goldberg gets it, and puts it quite succinctly:

The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty!

To reach this decision, Roberts had to embrace a position denied by the White House, Congress, and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after they’re levied). Roberts’s effort, wrote Justice Antonin Scalia in dissent, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts accomplished the following: put a limit on the previously infinitely-expanding Commerce Clause with one hand and took away previous limits on the tax power of the federal government. A neat case of sleight of hand, accomplished while nearly everyone seemed to be looking the other way. And it was done with reasoning so tortuous that “sophistry” is a very mild term for it.

I’m not saying this because I’m against the result, although I am against the result. If Roberts had merely joined with Ginsburg and the rest of the liberal wing in saying this came under the Commerce Clause, and used the usual liberal legal arguments contained in their opinion, I would have disagreed but not been so outraged. What he actually did was far stranger and more singular, and quite possibly even more threatening to liberty. He:

(a) found a legal principle no one was arguing (possibly because it doesn’t make much sense)

(b) expressly ignored the will of Congress and re-wrote its law for it

(c) said the penalty was a tax for one purpose but not another

(d) ruled that Congress could do almost anything to compel behavior if it used its taxing power

(e) ruled Congress could do (d) without explicitly using said taxing power and even while explicitly denying it is using said taxing power, so that the people who elect members of Congress cannot know what is happening at the time

There’s probably more, but that’ll do for now.

[ADDENDUM: Randy Barnett notes a limit of sorts on the tax power:

...[W]hile Congress can use its tax powers to incentivize conduct, it will be limited to monetary incentives. Had its Commerce Clause claim been upheld, in the future it could have punished noncompliance with congressional purchase mandates with any penalty—up to and including imprisonment.

Scant comfort.]

*Or have barely put forward

46 Responses to “What hath Roberts wrought in his Obamacare decision?”

  1. nyght Says:

    I’ve been thinking about this a lot too in the past 24 hours, and I came up with this alternative example…

    Imagine this scenario:
    1) Congress passes a law decreeing that anyone in the country who is not a practicing Christian will be “penalized” and forced to pay a fine enforceable by the IRS.
    2) The law is challenged on 1st Amendment grounds, as it should be, and eventually goes to the Supreme Court.
    3) The Court’s opinion reads that, “under the 1st Amendment, Congress can make no law establishing a religion, or penalizing religious actions. The Constitution (1st Amendment) is quite clear on this issue, and it has been well established by the Court (cite precedents). However, since the ‘penalty’ is enforced by the taxing branch of the Government (IRS), it can be construed as a tax. (Cite examples) have long shown that Congress has nearly unlimited power to tax anything. Cite Justice Roberts and the ACA case. Thus, while we find this law Unconstitutional on the grounds of the 1st Amendment, we find it Constitutional under the established tax precedent…” Etc.

    I’m not a Constitutional expert, but this seems to be exactly the case that Justice Roberts makes in his opinion.

    Moreover, the example of the gas or cigarettes is… Well, there’s no other way to put it… It’s idiotic. With the cigarette or gas taxes, you are taxing the purchase of a commodity. With cigarettes, you can also make the argument that you are taxing behavior (smoke? Pay a tax), but the comparison is illogical. With the ACA, the correct interpretation of the example would be that you are not taxing the person who chooses to buy cigarettes, you are taxing/penalizing the person who does not.

    In no way, shape, or form is this even REMOTELY the same thing as his example reads/is used.

    I understand your ire here. This is a complete and total gutting of all the defensive measures of the Constitution.

    To top it all off, he disregards precedent on the types of taxes the government can impose on the populace. This is not a head tax, as not everyone pays it, nor do they pay the same. It is not an excise tax. It is not an income tax. Nor is it a consumption tax. So what kind of tax is it? In effect, it is an anti-consumption tax.

    But Robert’s ridiculous response simply dismisses this distinction as fighting over labels.

    The best part of it all is that the judiciary took it upon themselves to REWRITE the statute in order to make it Constitutional. This is something they do not have the power to do under the Constitution. So in effect, we now have a bill found Constitutional that no one has voted on, and was written by 1 man.

    This is lunacy. And any who argue it’s “brilliant” is ridiculously… I’ll just say it. They are stupid.

    The best that can be said about it is that it will fire up the base. Which I say is a very small consolation, considering what just happened.

    The worst is that the arguments that they curbed the Commerce Clause is irrelevant. Had they struck the entire damn thing down under the Commerce Clause, guess what?! You just curbed the power of the Commerce Clause!

    Mr. Will, I await your response. :-\

  2. baklava Says:

    conservatives will gain or should gain approximately 5 million voters.


    Because irresponsible people who didn’t want to purchase insurance but can afford to purchase HDTV will now understand a new tax. :-)

  3. nyght Says:

    And by the Judiciary, I mean Chief Justice Roberts. He’s the one who did it, and he’s untouchable by the people. We can’t throw him out of office. We can’t force retire him. He has total immunity in this. And that REALLY burns my… I’ll let you fill in the rest, since I prefer not to swear in public.

  4. davisbr Says:

    …judges can be impeached and removed from office by Congress (just like a president can).

    …it won’t happen, but there is recourse. The Founders foresaw that need, too.

  5. neo-neocon Says:

    davisbr: they can be impeached, but not for poor reasoning.

  6. George Pal Says:

    I would think the precedent and the result of this decision as delineated in A through E makes this yet another marker in the devolution of this country, as much as the Civil Rights Act 1964. Normally I would think, having been witness to the Kelo decision and now this, that it was just bad luck – like getting hit by lightning twice in the same place, but this is beyond normal and well past anomaly. Having now both the Commerce Clause and the taxing power at their command, there is no contingency that cannot be made a certainty.

  7. Curtis Says:

    Fine time for Roberts to become the most concerned judge in the universe about a judge’s responsibility to save legislation. That concern, which is the principle that a judge consider all statutes which would qualify the legislation, does not require a judge to ignore restrictions and make an unworkable argument reasonable.

    Roberts seems to have been persuaded by the limits of the mandate, which, in his mind, made it look like a tax. And, I have to say, I agree with him that even though the progenitors do not say it is a tax, it can “reasonably” be categorized a tax. Now, here, there are the problems of granting Obamacare based on the Anti-Injunction Act and that its progenitors do not call it a tax, but those are not definition or substance problems. Both are easily resolved.

    But is such a tax constitutional? And here’s where I leave Justice Roberts. His avenue presents the same problem as the commerce avenue: It leaves the power of the federal government limitless.

    But, nonetheless, its just those two steps: 1) Can it be called a tax? 2) Is the tax constitutional?

    That Roberts would say yes to number 2 and thereby open a gate to taxing power is awful. However, I understand that there is a remedy for taxing power: voters. It’s just that voters don’t fill me with too much confidence.

    But, actually, voters are the biggest and final source of power. Or should be. In that way, the way that Roberts pointed the only remedy, there is good in his ruling.

  8. Book Says:

    I don’t claim to be a lawyer either, but I’m not unwilling to learn. It was my understanding that any law passed as a tax can only be challenged once someone has been forced by the IRS to pay that tax- is it possible that Roberts simply punted the ball? In other words, he used the ruling to put limits on the Commerce Clause, but decided to put off ruling on this massive tax until it was brought before the court as an unfair or illegal tax?

  9. Stefan Says:

    Here is a good analysis – emphaiszing the silver linings of a what was, in fact, a cunning decision

  10. neo-neocon Says:

    Curtis: but if it’s a tax (and I don’t agree that it is, but let’s say it is for the sake of the point I’m about to make), what sort of tax is it? Note the differences between this tax and other taxes that commenter “nyght” describes here.

    I maintain that if it’s a tax then it’s a direct tax (like a capitation tax), which would mean it’s unconstitutional because it directly violates the constitution’s explicit requirement that such taxes fall equally on all or be proportionate to the census. The dissent in yesterday’s case touches on this, and the fact that the issue of what sort of tax it might be was not argued before the Court and was only even mentioned briefly in a sentence or two of the very long hearings.

  11. Artfldgr Says:

    Unfortunately—very unfortunately—the possibility of harm based on faulty constitutional theories that the health care law’s backers have NOT put forward has been tremendously increased.

    look in the negative space…
    which i said before…
    the not logic..
    whats missing..
    whats omitted…

    its easier to hide something if you make it invisible

    under part D, you negate scotus..
    and you open the door to complete and total control of the population through state permits, fines, taxes etc.

    we have just made a fascist state just like nazi germany, and i mean JUST like it.

    ie. the health care law will ration according to class lines… the Volk will get more, the scapegoats less.

    thats the same as Acton T4

    add to that the new idea of curing people of their political affiliation

    What i referrred to as a mash up of Theodore Adorno, Clockwork Orange Mash up with Joseph Mengele as the good doctor…

    when will we realize that its genocide?

    when the targets are all gone, and not before?

    “Once [white people] die, we should dig ‘em up, and kill ‘em again, bury ‘em, dig ‘em up, and kill ‘em again, and again, and again!”

    General T.A.C.O. (Taking All Capitalists Out) of the New Black Panther Party had some less than encouraging words for white people this week. Mr. Taco, speaking on NBPP Radio on Sunday, decided to let white America know that the NBPP will “hunt” their “pink asses down.” Hunting white people down will serve to accomplish General Taco’s other stated goal of “destroying white supremacy and capitalism.”

    Gen. Taco also justifies his killing of white people because of their “history” of pushing “crack, AIDS and unemployment“ on black men and women in order to ”exterminate” them.

    these are the people that five years ago i said would be needed for the conversion..

    i even pointed to the first occurrence of it, and many more… but why listen to experience when argument from ignorance seems so much smarter?

    One key to the success of Stalin’s brutality was having an efficient, pervasive intelligence organization to carry out his orders. Stalin had one: the NKVD.

    the soviets were skillful to attract a brutal class of peoples who would serve as their force against the others.

    ie… the way the ex soviets and others know whats going on, is that each part is appearing… may not look the same, may not happen in the same order, may even be facilitated a different way, but the POINT is always the same…

    its very hard for the victims in the society targeted to understand whats going on as you have to step back to see the forest from the leaves.

    that is. your focusing so much on a few leaves here and a few leaves there, is not going to let you see the forest, trees, and the lay of the land.

    which is why i argue forests and am refuted with leaves.

    its not a single leave that has the weight, its them put together.

    so abortion by itself, may or may not be the points of the argument. but it doesnt exist by itself, it exists with other things.

    so when you put abortion, foster care, redistribution, health rationing, and so on.
    you have eugenics/euthanasia programs and you have genocide and breeding of humans.

    you will never conclude genocide and that if your going to look at the parts separately because the functional whole is the interaction of the parts…

    a trigger for a gun by itself is harmless.
    a firing pin by itself is harmless
    as is a barrel, a handle, a magazine, etc

    TOGETHER they make a weapon that kills.

    why people don’t get that this applies to more than guns, is beyond me. even more so when you realize that this gun has killed 50 million directly, and millions more indirectly, to the point of going below replacement

    which is walking dead as no race has ever come back from that! not even Russia who have been trying to pay for children and its not working and hasn’t worked.

  12. neo-neocon Says:

    Book: Roberts explicitly dealt with that issue. I could have listed that in this post as one of my problems with the decision, but the list would be way long if I listed them all. He said that for the purposes of the AIA (anti-injunction act, the question you’re talking about where a person challenging a tax must wait for the tax to take effect), the Court would take Congress’s word that it’s a penalty and not a tax, and so the Court could hear the case now. And for the purposes of Obamacare’s constitutionality, the Court would ignore Congress’s express and explicit intent and consider it a tax and not a penalty.

    Two, two, two mints in one.

  13. Curtis Says:

    Absolutely the right question to ask, Neo.

    It’s a “new” tax. That is as far as I can go with it. I balk at it being a tax as well especially as Gcotharn pointed out, it’s a tax for inactivity. But is Robert’s position “reasonable?”

    As Roberts pointed out, it “looks” like a tax. In that paragraph he lists the similarities:

    “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government…”

    So, I refrain from calling it a tax. But there’s an outside chance it’s not unreasonable to categorize it as a tax.

  14. Artfldgr Says:

    Prior to CHANGE

    Number of university students per 10,000 inhabitants This placed Latvia in second place in Europe behind Estonia (37.7). The percentage of women students placed Latvia in the first place in Europe (39%).

    Number of books (titles) published per 100,000 inhabitants 82
    Latvia was second behind Denmark (86) in Europe. Between 1919 and 1936
    a total of 22,868 books were published, with 56,000,000 copies printed, or 30
    per inhabitant, children included.

    the population there was better educated than the Americans at the time.

    this is the order that it happened there.
    but the order is not as important as this is subversive not open invasion by the strong.

    Moscow Orchestrates the Take-Over
    Creating a Revolutionary Situation
    Communist-Style Single Slate Elections
    Annexation as Incorporation
    Destruction of Latvia’s Armed Forces
    Nationalisation of Property
    Repression of Religion and Persecution of Churches
    Subjugation of Social and Cultural Life
    Communist Education of Youth
    National Resistance
    The Repressive Terror Mechanisms and Article 58

    now… are they creating a revolutionary situation? are they playing with elections? are they harming the military with policy? have they nationalized industry to faciliate control of people? do they use taxes punitively for social control? social laws? thought laws (pc)?

    are they smashing classes together?

    is there a repression of religion or using one religion that is favored to smash the other?
    [Islam used to smash judeo christian]

    is there repression of a sex by the other sex with the help of the state to neutralize the men who would fight and oppose if they had a reason to fight?
    [feminists against their mates]

    is there repression of both races and each blaming the other to set them at each other?
    [minorities against whites/jews]

    if you said yes to most of this, you been sitting around during an invasion and didnt know it. and were waiting for it to look like what disney or hollyweird has made it look like.. you know, flags, costumes, etc
    [are you told to focus on trappings not substance?]
    [edited for length by n-n]

  15. neo-neocon Says:

    Curtis: but if it’s a tax, it’s a direct tax, and is probably structured in violation of the Constitution. But that question was never argued in the case, as the dissent points out; it would need to be argued.

  16. Curtis Says:

    Regarding taxes:

    The other day on the “cat closing door” thread, an ocicat was introduced by commentor Kae Arby. I’d love to have one. They didn’t exist sixty years ago. They’re a cross between Siamese and Abyssinian. It’s a new cat.

    Well, taxes are something of the same. They are rather indifferent to their owners and like to present not their face but their butt to you. “Hello. Like me? Here’s my butt”

    This facet of taxes is described in Penn Mutual Indemnity Co. v. Commissioner, (1959) 277 F.2d 16.

    “It is not necessary to uphold the validity of the tax imposed by the United States that the tax itself bear an accurate label.”

    The requirement that a direct tax be apportioned among the States according to their numbers is not likely considered a huge obstacle since the 16th amendment excepted from property personal income as property which could be taxed without apportionment. It’s clear that since the “health tax” is contingent upon the fact that you make a certain income and is graduated up to the full amount of the tax, that it falls under the 16th amendment.

    But that does bring up an interesting idea of one’s health as one’s property, an idea I think is true.

  17. neo-neocon Says:

    Curtis: but in this case it is not income that is taxed, it is failure to buy an insurance policy. The method of collection is the IRS, but otherwise it is not an income tax. For example, it only comes into play as a tax at all if a person has failed to buy an insurance policy, not just by earning income. People who have bought an insurance policy are not exempted from the tax otherwise levied on everyone with income above a certain amount; it is a “tax” that only acts as a penalty for a failure to purchase insurance. I don’t see how that can be considered an income tax.

    The dissent stated:

    Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

  18. Curtis Says:

    First, congratulations to your intuition, Neo, that felt or smelled or intuited something other than what I and most people thought was going to happen.

    What is being taxed? It’s the decision to use health care by people who didn’t pay for it, a decision that is taken for granted, yes, but one that everyone concedes will occur. That decision confers benefit on your property, that is, your health. Thus, it is a tax on property for which you enjoy protection just like you get protection and other services from the government. In order to provide revenue for that service, there are taxes.

    And here we come to the real heart of the matter: The problem. Since no-one seems to be able to deny health care to people who either can’t pay for it or will not obtain insurance (and can), then there’s gonna be a price that others pay. There is no such thing as a free lunch. That part of market principle remains true. The “mandate” now renamed the “health care tax” is a tax on your health property, property which will receive protection and benefit from the federal government.

    The question is, “Do you want the federal government providing that?”

  19. parker Says:

    I’m a simple man and I believe the original Constitution was a plain spoken document. Scholars, pundits, and politicians can spout endlessly, but SCOTUS has done a very despicable thing in turning a penalty in a piece of legislature into a ‘tax’ in order to find an unconstitutional law constitutional. It has created the means for a regime that can ‘tax’ you when you do not engage any in sort of behavior under the sun. Its the Kafka States of America until this ridiculous and dangerous precedence is over turned.

  20. Curtis Says:

    That’s why simple men were made the first and most important source of law. It should be noted, those men were basically Scripture believing, hardworking, and independent men. That there is no longer that core is the main problem and there is only one solution as the Founders well knew. So, whether it’s a tax, or mandate, or expensive insurance, the problem isn’t going away. It just got a whole lot too. Where did people get the idea the federal government is good at fixing our supplying things? Ohh yeah. College.

    Pilgrims to Mars!

  21. kaba Says:

    I wonder if CJ Roberts has even a clue of how he has betrayed the Spirit of ’76; our Founding Fathers; and the Original Intent of the Constitution? Does he give any thought to how he has so disappointed the majority of those who supported his appointment during his confirmation hearings? Does he ever consider that he has perfectly served the interest of those who would not only have denied his confirmation but banned him from all public life.

    I see results like this and wonder what kind of people are these? Can they do things of this nature and look in the mirror to shave; or sleep well at night.

  22. holmes Says:

    They could have said- “Everyone is taxed $X to pay for the uninsured with anyone purchasing a qualified plan exempted or meeting other income criteria exempted.” Again, it’s not what they said, just like they didn’t call it a tax, but they could have.

    It’s all sour grapes at this point, I’m sorry. I haven’t heard a compelling reason even for denying severability of the mandate. The Right is upset because the plan they hate wasn’t overturned. We should try winning an election instead of leaving it to the Court. We didn’t hold R’s accountable for 8 years when they could have preempted all of this nonsense instead of handing out earmarks to future employers. So buck up, everyone! Buck up!

  23. holmes Says:

    And why was it better if there’s no limiting principle for the commerce clause than the taxing power? That doesn’t make sense.

  24. rickl Says:

    Curtis Says:
    June 29th, 2012 at 7:34 pm

    Pilgrims to Mars!

    Great minds think alike, and almost simultaneously.

  25. neo-neocon Says:

    Curtis: thank you. I don’t quite understand where that intuition came from, but it was very strong and I couldn’t ignore it.

    As for the tax question—the thing is, a tax has a certain structure. An income tax is a tax on income, and the various exemptions come afterward, as incentives to certain behaviors. For example, there is an exemption for making charitable contributions. It is not a tax on not making a charitable contribution; the money is collected through a tax on income, and the exemption reduces that tax in order to encourage a certain behavior (charitable contributions).

    If the Obamacare “tax” were structured that way—if it was a deduction from income tax for people who buy health care insurance, in order to give an incentive to buying health insurance —it would indeed be under the tax power, and it would be constitutional. Or, if there were a payroll tax (a tax on wages), and then those monies went to fund Obamacare, that would be okay too under the tax power. These would actually be real taxes in the sense of the word as it is usually understood.

    But this is not, even if Roberts wants to stand on his head and spit wooden nickels to say so. This is a penalty for a failure to buy insurance. Although it would be collected by the IRS, and would be adjusted in various ways depending on a person’s income, it is not a deduction but rather a charge exacted for a failure to buy something. There is no other tax that has that structure at all. It’s not even a fee, which is a charge to do a certain activity (like licensing). It is a penalty for failure to do something.

  26. neo-neocon Says:

    holmes: but I am upset because this sets a terribly dangerous precedent that could be used by anyone—left or right or in-between—to compromise liberty. I believe a lot of other people share my concern, and I’m not sure why you don’t see that. It’s not really about Obamacare for me and many others; I expected that to be held constitutional, but on other grounds. This is very bad for process reasons. Please see this excellent article for a further explanation.

  27. neo-neocon Says:

    holmes: it was “better” (although only somewhat) if this had been done under the Commerce Clause for reasons that should become clear if you read this article.

  28. Curtis Says:

    Don’t get too mad at Roberts. Remember there were four other justices.

    Also, remember the principle that if it is rationally possible, judicial review upholds the law. The burden of proof and the preponderance of evidence lies upon and is required of the movants, in this case, the movants are those opposed to ACA. The presumption is that it is good law.

    And the Constitution provides the federal government with the power to tax.

    Ann Althouse doesn’t find substance wrong with Robert’s reasonings, but that he allowed the deception of the bill to triumph and didn’t even really remark on it. In other words, Congress, knowing the word “tax” was doom, substituted “mandate” and “penalty.” But all the while relied on tax.

    I go with Parker. I may have rationally followed Chief Justice Robert’s arguments and found them less susceptible than I thought, but I feel tricked and not at all happy.

    My original thought presents even more clearly. Let the people speak. Is this what you really (I mean really) want?

  29. neo-neocon Says:

    kaba: I actually don’t think he does.

    Law is a funny thing. A lot of people hate and despise lawyers; I don’t. Some of my best friends are lawyers, plus I have a law degree myself. Law is a very picayune subject. It doesn’t encourage the larger broader point of view. It’s a real detail operation, and a nitpicky one. Some justices are people of great depth, breadth, and scope, but I think that’s somewhat unusual.

    I haven’t studied the lives of all the justices—or even most of them—but it is my impression that Roberts is not of that “vision” type. And in fact, when I look up his Wiki entry here, I find this:

    During his confirmation hearings, Roberts said that he did not have a comprehensive jurisprudential philosophy, and he did “not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document”. Roberts analogized judges to baseball umpires: “[I]t’s my job to call balls and strikes, and not to pitch or bat.” Roberts demonstrated an encyclopedic knowledge of Supreme Court precedent, which he discussed without notes.

    I think that tells you quite a bit about the sort of mind he has. He would not be the one to consider the sort of things you are mentioning. And of course, when a judge is appointed, he/she is supposed to decide things based on his/her judgment, not whether he/she is disappointing a group of people who supported him/her. And that’s the way it should be. But I would rather have a deeper thinker up there, although I’m sure Roberts is quite brilliant in terms of legal knowledge and that sort of thing.

  30. neo-neocon Says:

    Curtis: did you read why I said it was not a tax? And did you read the McCarthy article I linked to about the fraud?

    Ann Althouse is ignoring the sort of thing I raised in my discussion of whether it’s a tax or not. It is not analogous to a cigarette tax—for that, the tax is on an activity, although the idea behind it is to discourage that activity. Completely different, and a very typical function of a tax (an excise tax, in the case of cigarettes).

    The “tax” that Roberts found in Obamacare bears no resemblance to that or to other taxes, nor is it a tax exemption. If we want to get technical, I would say a non-criminal penalty.

    The following is a quote I took from the comments section of Althouse (don’t have the link right now):

    Every other tax that I have been able to imagine is the government taking a varying-sized cut from an economic activity. A person buys cigarettes, and the govt. takes a cut (sales tax). A company buys services from a worker, and the govt takes a cut (income tax). A person buys a very expensive item like a yacht, and the govt. takes a larger cut (luxury tax). A person dies and passes his wealth to those he designates, and the govt. takes a cut (inheritance or “death” tax). A person sells a stock for a profit, and the govt. takes a cut (capital gains tax). A person acquires a purchases a “permanent” asset expected to provide recurring income or savings, and the govt. takes a cut (property tax). The income tax deduction is a case of the govt. deciding to reduce its cut if the person performs certain actions (buys a house or has kids).

    All of that is within the context of taxes commonly understood. Economic activity takes place. Government takes a piece of the action in such a way to encourage or discourage specific activities.

    How does forcing someone to pay something for not doing something fit into that?

    Answer: it doesn’t.

    One correction to the quote: actually, it’s not usually a cut, it’s taking all of an addition to the price, because the merchant has usually raised his/her price in accordance with the need to give the government part of the take. But it’s a cut of the new, higher price. With the estate tax and the capital gains tax, it is indeed a cut of the economic activity.

  31. njartist49 Says:

    @ artfldgr
    I would day the thug troops have been preparing for sometime and not just the NBPP: the Nation of Islam and the Zebra killings which are either still going on or there are several copycats out there.

  32. Curtis Says:

    I am beginning to agree. I will read the excellent McCarthy.

    But there is also this.

    What Roberts calls a tax is at least three things: A federal command to buy health insurance, a refusal to do so, and a supply of benefits. Unless those three things occur, the reason for the tax is nonsensical.

    The first observation is the striking presence of the federal government which is not only commanding the purchase but the supply of health care. What enumerated power gave the federal government the right to become demand and supply of a whole market? I’m not sure I can articulate a good convincing argument that such a situation is unconstitutional, but I do know it is not limited government.

  33. Curtis Says:



    A fee charged (“levied”) by a government on a product, income, or activity. If tax is levied directly on personal or corporate income, then it is a direct tax. If tax is levied on the price of a good or service, then it is called an indirect tax.

    The purpose of taxation is to finance government expenditure.

    One of the most important uses of taxes is to finance public goods and services, such as street lighting and street cleaning. Since public goods and services do not allow a non-payer to be excluded, or allow exclusion by a consumer, there cannot be a market in the good or service, and so they need to be provided by the government or a quasi-government agency, which tend to finance themselves largely through taxes.

    What does this tell you about the future of the health market?

    There won’t be one. (Except on Mars)

  34. neo-neocon Says:

    Curtis: yes, although Congress already has the power (under its tax power) to shape and encourage or discourage certain behaviors through tax exemptions and the like, that is different than this because the former is done through the mechanism of making adjustments to taxes that are collected on activities—adding a tax to purchases they want to discourage, or generally taxing wages, interest, dividends, etc. and then offering deductions for the desired behavior. But Obamacare is structured differently. Just as you say, it involves “A federal command to buy health insurance” and “a refusal to do so.” Actually, though, the benefits part doesn’t have to take place for the money to be collected; the penalty is instead of getting the benefits. The benefits only come if the command to buy health insurance (let’s call it a “suggestion”) is obeyed.

  35. Curtis Says:


    And it’s not the dictionary definition of tax which should prevail. And it seems to be the dictionary definition which Roberts refers to so as to keep it general. And there are really two parts to the definition: how it is assesed and what it is used for. It is the first part which is lacking.

    The McCarthy piece is damning and a counterpoint to Krauthammer. Kind of shows the legal v. general definition problem.

    Notwithstanding the ruling, there’s always been the better solution, the better thing for America: She becomes educated and aware. And I’m not sorry for believing it can happen. The level of conception in revolutiony America was way above what it is today. We’re not smarter; we have devloved. Hello. But the devolution need not continue and reform is possible and the real solution, which is a wise and informed populace, shall prevail. If the Lord has so decreed.

  36. SteveBrooklineMA Says:

    Let me see if I understand. If Congress raised income taxes $750 and granted a $750 income tax credit to those taxpayers who have insurance, then there would be no problem. But since the law has instead a $750 income tax increase on those who have no insurance (and thus has the same net effect), then Congress has over-stepped its authority?

  37. parker Says:

    “I may have rationally followed Chief Justice Robert’s arguments and found them less susceptible than I thought, but I feel tricked and not at all happy.”

    “… that is different than this because the former is done through the mechanism of making adjustments to taxes that are collected on activities—adding a tax to purchases they want to discourage, or generally taxing wages, interest, dividends, etc. and then offering deductions for the desired behavior. But Obamacare is structured differently. Just as you say, it involves “A federal command to buy health insurance” and “a refusal to do so.” Actually, though, the benefits part doesn’t have to take place for the money to be collected; the penalty is instead of getting the benefits. The benefits only come if the command to buy health insurance (let’s call it a “suggestion”) is obeyed.”

    Yes, I understand your arguments and explanations. But cut to the chase: BS is BS. I’m a farm boy, I know BS when I smell it and when I step in it. Life, liberty, and the pursuit of happiness, thanks to Roberts, has stepped neck deep into BS. This decision is male bovine excrement, PERIOD.

  38. parker Says:

    “… what kind of people are these? Can they do things of this nature and look in the mirror to shave; or sleep well at night.”

    These “what kind of people are these” are driven by their desire to be held up as wise in the limelight of manufactured public opinion. With this decision Roberts, as chief justice, is unmasked as Souter on steroids.

  39. Curtis Says:

    The farm, unfortunately, was not available to CJ Roberts who spent his formative time in the Washinton DC mileu. Compare him to someone like Jusitce Vinson who voted against Eugenices and against Brown v Board.

    Yes, it is to weep, but the real battle may yet be won because law rests in the mind of the people and if we elect those who are not panderers, then there is no problem.

  40. neo-neocon Says:

    SteveBrooklineMA: I believe that, the way the income tax is structured, it would not be raised for everyone by a specific amount ($750, in your example). Income tax is a tax that changes dependent on income (a so-called progressive tax, not a regressive flat tax such as you are proposing), so it would probably be raised as a certain percentage of income (probably different for different tax brackets).

    Be that as it may, I believe that your point is to ask why it would matter whether you give a tax break to people with insurance, or whether you have a special tax on people without it, because the two actions have “the same net effect.”

    It depends what you mean by “effect.” If you’re talking about money only, they have the same effect. But the other “effects” we need to be concerned about have to do with freedom of choice vs. compulsion. Perhaps you don’t see a difference between giving someone a reward (a tax break) for doing something that only some people will ever choose to do, vs. punishing someone (a penalty) for not doing something that everyone is supposed to do because the government has ordered them to do it. But I do. I’m surprised you don’t see that the former protects our liberty and limits government more than the latter.

    It all may seem petty at this level, but it can escalate insidiously.

    The government has the power to tax. To do something and call it a tax when it is really not a tax is to expand government power, which is another “effect”:

    “What kind of a tax is it?” Roger Pilon, vice president for legal affairs at the Cato Institute, said in a video released Friday by the Libertarian-leaning think tank. “It’s not an income tax. It’s not an excise, or an impost, or any of the other kinds of taxes that are recognized by the Constitution, and in particular by the taxing power.”

    From the dissent in the Obamacare ruling:

    Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty…is an exaction imposed by statute as punishment for an unlawful act.’”….We have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax….

    It makes no difference what you call it in terms of revenue; the same revenue is collected. But it does make a difference how it is collected, in terms of the expansion of the power of the federal government to regulate your life.

    If you believe in limiting the power of the federal government, this matters.

  41. T Says:

    Neoneocon et. al.,

    I offer this interview with Randy Barnett as a counterbalance to our concerns about the current retention of Obamacare. I’m no lawyer and hardly a legal scholar, but I have been following Barnett’s arguments throughout this embroglio and I have great respect for his opinion.


  42. T Says:

    . . . and this:


  43. T Says:

    and here is apparently the original source material for the Phillip Klein article above by Barnett himself (reading it as I post this):


  44. T Says:

    I offer this following comment by “historicus” on an article from American Thinker (citation below the quote:


    I am beginning to believe that this may be one of the great finesses of all time….I sense it… but can’t put my finger on it yet.
    The fact that the hack…Axelrod is in defense mode…out there saying “you can call it whatever you want”…tells me they are in a ‘twist’ about calling it a tax.
    To the article….the ‘curb’ on the misuse of the Commerce Clause is a win….
    the definitive rebuke of the Fed Govt coercing States into the Medicare scheme…is a wonderful defense of Federalism…
    But the calling of the mandate penalty….a ‘tax’…seems much larger …politically…than perhaps we all realize. There are Congressional procedural ramifications…there also is a broken promise ala the GHW Bush’s “no new taxes’ that sank his reelection….
    The dissent still rings true….that this is rewriting passed legislation…and that if the language “tax” had been used…. it wouldnt have passed. BUT, those who DID vote for this bill now have a HUGE problem with their constituents…do they not…? for exactly the same reason? They now have retroactively voted for new taxes on their constituents…..take that home and campaign on it!! Roberts….may have pulled a political payback ‘finesse’ on the Obama Administration that could be in a best selling novel…..maybe…

    Read more: http://www.americanthinker.com/2012/06/turning_obamacares_lemons_into_federalist_lemonade_comments.html#disqus_thread#ixzz1zHlbROAB

  45. parker Says:

    “If you believe in limiting the power of the federal government, this matters.”

    Neo, you win the understatement of the millennium award. ;-)

  46. J.J. formerly Jimmy J. Says:

    Neo, Curtis, and others, thanks for the discussion about the nature/constitutionality of this “new” tax. This is exactly the type of discussion/debate we need to have on a national level. More and more people are beginning to realize that the power to tax is something that needs to be reined in. That’s the very heart of the TEA Party’s existence. This new tax scheme (taxing inactivity to promote the progressives’ version of utopia) is something that needs to be defeated at the polls. The more debate that sheds light on it, the better chance that voters will reject it.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.


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