Let's Tax The Servers Here

Let's have a new "Why I No Longer Love John Roberts" open thread. Opinion here.

All this action will tax the internet servers, but not for inactivity.

Roberts specifically offers an example of taxing 'inactivity' that he claims would pass muster:

An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

 A bit later he tackles the apparent paradox that Congress cannot regulate inactivity but can tax it:

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if onlya tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstainfrom commerce, perhaps it should be similarly troubling topermit Congress to impose a tax for not doing something.

Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation throughinactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain,except death and taxes”).

Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’suse of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.

Second, Congress’s ability to use its taxing power toinfluence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motiveor effect of revenue-raising measures. See Kahriger, 345
U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” Kurth Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra, at 38).

We have already explained that the shared responsibility payment’s practical characteristics pass muster as atax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitivethat the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting)).

Third, although the breadth of Congress’s power to taxis greater than its power to regulate commerce, the taxingpower does not give Congress the same degree of controlover individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.
By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.

...

The Federal Government does not have the power toorder people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose atax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

I DON'T WANT TO READ ON: Scalia, Thomas, Alito and Kennedy join the dissent calling for the overturn of the whole act. But wait! Per the Volokh rumor mill, this "dissent" started out as the majority opinion until Roberts jumped ship over the tax argument. The key evidence is that in the Scalia dissent he refers to the Ginsburg "dissent", even though she was in the majority (p 139 .pdf):

A few respectful responses to JUSTICE GINSBURG’s dissent on the issue of the Mandate are in order...

Hmm, they say their response is respectful but I am not sure they meant it:

The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.3 The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national problem power.

USELESS WAVE OF NOSTALGIA: Here is the text of Obama explaining to George S that the mandate is not, nay, no never a tax. Steve Benen provides the pom poms on the left.

BACK IN TIME: Back when Dems were insisting the mandate was not a tax they were also touting the lack of enforcement of the mandate.

Comments

[MarkO]

This seems like an appropriate time to fight among ourselves. Along with "they wanted it more," a rival idiotic thing said in today's world is, "what doesn't kill us makes us stronger."

Profoundly wrong.

Proceed apace.

[Sara]

I don't care if he approves or not and if you would vote against him just for spite, that is not the kind of supporter he needs.

I do apologize for what I said. I'm upset. I've lost my doctor and my kids are probably going to lose their jobs. Neither offer health insurance, but employ more than 50 and my doctor has already said if ACA is upheld, he will not longer serve Medicare patients. This ruling is a disaster without Romney's promise to see it repealed. But that is still no excuse for my language and I do apologize to you.

[Ignatz]

--Sue, nothing in the constitution prevented congress from doing that before.--

Perhaps nothing did but I can't think of an instance of it happening.
Even Roberts' in his ruling had to resort to the mortgage deduction as an analogy as though giving someone a tax break for an economic activity they voluntarily enter into is somehow analogous to penalizing someone if they refuse to be coerced into entering into an economic activity they do not wish to.

[Ignatz]

--Along with "they wanted it more," a rival idiotic thing said in today's world is, "what doesn't kill us makes us stronger."

Profoundly wrong.--

Very wise, Mark. I've always detested that idiotic saying as well.

[derwill]

Since the passage of the 16th Amendment, Congress has always had the power to tax people to provide for their medical care (see, Medicare). What's kept them from doing so in the past is the fear that if they voted for such a tax, they'd get their asses handed to them in the next election.

The Supreme court has just said that those congress critters who voted for Obamacare voted for such a tax, and that fool in the Oval Office signed it into law. Now it's up to We the People to vote them out.

[AliceH]

Sorry about my horrible sentence construction. In related news, I just picked up the mail and it's 101F and rising.

[Jim Eagle]

I have a feeling this is not the only time we will be seeing this short YouTube video this election year.

As MarkO is fond of saying: He really isn't that smart.

[jimmyk]

let's put personal animosity on the sidelines until after November.

Why only until then?

I think Obamacare is dead one way or the other. My big fear is the Republicans' promise to keep the no preexisting conditions exclusion because it's "popular." I fully expect the Republicans to blow this, and that's more discouraging than anything SCOTUS has done.

[Ignatz]

And that was a very gracious apology Sara.
There will be a lot of people badly effected by this idiocy.

[Stephanie]

Hmmmm...

The Romney campaign reported raising about $1 million in the first three hours after the decision was announced; Obama campaign manager Jim Messina sent out a fundraising email to supporters 90 minutes before the ruling came out, telling potential donors that Thursday was “an important day to have Barack Obama’s back.”

No victory lap about how much O raised???
LUN

[Ignatz]

--Since the passage of the 16th Amendment, Congress has always had the power to tax people to provide for their medical care (see, Medicare). What's kept them from doing so in the past is the fear that if they voted for such a tax, they'd get their asses handed to them in the next election.--

Let's give Roberts and his accomplices the respect of acknowledging what even they acknowledge in the ruling; that this is a new precedent of coercing people to engage in commerce they otherwise wouldn't have and penalizing people if they refuse to be coerced.

[Enlightened]

Ugh. It doesn't even matter if ObamaTax is repealed. The precedent has been set.

This decision is right up FLOTUS ally. Her and Nanny Bloomberg and their ilk have free reign now to tax the shit out of anyone that doesn't "take care of their health"

Holy Shit.

[jimmyk]

There will be a lot of people badly effected by this idiocy.

Already a couple hundred million lost in the stock market.

[Captain Hate]

My big fear is the Republicans' promise to keep the no preexisting conditions exclusion because it's "popular." I fully expect the Republicans to blow this, and that's more discouraging than anything SCOTUS has done.

The battles never end. We get RINOs and squishes that spend tons of money only to different people than the donks do. The country has gotten far too complacent on thinking of a decreased amount of increase as a reduction. Without a change in that, we're all circling the drain.

[Chubby]

((Stocks of insurance companies fell and hospital companies rose sharply Thursday))

I wonder why. Perhaps investors are foreseeing a health care system like the tax supported Canadian system in the U.S.A's future, a system where insurance companies are out of the loop, and government directly pays hospital admin, MD salaries, etc. out of the money the Canadian government collects in taxes. Then Canadians get "free" health care, even if they die waiting for it.

[Enlightened]

Everyone - "LET's MOVE"....better start today.

There will be a new box on the 1040Form - "Let's Move" mandatory donation - check!

"Taking Care of Your Health" mandatory donation - check!

The possibilities are endless.

[Ranger]

Perhaps nothing did but I can't think of an instance of it happening.

That is because all previous congresses understood the electoral suicide of doing something like this. But there was no technical legal barrior from stopping them.

Personally, I would have preferred Roberts saying that the mandate fails as an excersize of the commerce clause, and since that is how it was enacted, the law is fatally flawed and overturned.

Everyone knows it never would have passed as a tax bill.

[Janet - Sorry about my horrible sentence construction.]

Sorry about my horrible sentence construction.

NOooooo...we don't have to apologize for that, do we? That apology will have to become part of my posting name. :(

[daddy]

"put your faith in what Jim Rhoads and Clarice, among others, say."

Captain,

I would like to, (and I still may, since I haven't caught up with the thread yet) but I am so angry plain-language wise that I am almost ill.

To use the Biden analogy when he quizzed Robert's about calling Balls and Strikes back during Robert's confirmation hearing, I am as angry as George Brett was when he was called out for Pine Tar on his Bat handle.

It seems to me that Common Sense American's were at the plate and the count was 3 and 2, and Obama just pitched a ball into the stands, 3 feet Left of the batter's box but Robert's, umpiring behind the plate, called it Strike 3 because the penumbra shadow of the wild pitch actually crossed over the plate ergo making it a strike.

To me this is a blow to Common Sense. It changes the definitions of common sense words into whatever someone wishes them changed into and moves the Constitution as an understandable document meant for the Common Man, into some sort of cabalistic malleable, text, decipherable only to elites educated in secret courses of gnosticism at Harvard. This decision says to me "Common Man, give up on your attempts to understand the Constitution. It is beyond your comprehension and we Priests will now tell you what it says and what it means."

If Robert's intent was to somehow maintain or recapture the Court's respect or standing among the Common Man I think he accomplished exactly the opposite today, with the added damaging consequence of making folks lose faith in the Constitution as the basic bedrock for our system of Government.

Back to the thread.

[PDinDetroit]

I will plead the 5th Amendment when I will be filling out my taxes for the specific question of "Do you have Healthcare?", as I do not have to "self-incriminate" myself. This is a FINE not a TAX, which means that I have to be "breaking a law" to be fined.

[Porchlight]

I can understand that people believe that Roberts found something to be Constitutional that isn't Constitutional. I am not enough of a Constitutional scholar to say whether or not he was correct to do so.

However, *if* a law is legitimately found to be Constitutional, I don't think SCOTUS is under obligation to save us from it just because it is a horrible law and will do horrible things to the country. I agree with Roberts - that is not the Court's job.

[Captain Hate]

daddy, read the Althouse thread (something I usually recommend for snarky comments following it but this time I think she explains things well).

[Landru]

Here's my argument! The "tax" can oly be "paid" by withholding a refund due from filing a tax return. There is no other enforcement mechanism. If you are not due a refund, the "tax" does not have to be paid. It is a purely up to the individual, by arranging his withholdings and return in the proper way, whether they pay it or not. Therefore, it is a de facto voluntary tax and violates the equal protection clause, because it is not enforced equally.
The "tax" applies only to those due a refund.

[pagar]

"and my doctor has already said if ACA is upheld, he will not longer serve Medicare patients"

It is my understanding that there are a lot of doctors that have said that. The only way to replace these doctors will be for the Obama regime to bring in a bunch more of their overseas constituency who, of course, will be so grateful for the opportunity that they will vote Democrat.

We're letting the leftists destroy America.

[Enlightened]

Sara - you really don't deserve any more attention, but I will say I have NEVER liked Romney and I NEVER will - that does not make me a Dkos or Du'er in any sense of the word. I have a RIGHT to criticize Romney and I will do so whenever I want.

Your personal attacks today are over the top and I won't respond again to you.

Sue - I understand you are a Romney supporter, but I will point out there is an obvious difference in how you handle Romney criticism as opposed to how Sara does.

[Sara]

I have mixed emotions about pre-existing conditions. I had BC/BS, a Cadillac plan, when my doctor decided it was time for a knee replacement back in 2005. We got denied and had to file for reconsideration. Their excuse was that my knee was a "pre-existing condition" because it originally started with the accident in 1987, and I had had to have 3 previous surgeries on the same knee. My doctor fought for me. So, like I said, I have mixed emotions. I do understand the arguments and for the most part agree with those who think the pre-existing conditions is going to add big costs.

[maryrose]

Porchlight:
Your dad has it right on the money!
This will all play out to upend Obama and Chris Steigerwald on Megyn said today is the day future president Romney will see as the decisive moment of his victory in November.The sleeping giant is awake. Obama has won a skirmish but will lose the war in November.Without the mandate all he gets are the taxes circa 2014 and he won't be in office then. Meanwhile all re=election dems continue to carry the millstone around their neck.

[pagar]

"Already a couple hundred million lost in the stock market."

Why should the leftists worry about the stock market, they've got the American taxpayer to rip off?

[Voldemort Delenda Est ! Sandy Daze]

I was a lackadaisical Romney supporter during the primaries, preferring SP, who tweeted of the OBAMATAX decision:

Obama lied to the American people. Again. He said it wasn't a tax. Obama lies; freedom dies.

and more recently on Facebook:

Thank you, SCOTUS. This Obamacare ruling fires up the troops as America’s eyes are opened! Thank God.

This proves to be such an unsettling time in America as we undergo the fundamental transformation that Barack Obama promised he would do to us if elected. Obamacare was dealt in deception and confusion by flooding the public with an overwhelming amount of conflicting “rationale” via thousands of pages of unread legislative detail, which is the radical left’s M.O. Obama promised the American people this wasn’t a tax and that he’d never raise taxes on anyone making less than $250,000. We now see that this is the largest tax increase in history. It will slam every business owner and every one of the 50% of Americans who currently pay their taxes. The other 50% are being deceived if they think they’re going to get a free ride – because Medicaid is broke. Recipients of Obama’s “free health care” will have fewer choices and less accessibility. Trust me – this much more expensive health care WILL be rationed; to claim otherwise defies all economic and common sense.

We will not retreat on this. A newly elected legislative branch is key to defending our Republic and fundamentally restoring all that is good in America.

SCOTUS now rules this is a tax? Well, Congress has the ability to create taxes – and also has the ability to rescind them. Upon their return from the July recess, Congress should act immediately to repeal this terrible new tax on the American people, and indeed they must repeal all of Obamacare. This is the most brazen and sweeping new tax and government overreach imposed on us. We the People did not ask for this tax, we do not want this tax, and we can’t afford this tax. This is not an answer to America’s health care challenges.

It’s time, again, for patriotic Americans to rise up to protest this obvious infringement on our economic and personal freedom. November is just around the corner. Today, the Supreme Court issued their ruling on Obamacare. In November, We the People will issue ours.

[Stephanie]

Why would anyone think Obama would be the least bit concerned about being considered a liar and a hypocrite?

It's the long march and he just got called safe sliding into home.

[rse]

JimR-that Medicaid expansion issue was the one that was analogous to what the feds are doing in education. Adopt what we want or else.

That may come in handy as Race to the Top states start to realize that Common Core is largely social and emotional learning and not content. I am mostly reading today and just as I suspected, going back to mid-1980s the prof is laying out that this theory of education is advancing a "socio-economics" paradigm. It rejects the concept of the individual and capitalism. You use school to socialize th kids with values and moral commitments that dictate their behavior choices without the child and then the adult really being aware.

Lovely stuff. That's the Ed Policy this Pres and Arne have bribed the states and districts to adopt. So yes, I can see a desire in the future for states to opt out of what they said they would do. Without having to disgorge what they are spending to push this crap.

[Sara]

Enlightened:

You can criticize Romney all you want and I won't say a word as long as you do it honestly. When you start lying about him, then I'm going to speak up. What you do with your vote is your business. If you want to vote for Obama, and it is clear you prefer him to Romney, then go for it, but don't expect me to think you are anything but really stupid.

[Voldemort Delenda Est ! Sandy Daze]

I have always been a strong and energetic ABO supporter, and registered that support with a(nother) donation to MR´s campaign ~two hours ago. I (humbly) encourage all who want to see this OBAMATAX--the LARGEST tax ever imposed in the long history of humanity--to support MR and, indeed SP, in the same manner. A buck a piece from 30 million anti-OBAMATAX voters would provide a very significant signal-to-noise ratio.

[Sue]

but I will point out there is an obvious difference in how you handle Romney criticism as opposed to how Sara does.

I'm pretty much of the opinion that calling you stupid and telling you that what you say is the stupidest thing I've ever heard won't win you over to Romney's side. But then, that's just me.

[pagar]

Sarah Palin and Allen West say it best.

http://www.thegatewaypundit.com/2012/06/allen-west-this-is-a-sad-day-for-americans-as-they-will-be-taxed-to-pay-for-benefits-they-may-not-need-or-want/

Why do leftists insist we have to live in slavery to give them what ever BS they want?

[rse]

Of course it is also the ed policy the Clintons tried to bring us and partially succeeded. That's why some of you can see such changes in what was offered to different children.

But the Stimulus Act purchased the new assessments that mean there will be no objective measures. Betting now is the SAT will be gone within 5 years. Hiring David Coleman and others who were behind Common Core says SAT and AP are all about to be largely transformed.

[Porchlight]

Slate not real happy:

Obama Wins The Battle, Roberts Wins The War

If you look at the URL, not the headline, it says:

Roberts Health Care Opinion - Commerce Clause The Real Reason The Chief Justice Upheld Obamacare

and it is being linked from elsewhere in Slate as:

Did Roberts Save Healthcare Just So He Could Gut The Commerce Clause?

Some eyes are opening.

[Chubby]

((Common Man, give up on your attempts to understand the Constitution.))

by the opposite token Daddy, the common man had no understanding of what Obamacare is all about, and now he does. Yes, Roberts could have voted it down on the basis that it violated the Commerce Clause, but in reality Obamacare IS a tax, and he could never have voted it down as a tax. Now that the common man knows exactly what it is he is dealing with, he can work to reject the tax. Roberts could as a proxy have rejected Obamacare for the common man, on the basis of the Commerce Clause, but then the common man would have never been enlightened as to exactly what it was that had been paternally rejected for him.

I think whenever a truth is revealed, a service is done, and Roberts was painfully honest imo about the content of the legislation.

[Sara]

Who wants someone who lies about you saying they're on your side, Sue? Would you believe they were?

[Sara]

And one last thing, this is NOT about Romney. This is about the Court's ruling, Obama, and the Dem enablers. Romney is the solution, not the problem, despite what certain people want to claim.

[LouP]

I don't see the silver lining the tax argument that most others here do. I'll bet that right now the Dems are in a mad scramble to find a rationale - either real, symantic, or more likely, a combination of both - to explain to their constituents why the tax is not going to, or should not, affect them. Level playing field, fair share, etc. - the Dems will be arguing until November that it's those evil capitalists that should be shouldering the burden of the tax.

And all they have to do is convince their army of moochers that it's a valid argument to take all the sting out of the tax threat. MSM, as soon as they get the memo on the plan, will do their part, and more.

I'm afraid the Dems have a silver bullet in all this we haven't acknowledged. Moochers are easily convinced ("willing believers") of anything that seems to benefit them. And we've - sadly - become a nation of moochers. They only have to keep the pretense up for a few more short months, and then it becomes a whole new ball game for four more years.

[Stephanie]

To put all your hopes and dreams for salvation into one presidential candidate as a solution to America's troubles seems rather foolish to me.

But then I have always thought voters were 'stupid' the last time around.

[Sue]

Sara,

We have had this discussion over and over and you refuse to see your response is the problem. You did it during the primaries, especially with regard to Perry supporters, then you started right up with Santorum supporters. Anyone not supporting Romney, to the extent you support him, deserves your scorn and damnation. Calling someone stupid because they correctly note that Romney has a problem with "Romneycare" is ignoring what is going through lots of peoples minds who don't wade off into the weeds with you on Romney. I promise you, Romneycare will be a problem. I'm hoping Romney overcomes it.

And now, back to your regularly scheduled condemnation of anyone not agreeing with your assessment of Romney...

[NK]

LouP-- all correct. One thing though, moochers are LESS THAN 45% of the national electorate. It's a losing play, that's why Bam was so emphatic saying it wasn't a tax.

[Jane]

I just sent an email to my tea party list and reminded them that is anyone knows how to remind people we are Taxed Enough Already, it is us.

WE have a standout tomorrow afternoon. Usually we get about 15 people. It will be interesting to how many show up.

[Enlightened]

"I'm pretty much of the opinion that calling you stupid and telling you that what you say is the stupidest thing I've ever heard won't win you over to Romney's side. But then, that's just me."

;o}

And just so you know - I would never vote for Obama. I would rather drink from the Buriganga river than ever vote for that POS.

[Extraneus]

It's time for the middle-class to develop a civil disobedience strategy that starves the government of money.

[Sue]

Enlightened,

I know. I get that from your posts. ABO. I just hope there are enough of us to get Romney over the problems you have noted he has.

[LouP]

NK @ 3:22. I'll challenge your 45% number. I don't know what the real number is, but it is increasing every day, and Dems know it (that, after all, is their plan).

[hit and run]

Sue:
How does that prevent future congresses and presidents from taxing me because I didn't replace my windows with energy efficient ones?

From the Roberts opinion (quoted by RDBrewer at Ace's):

An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax.

Apparently Roberts was quite wrong. There are many who doubted before today that that was within Congress's power to tax.

[Sue]

Hit,

That is where I got my windows analogy. I had already read Roberts' opinion.

[NK]

LouP-- 45% of the voters?.. I am very comfortable that moochers are far less than 45% of VOTERS. The other problem for Dems-- they run out of OPM far sooner than the moochers exceed 50% of voters-- see Europe and Japan.

[Jane]

This is from the Slate article. I have no idea if it has been posted:

The business about "new and potentially vast" authority is a fig leaf. This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do.

Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

[Jim Ryan]

Porch, what? My head is spinning. Roberts was playing 3D chess?

Is this possible?

[Jane]

It's time for the middle-class to develop a civil disobedience strategy that starves the government of money.

Sheesh! Join your tea party! What does it take? You know: Taxed Enough Already!

[rse]

Jane-That's why most of us immediately said this may work out very well.

Shows just how Machiavellian we can be. The lib's are so deferential to power it ultimately atrophies their skills.

Ginsberg should have seen this but now she has so much ideological company it muted her instincts.

[MarkO]

I think Congress can tax your unwillingness to eat broccoli. The point is that those who vote for that tax have to stand for election.

A mandate puts money in the hands of insurers and might lower costs. A tax puts money in the hands of, well, Obama.

Nadal losing. Even with illegal strings.

[Enlightened]

Lovely - Local SF paper reporting this is a win for Pelosi.

I did not bring any spare Depends today.

Sigh.

[AliceH]

Jane - I'd join a Tea Party if I could find one near me. I can't start one (just trust me on this). So what to do? Can I join yours? :-)

[Jane]

I started one Alice - all by myself. You can do it too.

[Jane]

I love that Slate article - and I'm so sick of these assholes in Congress saying: "Bush started it". (F&F)

[Jim Ryan]

Roberts writes the majority opinion deeming Obamacare unconstutional. He gets pressured. He gets angry. He gets fed up and re-writes it deeming it constitutional, simultaneously gutting the Dems' commerce clause leeway and giving Romney an issue: "it's a big fat tax". As TM says: Maybe!

Could the Kelo decision have meant "You idiots need to write some laws limiting imminent domain. Duh. Don't make us decide this crap. If you think we're going to do your job for you, perhaps this decision will disabuse you of that delusion."

[Sara]

Sue: I would have supported Perry, had he gotten the nomination. I would never have supported Santorum, mainly because I think he is a bigger whiner and blamer than Obama and I think he wants to take women back to the dark ages.

During the Primary, I argued against the misinformation and lies about Romney. Today, I did the same thing. I'll do the same tomorrow, if necessary. Romney is not perfect and if you would like me to write up something that lists all the ways I think he is not perfect, I suppose I can do that.

[daddy]

Sorry Captain,

Althouse does not cheer me up nor enlighten me.

I remain unimpressed with Robert's reasoning and very discouraged because IMHO this ruling diminishes the Constitution and the rights of the citizens of this country.

If the Left is happy about these rulings the last 2 days I can certainly understand it. If the Right is happy about these same rulings I do not understand it.

[Jim Ryan]

"Glad to have made that trade": We doom Obamacare at the ballot box in November and we get drastically curtailed commerce clause leeway.

Hmm. Now, that's 3D chess. Kind of hard to believe Roberts would intend that. Who is this Roberts?

[PaulL]

****This seems like an appropriate time to fight among ourselves. Along with "they wanted it more," a rival idiotic thing said in today's world is, "what doesn't kill us makes us stronger."

Profoundly wrong.****

The second quote is a bastardization of what Nietzsche wrote:

From the military school of life. -- What does not kill me makes me stronger.

[Stephanie]

Have to be careful discussing moochers...

Some moochers mooch and actively seek out mooching opportunities to get stuff with OPM. These are democrat voters.

Others mooch and actively seek out ways to not have to mooch. These are out of work republicans and former democrats both temporarily on the government teat and not happy about it but do need to feed their families and are using programs that they never dreamed of using.

There is also a subset of #2 that are mooching (as opposed to turning to family to help) cause everyone else is getting their filthy lucre and figure the shit's about to hit the fan so might as well get it while it's there cause they are tired of being suckers even though they have the $$ to tide them over - if painfully. These could be called pragmatic moochers.

The % of moochers is growing. The % of happy moochers is not. The % of unhappy moochers that are pragmatic is also growing. Fortunately, these last two categories do not feel their vote is owed to the democrats because they are mooching. These are the folks democrats call hypocrites because they use systems they rail against without voting accordingly (you vote against your own best interests???).

Democrats are foolish to rely on the numbers of additional moochers to reflect some kind of guaranteed vote buying scheme. It is as foolish as them relying on the income to be generated from ALL 'wealthy' americans who 'abuse the tax system' yet not examining their own 1040s.

[Ignatz]

--But there was no technical legal barrior from stopping them.--

Sure there is. It's called the Constitution. It gave Congress discrete, limited, enumerated powers and it also gave it the power of taxation to provide revenue for those powers and nothing more.
The idea that the Constitution gave the Congress the power to take over an entire industry, or by extension the entire economy, is absurd on it's face and is a position far more sweeping than the unlimited commerce clause arguments.

That we now have even some conservatives (not you) capitulating to the sophomoric idea that the 'general welfare' phrase in the preamble is some declaration of an all powerful taxation state is fairly infuriating and makes me despair of this thing ever turning around.

[Jane]

I have a question:

Obamacare is a tax.

The House is the only body with the right to tax.

Are they also the only body that can lower or cancel a tax?

[Jim Rhoads a/k/a vjnjagvet]

Many in the left are not happy, daddy. Certainly the Slate guy isn't.

[daddy]

"One thing though, moochers are LESS THAN 45% of the national electorate. It's a losing play, that's why Bam was so emphatic saying it wasn't a tax."

Thought Dennis Miller addressed this decently yesterday in this short rant where he said that if we keep losing it's time to "Shrug like Atlas," say WTF, and start taking care of ourselves.

Discouraging but very understandable.

[Jane]

Is the Slate guy a liberal? Now I like that piece even more. Did you read it Daddy?

[Porchlight]

Jim Ryan,

Clarice linked some more 3D chess analysis in the other thread:

http://lsolum.typepad.com/legaltheory/2012/06/the-decision-to-uphold-the-mandate-as-a-gestalt-shift-in-constitutional-law.html

and this was interesting wrt prior references to Marbury:

http://www.weeklystandard.com/blogs/marshalling-precedent-nod-predecessor-roberts-affirms-mandate_647945.html?nopager=1

[Jim Rhoads a/k/a vjnjagvet]

I don't know if the author is liberal, Jane, but Slate sure is.

[daddy]

"Did you read it Daddy?"

Not yet Jane.

Over now to read it but it will have to be something marvelous to cheer me up on this sad day.

[Melinda Romanoff]

daddy-

I'm getting more comfortable with the idea that Roberts has indeed threaded the needle and ripped Little Red Riding Hood's Grandmother's dental veneers off.

As another Rick and I exchanged earlier, "It's like a flamethrower in a crowded theater."

Oh, and it's really 21 tax hikes, per Drudge.

I believe he regally and royally effed iBama.

[Sue]

Sara,

During the Primary, I argued against the misinformation and lies about Romney. Today, I did the same thing

No you didn't argue. You called someone stupid and told them why you thought they were stupid. You choose the way you present your argument and then whine about criticism, not of your positions, but the way you present it. I called you a bitch, not because of what your position on Romney is, but how you presented it. And others have asked you to think about that and you refuse. So once again, carry on...

[Porchlight]

I'm guessing from the use of "mainstream" and "no serious doubt" that the Slate author (Tom Scocca) is a liberal:

This is why the challenge to the ACA, and its progress through the courts, came as a surprise to Democrats and to mainstream constitutional scholars: Three years ago, there was no serious doubt that Congress had the power to impose the individual mandate.

[Jim Ryan]

Hmm.

[Extraneus]

I don't understand the difference between a penalty and a tax. Roberts says that "no one" would doubt that the $50 penalty for buying a house with inefficient windows is a tax. Well I would. Unless he's saying a tax and a penalty is the same thing.

I thought that government taxed income and sales, for example, as a way to fund itself. A $50 penalty for inefficient windows is different. It has nothing to do with funding the government. In fact, since the government taxes energy sales, it actually penalizes the people who will do more to fund the government than those who use less energy.

I didn't read the Roberts opinion, but this penalty=tax reasoning seems flawed.

[Danube of Thought]

Taranto:

"So what we have here is another 5-4 decision, just like Bush v. Gore and Citizens United. But as a political matter, NFIB v. Sebelius is different in two important ways. The obvious one is that this time the left loves the outcome. Somebody will have fun compiling a list of quotes from lefties bewailing 5-4 decisions yesterday, then praising this one. You can start with Reich.

"The second difference is that the result in this decision is likely to be hated by people who aren't immersed in politics. The left hated Bush v. Gore for partisan reasons and hates Citizens United for ideological ones. People who aren't particularly partisan or ideological had no reason to care about either of those rulings. But this one will affect their health care, and a large majority of the public has long been hostile, and rightly so, to ObamaCare.

"What's more, Roberts's opinion has made a liar of President Obama, who in a 2009 interview with ABC News insisted that the mandate was 'is absolutely not a tax increase.' He even lectured the network's George Stephanopoulos, who had cited the dictionary definition of tax: 'George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition.'

"In 2008, Obama promised not to raise taxes on middle-class taxpayers. Oops. Maybe he can win back swing voters by telling them the word gullible isn't in the dictionary."

[Jane]

Mel,

I'm pretty much completely won over. I do think this could end up being much better for us than for them. GMAX is wearing off.

[Danube of Thought]

I see Roberts as saying "if people are dumb enough to support a new tax just because a bunch of politicians say it isn't a tax, they can't look to us for their salvation."

[Ranger]

I thought that government taxed income and sales, for example, as a way to fund itself. A $50 penalty for inefficient windows is different. It has nothing to do with funding the government. In fact, since the government taxes energy sales, it actually penalizes the people who will do more to fund the government than those who use less energy.

The congress has used tax policy as a way to incentivise and disincentivise behavior for a very long time. And it has been recognized as within congresses powers to do so for a very long time.

[Melinda Romanoff]

I think Gmax has swooned under his desk.

And rightfully so.

Probably broke some shoelaces to boot.

[Extraneus]

What the dictionary says:

tax  [taks]
noun

1. a sum of money demanded by a government for its support or for specific facilities or services, levied upon incomes, property, sales, etc.

2. a burdensome charge, obligation, duty, or demand.

I normally think of 1, while Roberts apparently thinks of 2. My bad, I guess.

[Jane]

Or is that "rubbing off"?

[Captain Hate]

I agree, DoT

[Ignatz]

For all those people who now explain that it's plain as day and perfectly within Congress's power and always has been to punish non compliance with a government demanded activity with a penalty that is now called a tax (except when it isn't, such as when the Anti Injunction act is raised) could you please supply me with your pre-ruling arguments that Barrycare was constitutional all along because of this long recognized power? I don't remember any but considering how obvious some people think it is now I must have just missed them.

[Danube of Thought]

Strange New Respect at the New York Times:

“'This could be a huge day in the evolution of Chief Justice Roberts as a great chief justice,' Laurence H. Tribe, the liberal Harvard law professor, said. Mr. Tribe, who taught Mr. Roberts, said he had not opposed his nomination because he believed Mr. Roberts was less of an ideologue than many charged. 'I have some sense of gratification,' he said."

[bgates]

I don't understand the difference between a penalty and a tax.

I think I do, and it might constitute a modified limited hangout of my earlier rage against Roberts.

If Congress regulates something and penalizes noncompliance, the end result is compliance. Suppose there was a $100 penalty for bringing a soda on an airplane - you couldn't walk up to the TSA, Big Gulp in hand, toss the guy a C-note, and continue to your seat with your sugary refreshment. If you tried that, you'd lose your hundred bucks and your beverage.

By taxing a given condition, the condition is allowed to stand. In this case, not having health insurance subjects you to Not Having Health Insurance Tax - but when you pay that, you still don't have health insurance.

The distinction would seem to vanish if you set the tax high enough, though.

[JonInVa]

I disagree that the dissenting opinion was the majority opinion before Roberts jumped ship. He was with the left the entire time. Ginsburg's dissent was aimed at Robert's essay on the Commerce Clause, which in her libtard mind, sets precedent for at least reigning in what Government can do under that Clause. She was basically pissed that he mentioned it, since they ultimately went with the taxation route. She wanted silence on the Commerce Clause, even though she agreed that the mandate can only apply as a "tax". That means her need to write a dissent and basically insult Roberts was because he set serious restrictive ideas down on paper for future courts to have to consider. Ironically, the "example" about the $50.00 fee (penalty or tax, or otherwise) shows exactly what the problem is with this interpretation as a tax - the idea that Government can now induce or attempt to coerce an individuals behavior under the guise of a "tax", so long as it does not become excessively punative. So technically, they could say that anyone who does not keep their cholesterol under 185 through good eating or taking drugs, could be fined say, $50.00 as a "tax". Or if you "choose" to drive a gas guzzler instead of a hybrid, you will be "taxed" $1000.00 per year until you get that car. Crazy azz Country we've become

[Melinda Romanoff]

Ig-

I defer to readings by my betters wrt ConLaw, but I can smell when someone's been outsmarted all day long.

iBama: It's not a tax, it's a mandate.

Roberts: It quacks. It's a tax. Own it. Oh, and Congress can no longer regulate everything, nor unfunded mandate the states.

Beat it.

[Jane]

DOT Was Tribe there when you were? And how's your knee?

[Chubby]

Porchight, after reading your link about Roberts and Marbury, I am thinking that Roberts could have easily voted Obamacare down on the basis of the Commerce Clause, but he didn't because he wanted to twist the knife. What were those words he mouthed to Obama? ---"NOT TRUE" --- so clearly he has historical issues with Obama's mendacity.

Now Roberts has placed Obama in a spot he could have not done simply by invoking the Commerce Clause. I'm sure he is going to relish the spectacle of Obama having to eat his words about Obamacare not being a tax. I'm sure Scalia, Thomas, Alito and Kennedy will as well.

[Sara]

Sue: Whatever. I sit here day after day and read the whines about stuff that holds no interest to me, but I don't say anything. I'll say what I want and the way I want. If you don't like it, don't read it. I'll chime in to correct misinformation anytime I see it, if I happen to know the correct answer.

It was a stupid remark and I called the person on it. Sorry if you don't like it. I'm going to call 'em as I see 'em.

[Chubby]

exactly Melinda

[Jane]

What were those words he mouthed to Obama? ---"NOT TRUE" --- so clearly he has historical issues with Obama's mendacity.

That was Alito

[Janet - Sorry about my horrible sentence construction.]

"NOT TRUE"

I think that was Alito.

[derwill]

So do I have this right?

The Supremes have declared that Obamacare is a tax bill.

Tax bills are filibuster proof. Ergo, only 51 votes will be required in the Senate to repeal the Obamacare tax bill.

The House will pass a repeal of the Obamacare tax bill, and it will go to the Senate. 20 Democratic senators are up for reelection, and will have to choose between voting to repeal the Obamacare tax bill or voting to uphold the highest tax increase in history on the poor and middle class.