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

[Melinda Romanoff]

Just beat it.

[daddy]

Just read it Jane.

Perhaps it is my funk, but I remain unpersuaded and unimpressed with Robert's decision.

Seems to me the Slate guy is simply pissed that the Commerce Clause bit got ruled Unconstitutional, nothing more.

Slate guys says:

"By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause"

If I understand the Slate guy he is pissed at the 2nd half of that statement: "while joining the Republican wing to gut the Commerce Clause"

I view that 2nd part as the correct decision.

The first part is the part I have a problem with: "By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law."

I personally, as a non-Lawyer, think that was a bogus call.

The Slate guy thinks that first part was brilliant because having done that "Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory."

I think that is an idiotic, inside the Beltway sort of conclusion by the author. To avoid an idiotic, "narrow partisan victory" Robert's pretzels himself into deciding the Mandate is something it's creators, voters, and solicitors swore up and down it was not---a Tax. That may not have created a sense of "a narrow partisan victory" in the Slate guys mind, but out in fly over land I sure think it did.

And it strikes me as completely unnecessary and irrelevant to our notion of the Law being the gal wearing the blindfold with the scales of justice in her hands. The Slate guys reasoning is that Robert's acted as he did in order to not come across as being partisan. My take is that Robert's lifted up the blindfold and did what he did precisely because of partisan considerations, not as a function of what the legal decision should have been.

And if Robert's was as clever as that Slate guys thinks he is clever, could he not have done what that Slate guy thinks is so clever while at the same timing ruling this thing Unconstitutional on both sides?

Since 24 hours ago nobody in America was able to come up with a ruling remotely close to Robert's revealed reasoning, Robert's reasoning obviously cannot have been a straightforward decision made in relation to a Common Man's understanding of the sense, the spirit, nor the words of the Constitution. That to me is grossly troubling. That to me diminishes Robert's ruling, the Court, and the Constitution. I may be wrong, but that is my opinion.

I remain unconvinced and discouraged.

[Sue]

Sara,

I'll say what I want and the way I want.

Of course you will.

[Chubby]

DoT, 4:16 EXACTLY

[Janet - Sorry about my horrible sentence construction.]

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.

I thought you responded that way because -

I'm upset. I've lost my doctor and my kids are probably going to lose their jobs. ???

[Sue]

Janet,

I think she meant the part when told me to eff off.

[Sue]

I remain unconvinced and discouraged.

Me too, daddy-o, me too.

[Chubby]

I was thinking as I typed that, I should double check that. shoulda, shoulda, shoulda...always obey the little voice :(

it is now time for me to stop typing for the day and defer to posters with sharper memories

[Ignatz]

I think I've finally got it straight now.

Obamacare being upheld in its entirety was a massive defeat for Obama and the Dems and we constitutionalists are fortunate to have dodged the bullet of having this unconstitutional monstrosity struck down in its entirety by those four dense conservatives who didn't realize Roberts' brilliant strategy.

I'm glad I now understand, but while I'm in this state of mind can I be pardoned if I hope no one with a bridge in Brooklyn to sell happens my way?

[Jane]

Now this is sad:

Glen Johnson ‏@globeglen

HEALTH CARE: Mass. Dems. organize a "thank-you Teddy" rally on Boston Common tonight in aftermath of health care ruling... #mapoli
Retweeted by jmartpolitico

I hope they bring their "Tax me more" signs.

[not_bubarooni]

There is not enough tar nor enough feathers for these 5 apparatchiks.

The republic is kaput.

[jimmyk]

Incidentally, my "couple hundred million" lost in the stock market earlier should have been "couple hundred BILLION." No doubt there were some winners, but collectively we have lost on this.

[Sue]

The prudential, reasonable thing to do would have been to strike down the ACA and tell Congress "We don't however rule today on the constitutionality of ACA as a tax," thereby leaving open that issue for Congress to try again if it wanted. What Roberts has done is rewrite the law.

RD Brewer writing at Ace's.

[Jane]

The first part is the part I have a problem with: "By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law."

Daddy,

I think Roberts was returning the issue to the electorate. Obama didn't run on Obamacare in 2008. He is in 2012.

So we can decide. Will we become socialists or not?

[Sara]

I'm upset. I've lost my doctor and my kids are probably going to lose their jobs. ???

That was in response to Sue, not to Enlightened.

[Danube of Thought]

Slate guy sees Obama winning the battle, Roberts winning the war. LUN.

[Sue]

Jane,

He could have done the same had he ruled like RD Brewer suggested.

[daddy]

I'm with you Iggy:

"Hey, the enemy just sunk 3 of our Aircraft Carriers!"

"Yeah, but look at how much ammo they used to do it, which means they can't use again."

[jimmyk]

Incidentally, this was the Slate article from last Friday that more or less predicted the ruling:

http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2012/_supreme_court_year_in_review/supreme_court_year_in_review_awaiting_a_decision_on_obamacare_.html

It doesn't call it a "tax," just a "financial incentive," but otherwise gets it pretty right.

[Porchlight]

The prudential, reasonable thing to do would have been to strike down the ACA and tell Congress "We don't however rule today on the constitutionality of ACA as a tax," thereby leaving open that issue for Congress to try again if it wanted.

I think that would be counter to established practice. Why not rule on the constitutionality of ACA as a tax?

Besides, it was explicitly argued as as a tax by Verilli in front of the Court during oral argument. So I think they would have been negligent not to rule on it.

[Rick Ballard]

"That to me diminishes Robert's ruling, the Court, and the Constitution. I may be wrong, but that is my opinion."

Daddy - I'm happy to second that and I concur with every word you wrote explaining it. As far as I'm concerned, we now have the exquisite pleasure of guessing what wind is whistling between the Chief Justice's ears as well as Kennedy's.

He's another fine HLS product - just like BOzo and ABO T1000. The defects are installed on the same factory floor.

[Sara]

"Hey, the enemy just sunk 3 of our Aircraft Carriers!"

More like they sunk our batteships but our carriers are still at sea and ready for the fight.

I've already had two emails from our Tea Party information committee. I imagine other Tea Party groups thruout the country are also mobilizing again in a big way. The "sleeping giant" and all that.

[Porchlight]

Kristol in the Weekly Standard:

As Lincoln put it in his first debate with Stephen Douglas, “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions.”

http://www.weeklystandard.com/blogs/november-6_647926.html

[Jim Rhoads a/k/a vjnjagvet]

Daddy and Ig. I think you are both focusing completely on the mandate/tax issue and ignoring that Roberts peeled off two of the four libs outlawing the state medicaid coercion gambit. My guess is those two votes would have not been forthcoming without the tax ruling. I do understand the desire to win outright and your frustration that Roberts did not pull the trigger having been assured of Kennedy's vote to strike down the whole mess.

[daddy]

"I think Roberts was returning the issue to the electorate."

Jane,

If he had simply overruled the Mandate because it was not a Tax, would it not have been returned to the Electorate in 2012?

I think so. Again I ask, who yesterday thought he was going to rule the Mandate was Constitutional because it could magically be transformed after the fact into a tax?

Sorry if I come across as snippy. Perhaps it was the proper decision but I sure don't yet see it.

It must have been a bummer today doing the radio show and knowing all along these 2 huge decisions were gonna' take place just after you guys concluded the show. I commiserate.

And here's words I doubt you'd ever think you'd see:

Free Harriet Myers!

Ha!

[centralcal]

He's another fine HLS product - just like BOzo and ABO T1000. The defects are installed on the same factory floor.

It would appear so, Rick. What a roller coaster day.

Man, oh, man - I wish we were having cocktails with Thomas and Alito tonight, so we could ask what the hell really happened?

[Porchlight]

He's another fine HLS product - just like BOzo and ABO T1000. The defects are installed on the same factory floor.

Now then, I think DoT would demur.

[jimmyk]

Also, FWIW, I've been told that technically the bill did originate in the House. The Senate took the “Service Members Home Ownership Tax Act of 2009 that had originated in the House, and "amended" it to make it the PPACA, and the "amended" bill passed the House 219-212.

I wonder if they routinely do that (take some random bill that originated in the house and "amend" it) just to cover themselves.

[Jim Ryan]

could he not have done what that Slate guy thinks is so clever while at the same timing ruling this thing Unconstitutional on both sides?

The 3D chess theory is that by giving Obamacare thumbs up as a big fat tax, he causes Obama to lose the election. So it's a three-fer: no more Zero, no more Obamacare, and no more broad commerce clause. If he had given Obamacare a thumbs down, this would have decreased the likelihood of a Zero loss in November.

Or so the theory goes. Pretty wild.

[Barbara]

From the opinion:

"It is not our job to protect the people from the consequences of their political choices."

Windy Daze @1:24 PM

If that isn't a slap in the faces of the democrats in general and the face of Obama in particular, I'll eat my tin foil hat.

[Sue]

Jim,

I ain't buying it. He [Roberts] is a big government guy. At least, that is my take on him after this morning's ruling.

[daddy]

Jim R,

You're probably right.

Dennis Miller says "when things like this decision happen that go counter to our wishes, it's an opportunity for growth...And to be P.O'd!"

He is a good source of angry humor and commiseration today. And he mentions he can't wait to hear Levin's take. Ha!

[Sue]

Also exempt from Obamacare "tax" for being w/out health insurance are members of Indian tribes

Wonder how many of us will become Elizabeth Warrens?

[Sue]

Also exempt are illegal aliens. Time to become an illegal? We are all Jorge/Rosita?

[Porchlight]

I wonder if they routinely do that (take some random bill that originated in the house and "amend" it) just to cover themselves.

I think they do, when they're being sneaky, if I remember the coverage from back then.

Look at how unpopular it was and how sneaky they had to be back when they wouldn't even call it a tax. Now imagine how unpopular it's going to be now that they have to call it at tax in order to justify its continued existence.

[daddy]

I like Sue's printed thing at 05:10.

That seems intelligent, easily understandable, and fair.

[Sue]

DrewM ‏@DrewMTips

According to Roberts Congress can't compel economic activity but it can tax that inactivity. That's a win?

[Porchlight]

daddy, they couldn't have declined to rule on the constitutionality of ACA as a tax. Verilli made the case for it in oral argument, so it had to be considered.

[Jane]

Who is RD Brewer?

[NK]

Ig-- you're a smart and honest man, so hear me out. First thing-- we are talking Con Law here NOT reality, so you have to cut the constitutionalists some slack. The Con Law error you are making is that you assume that the Taxing Power in Article I Section 8, Clause 1 and the 16th Amendment requires something to be in the "stream of commerce" to be subject to tax by the Congress. Not True! The stream of commerce requirement relates to power to regulate under Clause 3 (Commerce Clause). The taxing power is much broader, and is limited only by the explict provisions of Article I (i.e. uniformity and proportionality, where applicable). In one of my favorite cases, the oleomargarine case, the SCOTUS upheld a negative tax aimed at destroying certain food products, because the tax didn't run afoul of the Article I limits. The fact that the tax is oppressive or even stupid doesn't make it unconstitutional. The only Red Flag that Roberts' decision raises, may be the regulation by false tax cases. Congress can't disguise regulation as a tax where the Commerce Clause doesn't permit regulation in the first place. I bet Kennedy's dissent focused on those cases, I'll read the dissent tonight. I think the dissent is probably technically correct, because the mandate really is regulation rather than tax revenue raising, so Roberts made some constitutional sausage. Meh. Bottomline, Congress can tax you for breathing or even dying, limited only by the uniformity and proportionality requirements of Article I. Bottom line, in order to be subject to tax, it doesn't have to be in the stream of commerce.

[crazy]

Congress should tax stooopid judicial opinions like this one that have to rewrite the meaning of words to justify a decision the opinion acknowledges is wrong. We could call it the Roberts tax.

[Jim Ryan]

Daddy, yes, Levin is usually very good. I'll be tuning in tonight. This week however, he stepped in it, announcing that there is some blog he'd never heard of called volokh. Duh. It's only, you know, one of the premiere legal blogs where, you know, Randy Barnett blogs. Like Rush, Levin is both very smart and dumb as a post.

[Sue]

Jane,

One of Ace's co-bloggers.

[Jim Ryan]

TODAY on NPR:

NPR LADY: Randy Barnett, your critics say your case for the unconstitutionality of the bill was made up out of whole cloth.

BARNETT: Well, today the Court agreed with every single one of my arguments.

Ha!

[Jim Rhoads a/k/a vjnjagvet]

My most difficult problem as a trial lawyer and as a mediator was trying to guide very intelligent and discerning clients like Ig, daddy and Rick through the messy litigation process in such a way as to accomplish their realistic business or political goals. Often a court case was only a step in a long process toward the ultimate prize.

Keep in mind that altering an arc in the law that has had nearly 80 years of momentum has happened only a few times in the entire history of the Court. I question whether a simple five/four decision along purely ideological and political lines -- especially given the reality of what lawyers and judges have been taught during my lifetime -- could survive a Jefe victory in 2012. Now, a big turd has been left in the Acme punchbowl which makes his reelection much less possible.

[rse]

Sue-I just want you to know how offensive and inappropriate I found that remark made to you earlier in the day.

I would fight on your behalf but tactically I think that would be a mistake.

Just scroll on by.

Having a potty mouth is akin to being tacky in my book. Both are yucks.

Back to work. Red did say customers were coming in today angry about the ruling. I suspect that will help Jane's turnout.

[Porchlight]

Randy Barnett is awesome.

[Jane]

One of the victories is a real limitation of the commerce clause which was wildly out of control. The second one is the states rights issue.

I do think it matters that they are forced to call it a tax. People hate being taxed.

Maybe I'm an idiot looking for a silver lining.

[NK]

Crazy@5:43-- I think that Roberts Tax may run afoul of the Uniformity Clause.

[Sue]

rse,

I'm a big girl. I appreciate the sentiment but I can handle myself, in real life and on a blog. And I sometimes have a potty mouth myself. So... ::grin::

[Sue]

Jane,

You aren't an idiot. I think we all want to see the silver lining. Some are able to see it sooner than others.

[Sue]

If this decision costs Obama the election, then silver lining sprinkled with fairy dust will be all the rage.

[daddy]

Dennis Miller has had some excellent callers today, many very smart folks like the posters here who are well beyond me in seeing the silver lining.

Dennis amusingly likens what has happened to him since he first heard the decision this morning to the 5 Stages of Death, and he's not exactly sure where he is right now, somewhere past denial but not yet to acceptance.

He says it much better and funnier than that but very funny and holding some good kernels of truth. I really am happy we get him out here on the Radio.

[Jim Ryan]

Is Roberts the kind of guy who could think in such a Machiavellian way?

[crazy]

NK@5:51-- You're undoubtedly correct, but please educate me on how Roberts' interpretation of the mandate doesn/t run afoul of the Uniformity Clause.

[NO_LIMIT_NIGGA]

In his first term, the signature accomplishment of President Obama and the Democrats was to pass the largest tax increase in history, without any Republican support, in the guise of protecting Americans' "right" to health care:

Patient Protection & Affordable Care Act (P-P-CACA)
- Justification: "Since everyone in America needs health care, the government should dictate what health insurance you have."
- Will impose a penalty tax on everyone who doesn't have health insurance, or who has health insurance that is too good
- Ultimate goal is "Medicare for all"

If elected for another term, perhaps President Obama and the Democrats can force through some companion bills to protect even more "rights" (none of these bills would get any Republican support, either):

Help Americans Habitate Appropriate Homes Act (HAHAHA)
- Justification: "Since everyone in America needs shelter, the government should dictate where and how you live."
- Will impose a penalty tax on everyone who doesn't have a home, or who has a home that is too nice
- Ultimate goal is "Public Housing for all"

Transcontinental Required Optimized Larder Organization & Lowering Obesity Law (TROLOLOL)
- Justification: "Since everyone in America needs food, the government should dictate what you can eat."
- will impose a penalty tax on everyone who is overweight and out of shape, or too thin and healthy
- Ultimate goal is "Food Stamps for everyone"

Omnibus Measure Guaranteeing Wage & Trade Fairness (OMGWTF)
- Justification: "Since everyone in America needs to work, the government should dictate what your job is and how much you get paid."
- Will impose a penalty tax on everyone who doesn't have any income, or who has an income level that is too high, or who has the wrong kind of job (banker, guitar maker, oilfield worker, etc.)
- Ultimate goal is "Work shall set you free"

[JM Hanes]

Hi, Ignatz!

"[C]ould you please supply me with your pre-ruling arguments that Barrycare was constitutional all along because of this long recognized power?"

Happy to oblige. Quoting from myself back in November '11, after calling the mandate "one of the worst vehicles for attacking the expansion of commerce clause powers," for assorted reasons:

I've always thought the 10th Amendment argument was the best constitutional bet here, despite the widespread dismissal which greeted it early on. I hold out some hope for the Medicaid challenge, even if it hasn't fared well to date. I think there is a much less murky argument to be made against the imposition of a federal burden on individual states by virtual fiat and the unequally punitive consequences of withholding grants from some states and not others.

And again, back in March, myself!

If it is within the government's constitutional power to incentivize behavior with tax credits, how can it not be within its power to disincentive behavior with penalties?
...The argument against the mandate as an exercise of commerce clause powers relies on challenging the unprecedented nature of "forcing" citizens to actively engage in commerce. The law itself, however, does not, in fact, compel anyone to do so, i.e. it is not illegal to go without insurance.... You will only be breaking the law if you refuse to pay the penalties assessed as a result. That is the only form of legal non-compliance implicated here. You are being compelled to pay a fine, you are not being compelled to make a purchase, as the opponents of Obamacare assert.... 

In a constitutional context, I don't think this is a distinction without a difference.

I certainly hoped that the Court might toss the whole thing, but I also tend to believe that Justice Roberts understands the long war. Drafting a Commerce Clause opinion either way meant running a veritable gauntlet of double edged swords (which I'll refrain from revisiting here). Why not effectively limit its scope by simply declaring it an insufficient basis for a challenge, and thus by extension, insufficient for the government's own case. Along the way, he established that there are limits to the strings that the Feds can attach to funding, and that a tax is a tax is a tax, no matter how progressives try to spin it. Taxes originate in the House, and every two years we get a chance to duke that out, district by district, where even bluest blue California can send Republicans to Capitol Hill.

All things considered, I do think there are some silver linings in this cloud.

[cboldt]

So, if the federal government orders me to buy swiss cheese, it's unconstitutional - some sort of encroachment on liberty.

But, if it orders me to buy swiss cheese, and taxes me if I don't buy swiss cheese, it becomes constitutional. The unconstitutional direction of my freedom becomes constitutional if the feds take my money, too.

[Jane]

I question whether a simple five/four decision along purely ideological and political lines -- especially given the reality of what lawyers and judges have been taught during my lifetime -- could survive a Jefe victory in 2012. Now, a big turd has been left in the Acme punchbowl which makes his reelection much less possible.

I'm just gonna let Jim speak for me. He has laid out the victory. It's up to us - citizens. So get off the bloody couch!

[Sara]

Having a potty mouth is akin to being tacky in my book.

I agree and that is why I immediately apologized. It was wrong of me to use that kind of language and I meant my apology sincerely.

[Jane]

Yay!!!!! JMH! Yippeeeeeeeeeeeeeeeeee!!! So good to see you!

[Clarice]

JMH!! How nice to have you and your bright thoughts here again!!!!

[Sara]

I do have a question. It is my understanding and has been supported by several commentators on the news that the penalty/tax/or whatever it is called is 1% of income. Is this wrong or right? I think I heard it first during the discussion by Megan Kelly and the lawyers she had on.

[Beasts of England]

Those damned right-wing justices! Oh, wait...

Taxes, Taxes, Taxes! IRS, IRS, IRS!

I guess I'm no longer self-insured, huh? No problem, I've been wanting to 'retire'. Or maybe make about $75k per year - whatever the maximum is to get everything for 'free' - and then live off of my assets and investments.

Yea, Obama! Four more years, Four more years! Forward! Forward! Forward!

(Better send my check to the DNC now!)

[NK]

Ig/cboldt-- Below is a brief quote from Roberts' decision that addresses the difference between taxing and regulation. Call it a shell game, distinctions without differences, but it is established Con Law:
“The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we ab- stain 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”).”

[daddy]

Levin: opening comment.

"Just a few hours ago Attorney General Eric Holder was held in Contempt, and this morning John Robert's and 4 other members of the Supreme Court held you in contempt as well...This Supreme Court decision is lawless, absolutely lawless."

Just for the record, of the Talk Show guys, Rush, Levin, Dennis Prager and Dennis Miller, they all think this is an awful decision.

Didn't hear Hannity or Beck but I can guess they think similarly.

[Beasts of England]

Perhaps this is a good motive for us all to seek out our 1/32nd Cherokee ancestors.

Posted by: AliceH | June 28, 2012 at 02:37 PM

That applies to me! So am I happy that I'm going back to work, or sad that I'm not getting everything for 'free'? I'm confused...

[Rocco]

Welcome back JMH...you were missed!

[daddy]

JMH, JMH, JMH, Woo Hoo!!!

Haven't even read what you wrote yet but like Jane am super happy to see you back at JOM!

There's the Silver Lining I was looking for:)

[JM Hanes]

Oh jeez! How to make an entrance!

Couldn't preview because the servers are indeed, sorely taxed today. Shall I go for the do-over in the installments Typepad seems to be demanding, or wait till later in the hopes of some abatement?

Glad to see you guys, too!

[Beasts of England]

Fine work, No Limit! OMGWTF, indeed.

[Sara]

BofE: Remember that if you retire, you end up on SS and by extension Medicare. Then you face a new set of problems, like I am today, with doctors who say they will no longer service their Medicare patients.

[derwill]

Will we become socialists or not?"

This. What do you want to be, Americans? Free men or government serfs? We've been living a lie for a long time now, pretending that we've been able to keep our liberty, while at the same time ceding to the government ever more control over our lives, and thinking what? That the government was going to stop doing this of its volition? Criminey, some of the most sweeping socialist programs of my lifetime have been enacted by Republicans. And now we should be shocked that nine lawyers (lawyers!) refused to save us from ourselves? In the end what does it matter if Roberts did this out of cowardice or because he's playing 3 D chess? The end result is that the onus has been thrown back to We the People, which is where it should be.

Will we become Socialists, or not?

The Constitution has always been nothing but words on a piece of paper. It is We the People who can either imbue those words with a power to preserve our liberty, or render them impotent by selling our freedoms in exchange for bread and circuses and "free" health care. Even from the very beginning the founding fathers understood that they gave us a republic, but it was going to be up to us to keep it.

[rse]

Jim Ryan-the answer is yes. You simply do not do what he did at HLS unless you have an ability to essentially come up with arguments and points even your profs have not heard of.

I am assuming they have blind grading. The profs will give out points based on who wrote best exam, 2nd, etc. A curious prof can post a note and have Student ## come by. Only when they walk in will he or she know who booked the class and goes with the #.

When you get a student who can do that consistently, that's not something a prof can teach you. You are coming up with original arguments on your own.

Roberts must have been amazing in that respect.

[Sara]

Is it any wonder people do not understand. Fox just said that Romney is running from Romneycare. Not once have I heard him "run" from the Massachusetts health insurance law. He vetoed provisions he thought were onerous, but over all he has stood by the MA program because he believes this is a state issue and absolutely not a Federal issue. But, here is Fox promoting that Romney is "running" from the MA program. This is a lie.

[rse]

Welcome back JMH. We have missed your insights and sense of humor.

Hope you are well.

[centralcal]

What a day, and JM Hanes is back too! Howdy!

daddy: Clarice posted a very thoughtful piece by Ken Cuccinelli on the other thread that might interest you.

[Sara]

JMH: So so glad to see you.

[Jim Ryan]

RSE, okay, but smart is one thing and Machiavellian action is another. Could Roberts have changed his mind in order to cost Zero a few points in November? Zero keeps calling Roberts. Roberts gets fed up, decides to play hardball. "Okay, he wants me to uphold his damn law, fine. I'll uphold his damn law alright...." Roberts switches sides and rewrites his decision with the intent of hanging the tax around Zero's neck and costing Zero the election. Yes, he's smart. He gets all three: rein in the Commerce Clause, trigger the eventual demise of Obamacare, and get Zero out of office.

It's really way out there, this 3D chess theory. If Roberts is not that kind of person, that would count against the theory.

[Jim Ryan]

Hi, JMH!

[Jim Ryan]

Levin is reading from Roberts's decision. Roberts seems to have said it was not a tax (for the purposes of the anti-injunction issue) and that it was a tax. Levin takes this as evidence that Roberts's decision is very poor.

The 3D chess crowd could take it as evidence for their view. Roberts rewrote his decision but didn't manage to clean it all up. He initially wrote the decision with the notion that it was not a tax but wasn't able to revise it entirely after changing his mind.

Bizarre if true.

[NK]

JimRyan@6:34-- your second paragraph did not happen. Period.

[JM Hanes]

I'm going to go for a total, unpreviewed do-over, sans tags, because that was like typos on steroids.

Hi, Ignatz!

"[C]ould you please supply me with your pre-ruling arguments that Barrycare was constitutional all along because of this long recognized power?"

Quoting from myself back in November 2011, after calling the mandate "one of the worst vehicles for attacking the expansion of commerce clause powers," for assorted reasons:

"I've always thought the 10th Amendment argument was the best constitutional bet here, despite the widespread dismissal which greeted it early on. I hold out some hope for the Medicaid challenge, even if it hasn't fared well to date. I think there is a much less murky argument to be made against the imposition of a federal burden on individual states by virtual fiat and the unequally punitive consequences of withholding grants from some states and not others."

And again back in March, myself, (all over again!):

"If it is within the government's constitutional power to incentivize behavior with tax credits, how can it not be within its power to disincentive behavior with penalties?

"...The argument against the mandate as an exercise of commerce clause powers relies on challenging the unprecedented nature of "forcing" citizens to actively engage in commerce. The law itself, however, does not, in fact, compel anyone to do so, i.e. it is not illegal to go without insurance.... You will only be breaking the law if you refuse to pay the penalties assessed as a result. That is the only form of legal non-compliance implicated here. You are being compelled to pay a fine, you are not being compelled to make a purchase, as the opponents of Obamacare assert.... 

"In a constitutional context, I don't think this is a distinction without a difference."

I certainly hoped that the Court might toss the whole thing, but I also tend to believe that Justice Roberts understands the long war. Drafting a Commerce Clause opinion either way meant running a veritable gauntlet of double edged swords (which I'll refrain from revisiting here). Why not effectively limit its scope by simply declaring it an insufficient basis for a challenge, and thus by extension, insufficient for the government's own case. Along the way, he established that there are limits to the strings that the Feds can attach to funding, and that a tax is a tax is a tax, no matter how progressives try to spin it. Taxes originate in the House, and every two years we get a chance to duke that out, district by district, where even bluest blue California can send Republicans to Capitol Hill.

Silver lining &tc. If I screw up again, then I screw up again. [Something Walt Whitman didn't say...]

[Jack is Back!]

daddy,

Yes, Roberts is smart enough to do a "Prince" on Obama. Who do you think is smarter, more clever, more Federalist, more limited government? Do you really think John Roberts, who by the way, Obama, Biden and Reid voted against in confirmation, has now decided to side with the left because he is a "big government guy"? Come on!

He has effectively turned the regulatory powers of Congress upside down and at the same time called out the Dems and Obama on taxes.

And RalphL, who is most affected by these taxes? The moochers, of course. I don't know many working stiffs who do not have health care either through employers or on their own. There may be a few million like young, healthy workers who rather use the premiums for car payments or an apartment with a pool but most of the uninsured are the type who don't pay taxes UNTIL NOW.

[daddy]

Just as a reminder, here is Senate Majority Leader Harry Reid telling us that Paying income tax in America is Voluntary.

[bgates]

It is not our job to protect the people from the consequences of their political choices.

Except in Alvarez, where it was their job to protect people who lie about being war heroes from the consequences of the people's political choices.

Or in Arizona, where it was their job to protect people whose presence in the country is a violation of the law from the consequences of the people's political choices.

Or in Boumediene, where it was their job to protect members of fucking al Qaeda from the consequences of the people's political choices.

Or....

[JM Hanes]

Jim Ryan:

"Roberts rewrote his decision but didn't manage to clean it all up."

Well, the Chief Justice and I have something in common, so there's that.

[bgates]

Who do you think is smarter, more clever, more Federalist, more limited government?

Roberts, Roberts, me, me.

[daddy]

"the Chief Justice and I have something in common"

LOL!

[Rick Ballard]

Jim Ryan,

I score it null wrt the Presidential race. The people who haven't yet decided are LIVs (dullards) who will never bother to distinguish the excruciatingly boring details which distinguish Romneycare from Obamacare.

OTOH - I score it quite favorable to the Tea Party, both at the state and at the CD level. It provides a real stimulus to action which was somehow left out of the ABO T1000 Goldilocks Option (no principles required) program.

Overall, the economy continues to drive this election and the decision rates no higher than an opening pawn moved to open a lane.

[Extraneus]

It is not our job to protect the people from the consequences of their political choices.

Uh... Hmmm.... I'm lost. What's their job again?

[Ignatz]

--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”)--

I find that a less than compelling argument and somewhat short of settled Con law.
I'm only somewhat surprised Roberts didn't cite Franklin's essay on farting as well.

[NK]

EX-- John Roberts testified at Confirmation that his job is to be an umpire to decide what a statute means or what the Constitution permits. He's done his job here.

[Melinda Romanoff]

Hi JMH!

[bgates]

I'm only somewhat surprised Roberts didn't cite Franklin's essay on farting

He can't be bothered with antiquated irrelevancies like the Federalist Papers, but citations to Ace of Spades' "Stuff the Founders Said" are ok.

[bgates]

John Roberts testified at Confirmation that his job is to be an umpire to decide what a statute means or what the Constitution permits

I didn't recognize at the time that it was either/or.

[Ignatz]

Again and maybe I should scream this to get it to sink in, the issue isn't taxation. The Constitution gives congress unlimited taxing power but strictly limits the enumerated powers on which that power can be unleashed and those powers are not found in the preamble.
Please point me to the article or clause which provides congress the power to effectively force people to engage in commerce they do not choose to engage in? We know it isn't the commerce clause. The law was not written in a vacuum. The intent of the tax is to coerce people to buy health insurance or punish them for not doing so. What power enables congress to force me to engage in commerce I do not choose to and how is this penumbra a win for limited government principles?
Can someone point me to a previous tax that was not an incentive but rather a penalty to coerce behavior from the citizenry and if such exists why didn't Roberts cite it and are its constitutional chops as feeble as this mandate?

A separate issue and one I do not concede is calling this fine or penalty for uncooperative behavior a tax. Roberts' confusion or duplicitousness, hard to tell which, on this point is pretty telling.

[(Another) Barbara]

We'll know soon enough whose November punchbowl got "turded" by Roberts. The horserace polls to be done in upcoming days and weeks will likely erase all doubt.

It's a little difficult to keep chins up and hopes alive when every radio news outlet I've turned to is heralding the decision as a huge victory for Obama and the Dems. But perhhaps the Independents will discuss this at the dinner table tonight, trying to fathom all the complexities and implications of Roberts's chess game.

[NK]

Two Franklin quotes are incredibly apt concerning liberty in a Republic with elected representative government. "Death and Taxes" and his statement to the woman outside Independence Hall who asked what kind of government the framers gave us Franklin answered "A Republic, if you can keep it." Preserving the Republic against tyranny is OUR job. Always has been always will be. The constitution doesn't guaranty liberty, John Roberts doesn't guaranty it. We do, with our votes, and God Forbid, someday liberty may have to be defended against domestic enemies with more active means. I'm looking at you Bill Ayers.

[JM Hanes]

JiB:

"There may be a few million like young, healthy workers who rather use the premiums for car payments or an apartment..."

...who can now do so till they're 26!