Powered by TypePad

« Let's Play Two! On To Holder | Main | Zimmerman Back In Court Today »

June 29, 2012

Comments

Melinda Romanoff

jimmyk-

Yes, there are. And so is Ezra Klein. So that covers two sides of the left.

Sara

If it isn't a mandate but a tax, how do the waivers play out. Can you waive thousands from paying a tax that the rest of the population must pay?

I know that we "waive" taxes on income for military serving in a combat zone, but I always felt that was in deference to the idea that putting your life on the line was paying your share. But is waiving taxes that everyone else must pay for certain civilian groups done? I feel like I should know this, but don't. It seems it is one thing to waive groups from having to participate in gov't health insurance, and quite another to force everyone to pay a tax for not participating, while they get a waiver so they don't have to participate. Would they then not have to pay the tax for not participating?

Sorry, this thing is so convoluted, it is hard to ask a nonconvoluted question.

Rick Ballard

jimmyk,

Here ya go.

The bitter tears of victory.

The "Roberts Five"? Time will tell.

jimmyk

To clarify: All I'm hearing on the left is high-fives over the big victory. Of course I live in the heart of lefty looneyville.

As an example, last night we went to see "As You Like It" in Central Park. At the end, Oliver Platt changed Touchstone's lines as follows (more or less):

I knew when sevennine justices could not take up a quarrel, but when the parties were met themselves, one of them thought but of an If, as, 'If you said so, then I said so;' and they voted five to four, shook hands and swore brothers.

Of course this was greeted by cheers from the crowd.

jimmyk

Ok, thanks for the lefty links. The mindless high-fiving on the Upper West Side is just getting under my skin.

centralcal

jimmyk: here is the Slate link:

Obama Wins the Battle, Roberts Wins the War

Ignatz

--Since there's no constitutional limit on the power to tax (if I'm mistaken here, someone tell me what it is; I've been asking this question a lot) then the solution is in the political process not the court.--

The question is how does one define "the general welfare". Butler is a good place to start.
Madison had a restrictive and I believe correct view of the power.
The courts since Butler less so although there seems to be precious little directly on point.

Ignatz

--The mindless high-fiving on the Upper West Side is just getting under my skin.--

If that's what does it I'd have figured you were turned inside out by now.

matt

It's not unfair, it's different. It's now a tax when the people who passed the bill unanimously denied that it was a tax.

Taxes have to be voted upon as taxes. Not mandates. Not baloney sandwiches. The Democrats and the president committed a fraud and misrepresentation.

I would think there is some legal standing for this to move forward either in Congress or in the courts based upon the ruling by Roberts.

James Brown was the hardest working man in show business. Got to see him several times over his career, and even took the kids to see him when they were young. I wanted to make sure they had seen some of the greats; Brown, Ray Charles, Etta James, B.B. King. Heck, even Tony Bennett and a number of others.

Their musical tastes are much more grounded than most of their peers.

BeeKaay

Both Obama and Obamacare must go!

But one won't happen, maybe both.

The RINOpublican party passed Medicare part D. No screams about increasing socialism there.

And we're going to count on the RINOpublican party to repeal Obamcare? Now THAT is funny.

Will they also repeal Medicare part D? No.

Carol Herman

There is NO conservative court in America! The jerks you find, and label "conservative," really don't get along. And, don't share philosophy.

Sure. Rehnquist was a conservative. And, he could never muster more than 3 other votes! Anthony Kennedy AND Sandra day O'Connor played Rehnquist like a fiddle.

And, Roberts? He just played BOTH SIDES! He was in the "majority," dissenting against ObamaCare. But just before Monday morning, when HIS opinion was to be released ... he assigned himself the "new" majority position ... and tacked on the 4 liberal judges.

Liberals actually have a working judicial model. Conservatives? NO, YOU DON'T! And, now? You never will.

Tell me how does anyone trust Roberts, again? IF he comes out early to be on the liberal's side ... his writings will be viewed with enough hostility ... that he will have to go searching for support.

Sure. There's always Sandra Day O'Connor's PLASTIC REINDEER! Her legacy to the court.

Plastic reindeer should be awarded like Oscars ... to all the phoneys who come along saying they really have no "political point of view."

Someday? There will be stories.

Because Roberts took his cohorts for quite a ride!

Yeah, it's a tax.

Because? It taxes the brain.

JM Hanes

Jane:

"So if going into yesterday you had to choose one, which one would you choose?"

A rather clarifying question:

Contra the lemonade I've been making with the Roberts opinion, I'd put getting rid of Obamacare over getting rid of Obama -- assuming we had a Republican majority on the hill, although I might even consider it with a split. We've tagged the bill Obamacare, but it's really Pelosicare. Obama would have accomplished virtually nothing without the Democratic majorities in both Houses of Congress. They're the ones who wrote the bill, and upended the legislative process to pass it. Although the Prez might take his veto power to new heights, a Republican majority would not tolerate his brazen circumventions or his arrogation of other powers to the Executive and they've got a lot of tools in their non-legislative kit to put a stop to that.

In contrast, the massive bureaucratic architecture Obamacare puts in place, and even more consequentially, the regulatory powers it vests in executive branch appointees are a lot more insidious than 4 more years of a President sure to be mired in controversy. I believe opponents of Obamacare have concentrated too exclusively on the fines imposed on individuals by the mandate. As we have seen with the EPA, the Executive Branch's power to impose penalties on selected targets may be the most effective tool, bar none, for centralized statist control and direction. Secretary Sibelius' power, ceded to HHS by Congress, to waive implementation of law and regulate with the force of law is a clear and present danger to representative Democracy.

The worries about Roberts putatively endorsing an unlimited power of taxation strike me as overwrought. That power is, in practice, limited by the public's tolerance for government picking their personal pockets, in a way that penalties imposed on, say, one industry or another are not. I've always thought that the worst possible SCOTUS outcome would be to strike the mandate while leaving everything else intact. It will be hard to argue against repealing a massive tax increase. If the mandate were already off the table, the argument for repealing the rest of the bill would get a whole lot harder.

AliceH

--Will they also repeal Medicare part D? No--
It's my understanding that Ryan's budget, which will offer those 55 or younger to opt for alternatives to medicare as a 'retirement health care provider', would address your point.

That is, if your point were in fact an honest request as to whether there were evidence to contradict your impression of some sort of hypocrisy. Somehow I don't think that was your actual intent.

rse

matt-When I was in law school, James Brown would come to the football games and then put on a mini-show in front of the student section before the game.

It was a long way from Division 3 walk-on football with kazoos at halftime and more interest on campus in frisbee golf.

jmh-We can't take full implementation of what Common Core will do to higher ed and K-12 and survive in any form contemplated by the Constitution. It could almost be described as what can we do to make sure our citizens will be permanently dependent on state largesse as adults.

Thomas Collins

JMH, I pick getting rid of Obama. First of all, if Obama wins a second term, even if the GOP keeps the House and takes the Senate, it means at least 48 percent of the electorate is fine with NannyStatism (I'm thinking that although Obama could pull out an Electoral College victory with 48 percent of the popular vote, he can't with below 48 percent). Second, Obama can do a lot of damage in the next four years by governing by decree, not to mention that he will neglect our military (with the possible exception of our drone program).

By the way, a thanks to all the SCOTUScritters. It appears your opinions on ObamaCare have brought JMH back to JOM (I hope for more than a temporary visit).

Jane

JMH,

I'm still stuck on the tax thing. Taxes MUST be passed in the house. This one wasn't. Why is it legal? And my bigger question is why can't the house simply repeal the tax?

Thomas Collins

Jane, did the Senate attach its bill to a skeleton House bill that included taxes? I'm not up enough on the legislative history of ObamaCare to know the answer, but that's a possibility.

Dave (in MA)

This is linked off Drudge right now with the title "REVEALED: SECRET WIRETAPS", but I can't get to it:
http://www.weeklystandard.com/blogs/issa-puts-wiretap-details-congressional-record_647986.html

Melinda Romanoff

Breaking-

Katie Holmes and Tom Cruise divorcing.

Resume discussion following feigned gasps of shock.

Sara

Romney Campaign raises $4.6 million from 47,000 donors in 20 hours after Obamatax SC ruling.

jimmyk

That power is, in practice, limited by the public's tolerance for government picking their personal neighbor's pockets.

FTFY? That is the aspect that makes it worrisome. As long as nearly 50% feel like someone else is paying for it, there's virtually no limit.

Welcome back!

Jane

I don't know TC, but what would stop them from repealing those taxes now?

Dave this is Neo's link.

derwill

"I've always thought that the worst possible SCOTUS outcome would be to strike the mandate while leaving everything else intact."

This was my worry, too. I think keeping the act while getting rid of the mandate would have left us with an even worse mess, and it probably would have made the act harder to repeal legislatively by taking away one of the things that the voters hate most about it, while leaving the things they like intact). The act without the mandate was a sure road to single payer. And maybe I'm remembering it wrong, but I don't remember a whole lot people predicting that the entire law would be tossed out along with the mandate. I wonder if we conservatives would feel as disappointed and betrayed this morning if the swing vote had turned out be Kennedy, rather than Roberts. We came a lot closer that we expected to seeing the whole act overturned and that does sting.

Sara

Pelosi: Calling Obamacare a Tax Is Just “Washington Talk” That Americans Don’t Really Care Much About (Video)

jimmyk

Jane, the bill did start in the House as some other bill, was "amended" in the Senate to become the PPACA. A technicality, but seems enough to get them off the hook.

daddy

Good Morning.

Haven't read a word yet.

Put on the headsets and caught part of hour 1 of Rush. LIke me he continues to see this as a disastrous ruling and is calling it fraud by John Roberts. I concur. During catch-up I'll find if you guys think the same.

Took my coffee cup and radio headset and the dogs up the street and sat on the lawn of my Tax Attorney friend.

He is bummed. He is too busy to keep up with the Legal arguments we banter here all day long, but he has to deal with the consequences. He said he knows this increases some taxable rate come 2013 from 35% to 39%, and having looked at the Tax implications of Obamacare a few months back, he started reciting the litany of things he is now going to have to deal with in trying to help his clients this thing. He is very depressed.

Said he had many phonecalls yesterday after the ruling from clients about how is this going to effect them and how does he suggest handling this.

He said that one of his biggest clients, a wealthy business owner, told him that this decision is a job killer. Said that he was waiting for Nov 6th to decide if he was going to do any hiring but as of yesterdays decision he will not because it is not worth it for him to do so. Friend said that that is going to ripple through the community.

Okay, enough blather. Worth remembering that Clarence Thomas is a decent friend of Rush Limbaugh.

laura

Does anyone know the law that prohibits turning away people from emergency rooms?

Captain Hate

Katie Holmes and Tom Cruise divorcing.

Sylvia/Katty Kattenberg hardest hit.

Does that mean Katie Holmes leaves the cult of Scientology?

bio mom

Obama in a second term would be a disaster. He has demonstrated again and again his willingness to rule by fiat.

Jim Rhoads a/k/a vjnjagvet

There is nothing I can see in Robert's opinion that expressly or impliedlyincreases the scope of the federal government's taxing power. It remains as limited as it was before the NFIB opinion -- not very. There is nothing about the taxation portion of the case which expands or contracts congress's power to raise revenue.

What is clear to me is that NFIB represents the Gettysburg of the Wickard doctrine. Contrary to some lefty "expert" babbling noted above, the commerce clause ruling was not dictum. It was necessary to the decision of the case because the government raised it as its primary justification for the constitutionality of the ACA mandate. That justification was shot down in no uncertain terms. The government's secondary justification -- that the mandate was valid as a "necessary and proper" exercise of congressional power -- was also necessary to reach and also shot down conclusively. It was only with regard to the third justification, the taxing power (which to most if not all commentators seemed clearly a "makeweight" argument) that Roberts joined the liberals to validate the mandate. The mandate therefore was upheld by the skin of its teeth.

It was the first and second justifications that got all the press prior to the decision, and they were indeed shot down contrary to the views of the legal academic community.

JM Hanes

In the context of my previous context, I believe the Medicaid opinion deserves a lot more attention. Having ruled that the Commerce Clause is not sufficient to the argument either for or against the Obamacare mandate, the Court proceeded to severely constrain the federal government's power to penalize states who reject federal incursions on their sovereignty. It's actually rather remarkable that the Court voted 7 to 2 in taking this emblematically conservative position.


Thomas Collins:

Smooches to you too. :-) Alas, I think a lot more than 48 per cent of the electorate doesn't, and won't ever, recognize the end state that seems so clear to us. We disagree on whether Obama himself or Obamacare gets us there the fastest. Presidents come and go, the bureaucracy of Obamacare will be fiendishly difficult to rout even if we were to repeal the bill tomorrow. The fact that such incremental expansions almost always survive is how we ended up where we are today.

Melinda Romanoff

Jane-

If you recall the PelosiCare bill language was swapped out of a House tax bill that had already passed both houses but had not gone to reconciliation. This was the resultant bill that was voted on as "deemed passed" by the House. So they had the getaway car running at the curb, they just car-jacked it over their own political cliff.

As far as the etymology of how CJ Roberts got to "It's a Tax.", I go at it a bit differently.

I'm accepting his logic as GIVEN. As in proof-style given. From that angle, what we are looking at is first time ever Tax, as passed by Congress, on inactivity. Every other tax passed by Congress has been on some sort of activity, never, ever before on inactivity. CJ Roberts has put on notice the first citizen to be billed for inactivity to test that first time tax for it's constitutionality under Article I. The question I ask is, will that test survive contact with the court?

He teed up the ball. Who gets to swing at it?

[That's my non-ConLaw opinion. So there.]

Jane

Does anyone know the law that prohibits turning away people from emergency rooms?

I don't know the name laura but it precedes Obamataxcare by many years, and pretty much led to it.

Captain Hate

Game on Stedman http://minx.cc/?post=330587

derwill

I love they way the Left thinks.

60% of the country hated Obamacare before it was passed, they hated it after it was passed, they hated it so much they gave the Repubs a landslide victory in 2010, they hated it when the MSM was telling everyone that it was constitutional, they hated it after the hearing when it looked like it might not be constitutional after all.

But now, after the Supremes just told them that the law they've hated on since before it was even passed in the dead of the night, after bribes and by making a mockery of the legislative process, and without a single bipartisan vote, is constitutional only because the mandate is a tax and that tax just happens to be the biggest tax hike on the poor and middle class in history--yet the Left somehow has managed to convince themselves that the 60% who hated Obamacare before are just going to love ObamaTax&Care.

Rick Ballard

"Said that he was waiting for Nov 6th to decide if he was going to do any hiring but as of yesterdays decision he will not because it is not worth it for him to do so. Friend said that that is going to ripple through the community."

That's the hidden cost when casuistry mates with sophism. I would add the current employers of 51-65 workers who decided this morning that 47 is their new target.

laura

Jane,

I believe it's been on the books since perhaps the Reagan administration. Well, it's been a long time anyway, even if not quite that long, but somehow it still gets brought up by the emoters.
Just though it might be worthwhile to have the law and date cite memorized.

jimmyk

Does anyone know the law that prohibits turning away people from emergency rooms?

It's the

Emergency Medical Treatment and Active Labor Act passed in 1986. Not sure of the circumstances of it's passage. Not Reagan's finest moment if he signed it into law.

Jane

Good job Jimmy!

Can some one answer my question on whether the House can repeal a tax? I don't see any reason why they couldn't but I am clueless.

AliceH

Add those of us currently electing a catastrophic health ins plan to those who can expect to be slammed by some of the highest premium increases.

Not only will actual medical care costs go up, but I'll be forced to upgrade from my current plan that works FINE for me to one that includes a huge list of covered "services" I do not want and do not need but will have to "buy" anyway. My best estimate from what I've been able to work out is that is my premiums will triple. Yay.

Porchlight

Jane, did the Senate attach its bill to a skeleton House bill that included taxes?

Yes it did. Sneaky, I assume that gets them around the "must originate in the House" requirement.

Jim,MtnView,Ca,USA

Some have pointed out how this negatively affects poor people who are now required to purchase medical coverage.
Not to worry, the next step in the Dem plan will be to suck the money out from "the rich" (aka "people with jobs").
ObamaCare doesn't need to make sense. It just needs to exist long enough to become permanent.

cathyf

Maybe we can call it the "Kick 'Em While They're Down Tax" ? Explain it this way:

So you've got some poor person who doesn't have insurance because if he/she spends her money on insurance then the family doesn't eat. Now with Obamacare, the family still won't have health insurance, but ALSO won't be able to eat because they have to pay Obama's Kick 'Em While They're Down Tax.

Jane

Welcome to my world Alice.

Stephanie

Does this decision mean Baghdad Bob's Blithering Blunders was purchased by the Troika's ACME brand subsidiary?

Can't wait to see the interviews on the Sunday shows...

Sara

I have been reading at a few places that the Act can't stand because tax bills must originate in the House and the ACA originated in the Senate. I cannot remember the chronology, but I thought it originated with the Pelosi House. Can anyone give me a quick bullpoint chronology to counter the claim it originated in the Senate, or is my memory off and it really did?

Ignatz

--Not only will actual medical care costs go up, but I'll be forced to upgrade from my current plan that works FINE for me to one that includes a huge list of covered "services" I do not want and do not need but will have to "buy" anyway.--

Are you sure Alice?
I just talked to my guy yesterday and he said I could stick with what I have and what had to be added already had been, like the kids til 26 and unlimited liability.
Maybe he didn't know what he was talking about.

Dave (in MA)

Thanks Jane.

OT, but another case of Death By Liberalism that happened in my neighborhood this week.

AliceH

I'm pretty sure, Ignatz. You live in CA, right?

You already pay more than double what I do for a basic catastrophic plan, thanks to your compassionate state legislators requiring a whole lot more than my state does.

crazy

Since Indians, certain religious groups who self-insure, and noncitizens are excluded from the mandate how does the mandate penalty/tax conform with the uniformity clause?

Ignatz

--So you've got some poor person who doesn't have insurance because if he/she spends her money on insurance then the family doesn't eat. Now with Obamacare, the family still won't have health insurance, but ALSO won't be able to eat because they have to pay Obama's Kick 'Em While They're Down Tax.--

Someone correct me if I'm wrong here but Barrycare was going to subsidize the poor and lower middle class with the medicaid expansion correct?
If states opt out of that their poor and middle class will not be subsidized but as tight as state budgets are how can they not opt out of this huge new expenditure? Will the result be the poor and lower middle class move to states that don't opt, out completely busting those state's budgets.
Rock meet hard place. Hilarious, if true.

Stephanie

So stolen cathyf and posted to facebook. ;)

Now if some enterprising photoshopper could have some fun...

Ignatz

--You already pay more than double what I do for a basic catastrophic plan--

A 20 year old daughter, 53 year old man, and 58 year old woman with an $8,000 deductible equals $10,200 in yearly premiums with Bl SH.
I don't know if that's double what yours would be with similar insureds but it stinks enough for me, especially since there will be another large premium increase come next spring.

Sara

Another one bites the dust, but leaves taxpayers holding the bag:

Sara

Hmmm. I swear I put the link in, let's try again:

Denver Post: Colo. Solar Panel Maker That Got $400M Federal Loan Guarantee Goes Bankrupt

Melinda Romanoff

Jane-

Simple majorities, in both houses, knocks it out.

Thomas Collins

Jane, I think the House could repeal ObamaCare in its entirety, taxes and all. But I'm Not Particularly Wild About Harry wouldn't even let repeal come up for a Senate vote. He would be an obstructionist, just as he has with the other legislation coming out of the House.

It burns me up that MSM promotes the lie that the current House is obstructionist. It's Harry the Chief Pothole and his fellow Dem potholes in the Senate that are tying up traffic.

Extraneus

Pelosi: Calling Obamacare a Tax Is Just “Washington Talk” That Americans Don’t Really Care Much About

Exactly.

Stephanie

Rick:

Did Cook just throw in the towel?

LUN

cathyf
As we have seen with the EPA, the Executive Branch's power to impose penalties on selected targets may be the most effective tool, bar none, for centralized statist control and direction.
Ok, this is kind of a sidebar, but can some lawyer here explain to me how selective enforcement of laws passes muster with the 14th Amendment?
Jane

TC,

Does the senate even vote on tax bills? If they do I'd love to watch the democrats squirm. Of course Harry won't bring it up. It is going to be really fun to watch the July 9th vote.

Stephanie

ACME in Action:

Q But for that 1 percent, is it a tax or a penalty?

MR. CARNEY: It's a penalty because you have a choice. You don’t have a choice to pay your taxes, right? You have a choice to buy -- if you can afford health insurance -- and you can, I assume, Jared. So if you don't buy it, and you can afford it, it is an irresponsible thing to do to ask the rest of America’s taxpayers to pay for your care when you go to the emergency room. So your choice is to purchase health care reform or a penalty will be administered.


LUN

Charlie (Colorado)

I thought the argument was that regardless of what they called it, only a tax interpretation can justify the mandate, so
"tax" it is, and once someone pays it, it becomes ripe for review.

Isn't that my point 3 (the first one I mean :-)? But if it had been *called* a tax, the Anti-Injunction Act would have applied, no?

Melinda Romanoff

Jane-

There is that 20 Senator contingent that Dingy Harry has to deal with who just may want to have a vote to run on.

More risk.

Charlie (Colorado)

Taxes have to be voted upon as taxes.

Sez who?

Sara

Someone correct me if I'm wrong here but Barrycare was going to subsidize the poor and lower middle class with the medicaid expansion correct?

Some people prefer, no matter what the financial circumstance, not to submit to gov't control, become part of the Welfare system, and become a gov't dependent. I am one, but I am not alone.

Several years ago, they tried to send my brother-in-law and niece to the "county hospital," the Welfare catchall medical facility, because he did not carry insurance and preferred to pay cash. He is a wealthy business owner and made the business decision that it was cheaper for him to pay out of pocket as needed, rather than pay excessively large premiums for services he'd never use. So, when my niece broke her arm, he tried to pay cash for the emergency room services to get the arm set and cast and then go to their own physician for follow-up. They would not accept his cash and wanted him to take my niece to the "free" clinic, then he had to submit to a lecture about being an irresponsible parent for not having insurance. It was crazy, since he is a wealthy man who could easily pay any incurred charges. He ranted about this experience at every family gathering for years.

Extraneus

it is an irresponsible thing to do to ask the rest of America’s taxpayers to pay for your care when you go to the emergency room

And there it is in a nutshell. The 1986 EMTALA law that Laura asked about has led inevitably to the government having the right to punish us like children.

AliceH

--A 20 year old daughter, 53 year old man, and 58 year old woman with an $8,000 deductible equals $10,200 in yearly premiums with Bl SH.--

Just plugged that into a local Insurance Provider. Highest premiums of 3 plans offered (w/ 10K deductible) is $4101/annum.

That rate also reflects increases applied already (no limit, children up to 26yo).

I've done this exercise before with co-workers across the country. We get to choose among the same plan NAMES from the same providers, but our premiums are not even in the same ballpark.

Charlie (Colorado)

There is nothing I can see in Robert's opinion that expressly or impliedlyincreases the scope of the federal government's taxing power. It remains as limited as it was before the NFIB opinion -- not very.

Thanks, that's the impression I got too.

Thomas Collins

Although a tax bill must originate in the House, Jane, both the House and Senate must pass it before SCOTUS can sign it into law. I could see the House GOP leaders holding off and simply running against ObamaCare (promising that a GOP Senate and House, and GOP POTUS, is needed to "death panel" ObamaCare).

Extraneus

(Should have bolded "ask" in Carney's comment, since there's no asking involved.)

AliceH

Sorry. My point is, as someone already covered by what Obamacare considers "basic/low cost plan", you won't see the same seismic cost shift that those of us will in other states. There are millions of us - maybe hundreds have figured it out.

Ignatz

--Just plugged that into a local Insurance Provider. Highest premiums of 3 plans offered (w/ 10K deductible) is $4101/annum.--

Can we move in with you?
I'm not very smart but I'm good at moving furniture and stuff.

Melinda Romanoff

Call Dr. K.

UT/Austin students hijacked a DHS drone. Heh. (at Insty).

daddy

Finished page 1 of the threads.

I remain unswayed.

I am and remain so impressed by the wonderful minds and folks we have here at JOM. I have no illusions about how my mind ranks in regards to you guys, so I feel sheepishly awkward acting like the little kid looking at the Emperor without any clothes, but I fail to any Silver Lining that comes within a million miles of making this decision a positive development.

When DoT sez: "The Court can do whatever it wants to do. No one should think that's a good thing," I agree completely.

IMHO, I continue to see this ruling by Robert's as unjustified and unconstitutional. It diminishes him, the Court and the respect of the average American toward the Constitution.

I cannot imagine any Constitutional Founding Father, having risked life, liberty and sacred honor to toss out King George and his Taxation without Representation policies, looking at this decision yesterday and not being absolutely appalled.

Jane,

As for your choice, I don't think we yet fully know the horrible implications of imposing Obamacare. Far as I can tell it is still being written by unelected bureaucrats and to paraphrase Nacny, we're not going to know what the hell is actually in it until we implement it. That being said, at the moment I'd take overturning Obamacare, because at least we know what we have in Obama.

On to page 2 of the thread.

Jane

Fox just announced that the DOJ refuses to prosecute Holder.

On to the civil case.

Thomas Collins

Then again, Mel's 3:13 PM post succinctly summarizes the argument for sending a repeal of the biggest tax increase on the middle class in the nation's history over to Harry.

Jane

Kathryn Jean Lopez ‏@kathrynlopez
hhs has some mysterious affordable care act announcement coming at 1:30 today.

The word was always that Obama planned to implement it even if overturned so my guess is this has been in the works.

Ignatz

--There is nothing I can see in Robert's opinion that expressly or impliedlyincreases the scope of the federal government's taxing power. It remains as limited as it was before the NFIB opinion -- not very. --

I don't think the dissenters saw it that way and I don't think I do either.

They seemed to consider taxing the citizenry for not complying with a direct order from the federal government to engage in certain commerce a novel and unprecedented use of the taxing power of congress. Until someone can show me otherwise I tend to agree. It is certainly, by far, the most expansive view of the general welfare taxing power ever written into a SCOTUS ruling. I could be wrong and welcome a citation otherwise.

cathyf

And another question about waivers... If the mandate is actually a tax on people who don't have health insurance, then if the waiver says that you are not obligated to buy health insurance, that's all fine and well, but the tax is on not having health insurance, and you don't have insurance so you have to pay the tax.

Think of it this way... Suppose you pass a tax on people who don't own at least one handgun. Now people convicted of certain violent felonies are prohibited from owning guns. So the people eligible to buy guns get to chose -- buy the gun or pay the tax. But the people ineligible to own guns must simply pay the tax.

History lesson on Establishment of Religion: Maryland was settled in the 1630s-60s by Catholics looking for refuge from England's harsh anti-Catholic laws. In the early 1700s, the Proprietorship of the colony passed to an heir who was a Protestant, and religious toleration was over. Catholics were prohibited from worshiping in any public building, for example. And service in the militia and service in local government required the taking of an oath that the person did not believe in transubstantiation. And since Catholics were not "doing their duty" by serving in the militia and government, they paid taxes at double the rate of non-Catholics.

Historically, this and other actual historic examples from recent Colonial America is what is being outlawed in the no-establishment and no-religious-test clauses of the Constitution. So now we have a law that says that Catholics have to buy other people's contraceptives and other people's abortions, or they have to pay a higher tax rate. A very close 21st century parallel to exactly what was done in 18th century colonial America. And outlawed in the new country's constitution.

derwill

If it only requires 51 votes to overturn ObamaTax&Care in the Senate--and that does seem to be the growing consensus--does that mean it will only take 51 votes to bring it to the floor for a vote?

Stephanie

Couldn't Roberts have saved us all the angst by just striking down the law via the commerce clause arguments and providing a notation that 'tax' is the way to go not 'mandate?'

This decision appears like he is legislating from the bench. I am really not comfortable with the assumptions packed into his tax/penalty 'I know what you meant' prestidigitations that cloud the water in the 'hate crimes' type thought police 1984 slope the progs are sliding our discourse down.

2 + 2 = 5 indeed.

Jane

Stephanie,

I'm become more convinced that Roberts did it to save the courts reputation - which I understand but have a hard time agreeing with. If he had done that Obama would be campaigning on appointing new justices and a bunch of other stuff, but the sting of it is still really tough.

Jane

I would have thought that the AG would have waited a lot longer to say it won't prosecute to eat up time. Maybe Holder is scared.

fdcol63

Personally, I think it's time for the country to split into 2: The Democratic People's Republic of Obamastan and the Reformed United States of America.

JM Hanes

Jim Ryan:

"But the point is that if you espouse the 3D chess theory, you accept that in principle Roberts should be fired."

I don't believe Roberts' "duty was to sink Zerocare" even if, let alone because, he "believed" that was the desirable conservative outcome, and I certainly don't presume that he tossed out his constitutional convictions for some extra-judicial long term gain. We could speculate about his motives till kingdom come, and still miss the key to his ostensible change of position. It's entirely possible, for example, that in the process of developing the case for repeal, he ultimately saw constitutional pitfalls in his exegesis which did not strike him at the start. Or something else.

The Chief Justice's job description consists of more than simply writing and assigning opinions, and his purview includes internal politics. I fail to see anything inherently impeachable (in either concept or practice) about the "3D chess theory." Roberts has an explicitly stated regard for both judicial precedent (which would include both observing and setting it) and deference to Congress, both of which could be said to characterize the opinion he handed down. The principle of consistency from one court to another over time is a central piece of Supreme Court jurisprudence. It is just as incumbent upon the Chief to take the long view forward as well as the long view backward to the case law to date.

As a related aside, I disagree with those who suggest that he just plucked the tax question out of thin air to justify his shift, whether political or not. The government argued that Obamacare was both a tax and not a tax, so it was a issue begging to be resolved. I'm also not sure the mandate's status as a fine is as unambiguous as its opponents assert. The idea of incentivizing behavior with tax credits has stirred almost zero constitutional controversy. How is incentivizing behavior with tax penalties categorically different?

In any case, I think the mandate was just a smokescreen from the get go, designed to create the illusion that Obamacare would pay for itself, when in reality, the costs of ascertaining who might be subject to such penalties would be horrendous, the possibility of collecting any significant funds almost nil, and the incursions on privacy to sustain the illusion monumental. That does nothing to diminish the importance of the constitutional question, of course.

AliceH

--Can we move in with you?
I'm not very smart but I'm good at moving furniture and stuff.--

Heh. You can stay here (I have 2 extra bedrooms) while you find the perfect fixer-upper to buy. Median home price is something like $90K, but really nice big old 3-storey ones will run as high $150K. There are a few $500-900K homes here or there, but they are what I call "expensive-ugly", slapped faux-lodge style sitting on 50 acres.

Not many jobs here, poverty rate of near 30%, but lots and lots of small and some medium sized tree-harvesting opportunities. We are still cleaning up after our inland hurricane of 2009.

Stephanie

I can see him concerned that at some future point should Obama eek out a win, the progs would go full Chavez and dissolve the court via executive order or pack it ala Roosevelt.

Did they order the tin foil before or after the deliberations or did some comment during them indicate it was warranted? With this crew in power, I know I'd be stocking up.

Stephanie

Now that the ruling is out, can the justices comment on it on the rubber chicken circuit and elsewhere?

Be interesting to see some of the sausage exposed...

pagar

"Obama Fundraising Gets Still More Desperate"

http://moonbattery.com/?p=13480&utm_source=twitterfeed&utm_medium=twitter
--------------------------------------------

Six Months To Go Until Taxmageddon

If the Romney camp could set this info down in Black and White for workers making
x dollars-your tax bill in Apr 2013 will be blank dollars, I believe the numbers supporting Obama would decrease rapidly.

http://www.atr.org/six-months-taxmageddon-a7005

JM Hanes

I think they could, Stephanie, but the payback could be a real bitch.

Janet

it is an irresponsible thing to do to ask the rest of America’s taxpayers to pay for your care when you go to the emergency room

That is rich coming from a lib. I didn't know they knew the word "irresponsible". :(

Captain Hate

Personally, I think it's time for the country to split into 2: The Democratic People's Republic of Obamastan and the Reformed United States of America.

That argument's been going on since the Federalists versus the Republicans in the Washington administration; with probably a better chance of it happening then.

daddy

"Couldn't Roberts have saved us all the angst by just striking down the law via the commerce clause arguments and providing a notation that 'tax' is the way to go not 'mandate?'

I think so.

Stephanie

Ok.. this is funny

http://www.facebook.com/photo.php?fbid=404516592917357&set=a.126335284068824.9039.125971034105249&type=1&ref=nf

Janet

it is an irresponsible thing to do to ask the rest of America’s taxpayers to pay for your care...

and did Carney ever tell this to Sandra Fluke?

Porchlight


"Couldn't Roberts have saved us all the angst by just striking down the law via the commerce clause arguments and providing a notation that 'tax' is the way to go not 'mandate?'

Verrilli argued that it was a tax in oral argument. I think the Court was bound to take that into consideration even though the Dems lied about it in order to get the law passed.

Porchlight

it is an irresponsible thing to do to ask the rest of America’s taxpayers to pay for your care when you go to the emergency room

Of course it is. Obviously the truly repsonsible thing to do is to ask them to pay for your insurance BEFORE you go to the emergency room.

jimmyk

But if it had been *called* a tax, the Anti-Injunction Act would have applied, no?

I thought the Anti-Injunction Act merely prohibits (among other things) deciding on the constitutionality of a tax until it's actually collected. So why couldn't Roberts say "Regardless of the language of the bill, this is a tax, and as such, gets around the limits on the Commerce Clause. As to whether the tax itself is constitutional, we'll have to wait till 2014." In that sense, I thought the Anti-Injunction Act does apply, in that there is no decision on the propriety of the tax, just that it IS a tax. But I confess, this is not my area of expertise.

Ignatz

--Couldn't Roberts have saved us all the angst by just striking down the law via the commerce clause arguments and providing a notation that 'tax' is the way to go not 'mandate?'--

The government's third argument after commerce clause and necessary and proper was the taxation power angle. Roberts' and the court were obliged to take it up.
He could have said taxing someone who doesn't engage in commerce the government requires him to is an overreach of the congress's power to tax. That was the minority position.
He chose otherwise. Whether because his Federalist view is that is correct or because as I said earlier, he was trying to avoid having to decide this a couple of years down the road with a couple more Barry appointees or some combination of the two reasons I don't know.
I can credit his argument about not constraining the congress's power to tax further as legitimate but think the minority had by a good margin the better or it. Congress will certainly recognize no limit and this was the perfect opportunity to impose one or at least define it better.

The comments to this entry are closed.

Wilson/Plame