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June 28, 2012

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MarkO

"As a massive new tax on those least able to pay."

Is this a gift? It's an extremely odd decision, making a tax out of something that was passed and promoted as a not-tax.

My disappointment in the sophistry of Roberts is extreme. The 4 liberals vote as a block. Only conservatives are required to have a "moderate" in the group.

But, that said, I'll switch to Wimbledon.

bgates

the court, which acted in the limited fashion usually celebrated by conservative thinkers

You know, the rest of us don't act surprised when the freethinking changemongers pass on the opportunity to shrug off the opinion of a bunch of dead white men from like 100 years ago in Wickard v Filburn. I don't get why you have so much trouble understanding what the Right wants the Court to do.

narciso

I think this about sums it up;


https://twitter.com/SarahPalinUSA/status/218353507491786752

Appalled

DD:

Romney has pledged to use the PPACA waiver system to make it disappear until Congress can ram through repeal using the 50% + 1 reconciliation process.

The gratification for the anti-PPACA forces may be delayed, but I think it will be more intense.

jimmyk

"Was the court asked to determine if the mandate was a tax?
As I recall all parties contended it wasn't."

I asked about this in general here a couple of weeks ago. The answer (MarkO, I think): SC can do whatever the hell it wants. Not restricted to arguments of either side.

Also, someone did predict this exactly: someone at Slate. I don't have the link now. Dellinger, maybe?

MarkO

Lyle: For readers of the opinion, a quick look at pp. 31 and 32 of Roberts' opinion tells you why the Court is sustaining as a tax measure.

AliceH

I thought one of the problems was there was no enforcement mechanism in it to force compliance

There was no mechanism to enforce the penalty. There is the IRS with it's existing powers (and 1500 new hires) to enforce the tax.

narciso

Are they playing with natives of Skyron from the Galaxy of Andromeda.

James D.

We're fucked.

To everyone who thinks the tax vs. commerce clause distinction benefits our side and hurts Zero in the campaign, do you honestly think the MSM will report it that way? The headline's going to be "Obamacare upheld - Conservative justice puts stamp of approval on historic health care reform"

Janet

from narciso's twitter link -

Sarah Palin ‏@SarahPalinUSA

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

hit and run

Ignatz: I thought one of the problems was there was no enforcement mechanism in it to force compliance.

Scotusblog:

-------- 10:40 Lyle: Among other comments, Ginsburg bench statement says that "seven members of theCourt...buy the argument that prospective withholding of anticipated funds exceeds Congress' spending power."

10:41 Lyle: The remedy, Ginsburg says, is "to bar the withholding found impermissible, not to scrap the expansion altogether." There are five votes for that. --------

So, the government can't withhold the money from your paycheck like FICA, but now it will be back to Congress to figure out how to collect the tax? Go ahead Dems -- write a law that forces people to pay the tax out of pocket. Tell Americans how you are going to hire thousands of new IRS agents to harass those who don't meet Obama's standards for health care insurance.

-------- 10:52 Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition. --------

Forward!

MarkO

9-0 saying the Commerce Clause does not permit such a thing. 5-4 saying, nevertheless, we'll make it a tax. There. Fixed.

Just how will this work?

Murray, the English hope, is winning against a nobody.

Ranger

It appears that the SC just handed Obama his "Read my lips, no new taxes" moment.

"If make under $200,000 dolars, your taxes will not go up, not one dime."

The trap is laid for the Presidential debates, where Romney can ask Obama, 'Why did you break your promise to not raise taxes on the middle class by signing Obamacare?'

Oh, and this also insures no job growth before November.

Sue

Iowahawk: Huge victory for President: court rules his widely-despised heath care plan a huge tax increase

Porchlight

Voters will just love being invited to have a more intimate relationship with the IRS and its 1500 new agents.

MarkO

No, hit, just lean forward until you bend over.

C.R.

Some employers have already dropped their insurance plans because of Obamacare. How many more will now before the electorate and Congress get the chance to correct this mess?

Janet

Exactly, James D..
"Obamacare upheld - Conservative justice puts stamp of approval on historic health care reform"

That is all non-news junkie Americans will know.

James D.

I also (not having read the opinion) don't understand how the SC can possibly uphold the mandate on the basis of it being a tax when the writers of the law and the gov't attorney who argued for it expressly said that it wasn't one.

But this is the same SC that decided in Kelo that it's OK for the government to steal your property anytime somebody else comes along and promnises to pay more taxes for the use of it than you're paying, so I guess neither logic, nor common sense, nor freedom matter worth a damn to them.

bgates

SCOTUSblog

"Lyle: Interesting, at least to scholars, that while the mandate and its attached penalty are a tax for purposes of its constitutionality, but not for the Anti-Injunction Act. If it were a tax for AIA purposes, this case would not have been decided re the mandate."

Congress didn't want to pass a tax, so they made the mandate under the Commerce Clause. The mandate was found Constitutional because it's a tax. It's a tax that won't go into effect for two more years, so nobody can sue to have it declared unconstitutional, but it was declared constitutional here because it's not that kind of tax. What kind of tax is it? Shut up, that's what kind.

dublindave

Can I just say in all sincerity how much I respect Justice John roberts and it's not just because he upheld Obamacare.........this guy...this guy is a hero.

We literally may have ourselves a left leaning Supreme court.

Ignatz

David Bernstein at Volokh on how Roberts ended up with his job. Thanks W.

Chubby

maybe this is in some way that we don't yet understand Roberts revenge on Obama.

NK

cboldt@10:35-- that is a fair summary of how the SCTUS saved the constitutionality of Obamacare. It is a tax for which there is no mechanism to collect-- yet. Is Choom Barry going to jump up and say, we have a new tax-- I will have the IRS immediately draft regulations to force the working poor to pay the tax! Like hell-- Roberts has kept the SCOTUS from looking like it's involved in politics while handing Barry a giant poop sandwich.

hrtshpdbox

Murray, the English hope, is winning against a nobody.

Murray always gets halfway there in Wimbledons, doesn't he? Sigh...I've lost my Tennis Channel, for some reason (something about Verizon "package levels").

Sue

Well, it's happening. Obamacare upheld. Huge win for Obama and congressional democrats. That is the radio news headlines.

MarkO

If this sort of social engineering cannot be hidden under the Commerce Clause, then the fact that it will have to be described as a tax will severely limit the political possibilities. It seems to me that the House could begin a repeal on the idea that they want to rescind the Obama tax increases on the poor and middle class.

It’s back to the electorate, which I consider Doom.

Porchlight

One thing I was worried about would be that if the act was struck down, or modified, Dems would no longer own it politically. Its loss, or any horrible things about a modified version, could be laid at SCOTUS/Repubs feet.

I'm not worried about that anymore. People who hate it will know exactly who to blame.

Chubby

((making a tax out of something that was passed and promoted as a not-tax.))

but it WAS a tax, and this decision has made that clear, whereas before it was cloaked by the Obamaites as a not-tax. I can't help but feel that in the long run this exposing of trickery, lies, and deceit has to have a good result.

Stephanie

Can't the next congress repeal a tax with 51 votes? It can't be held to the 60 vote rule, right??

Jane

Tell Americans how you are going to hire thousands of new IRS agents to harass those who don't meet Obama's standards for health care insurance.

They already hired something like 14000 just for health care.

Porchlight

Of course they are spinning it as a win. But it polls as a loser, and will probably poll even worse now that the mandate has become a tax.

Jane

BTW, the third alternate argument by the gvt was that it was a tax.

Chubby

I agree with your take that it is a "poop sandwich" NK. He can't dissemble about what it is any more.

MarkO

I guess, after all, that the Solicitor General was not nearly so ineffective as we thought.

Murray now officially "flustered" by someone from a place called Germany.

Ignatz

If the Republicans do get 60 senate seats by some miracle, my first order of business were I in the leadership would be arranging Roberts' impeachment.

Porchlight

I think I am with you, Chubby. All nine Justices understood that the mandate was unconstitutional. We were right about that without a doubt.

Before, Obamacare was a horrible unpopular ugly suffocating tent of a law propped up by an unconstitutional lie - but a lie that many believed.

Now that lie has been exposed and it is a horrible unpopular ugly suffocating tent of a law propped up by a TAX.

cboldt

So, SCOTUS has given Congress the mold for increasing taxes without passing tax laws.

Pass a goods or service purchase mandate, prescribe a non-enforcible tax penalty against those who refuse to abide by the purchase mandate, and the purchase mandate is constitutional because the court holds such devices to be a tax.

Chubby

((...even worse now that the mandate has become a tax))

it always was a tax. as narciso mentioned above, why were they hiring (so very quietly) all those new IRS collectors? as of today, no more smoke and mirrors

Melinda Romanoff

Insty's 10:08 lays out the possibility that Roberts pulled a Marbury.

rse

James D & Janet-

this is precisely why they are so mad about Citizens United because there s a remedy. Put the commercial up on the low info's favorite TV show.

This is why Wisconsin matters so much. The counter coffers are bare.

There's nothing to stop every doctor now from worryingly telling their patients what it will mean if this is not gone. Think that will have an impact on the race in Florida?

This is a toxic result for Barry.

Plus the Dems who hate to vote Rep can say I am not racist. I don't like Romney but this has to be one and this is the only sure way to do it.

And then we can start the assault on Wickard. With political will this time that that magnificent document does has limits.

And it needs to have more.

Jane

Actually, not to protect Roberts but he has effectively made the case political as opposed to judicial. If the people don't want it they can vote for Romney. You can argue that is the right way to decide this. And I would argue any person who voted for it in the first place should watch their seat.

(I'm sure someone has already said this)

Janet

I can't help but feel that in the long run this exposing of trickery, lies, and deceit has to have a good result.

Conservatives win in the "long run" - libs win the daily battles.
Are we drilling for oil?
Are our borders secure?
Is Obamacare upheld?

We will have a big thick bestselling book in about 20 years that will explain how our nation was ruined & how Conservatives were right. Lotta good that does...

marlene

Yes,Porch,as Sue said earlier,everyone understands what a tax means.This creates more uncertainty for everyone.Fox News just reported that Eric Cantor said the week of July 9 Congress will begin the repeal process.

cboldt

Next up, a decision that upholds a federal law that mandates not purchase or consumption, but production. That's probably constitutional too, as a tax.

Mandate, either produce, or pay the penalty. Since the penalty is a tax, the order to produce is constitutional.

dublindave

Hey,cheer up you guys,at least you get to hold Eric holder in contempt.


Who?


Life gives you lemons, you make lemon peel sandwhiches.

Ignatz

--I will have the IRS immediately draft regulations to force the working poor to pay the tax!--

I believe Barrycare has provisions for assisting low income people in paying their insurance premiums.
It will be the young and healthy middle class people who had exercised their freedom not to buy insurance who will have to decide how they would like to be coerced.
Most no doubt will bend to Barry's will and buy insurance rather than toss their money away even if it's cheaper to pay the tax.

Danube of Thought

do you honestly think the MSM will report it that way?

No, but if we had to rely on the MSM reporting things the way we see them we would never win an election.

woo woo

Obama's health care tax will not be anywhere close enough to cover the actual increased health care and bureaucracy costs. So expect much larger tax increases down the road for everyone. The US health care system is now modeled after the US postal system.

pagar

"Fricking brilliance by our government."

More than any thing else I can think of the Obamacare mess came about because of the mess that voting for Democrats has created in this country. Every single house member that voted for the Obamacare mess can be thrown out of their office on Nov 6. By throwing every single Democrat Senator that is up for election in Nov out we can insure that Obamacare is repealed.
Vote straight Republican in Nov. The future of America depends on it.

Danube of Thought

As far as I know, a bill to repeal a tax needs 60 votes to override a filibuster, just like any other bill.

Ignatz

--Actually, not to protect Roberts but he has effectively made the case political as opposed to judicial.--

Which is why he's such a POS. That is not in his job description.

pagar

"Isn't it sad to see how excited some citizens become when the federal government takes away some of their freedoms?"

Janet, The American left won't be happy until every freedom Americans have had is gone.

Jane

Didn't Obama vote against Robert's nomination?

MarkO

Insty:

"So there you are. The Supreme Court has refused to save us from ourselves. The remedy now will have to be political."

DOOM.

I would at this moment begin a campaign aginst the largest tax increase in history on the poor and middle class and ask Mr. Presidnt to join in the repeal of something he never intended and promised never to do.


Tea Party, take your places.

cboldt

A bill to repeal a tax takes 60 to get through the Senate, and 2/3rds in both chambers when the pres__ent vetos it.

Sue

I'm more disappointed in Roberts than I am in the ruling. I expected the ruling (it was my prediction from yesterday) not as a tax but upheld nevertheless. But damn. Roberts?

Jane

Tea Party, take your places.

How bout all of you get off the couch and join the tea party?

Rick Ballard

"my first order of business were I in the leadership would be arranging Roberts' impeachment"

Why? Chief Justice FiveLegs has returned responsibility to the electorate. He may have diminished respect for the Nine Ninnies in doing so but he's certainly increased the importance of elections.

Ignatz

--As far as I know, a bill to repeal a tax needs 60 votes to override a filibuster, just like any other bill.--

Here's a good read on repealing Barrycare via reconciliation, DoT.

Katherine

Another thing died today together with freedom not to purchase a product withouth tax penalty if federal government actually wants you to get that product, and that is the notion of judicial independence. I do not belive for a moment that Obama "pressure" on Roberts was limited to frowns and angry speeches. So I am kind of curious, what exactly did they do: threatened family pets? Promised jail time for unpaid parking ticket?

MarkO

There is a maxim that the Court should uphold an act of Congress if there is a basis on which to do so and leave the wisdom of the legislation to the Congress and the people.

Although I am extremely disappointed, it's not as if Roberts found a penumbra. I've found a new conspiracy, however, it's the HLR secret society.

dublindave

Also,special thanks to my source,deep-ass for giving me inside information that Roberts, not Kennedy, would be the swing vote.

I'm trying to get more out of 'deep-ass' on how Beohner leaned on Roberts, but he's staying tight lipped.

He's also telling me that this is not a clear cut win for Obama's re-election chances and that Boehner et al may have something up their sleeve for November that's related to roberts decision.He's not comfortable with this outcome.Damn!

That freakin Boehner,the left have him all wrong,he's a political genius i'm telling you.


Chubby

For anyone who doesn't know what a "Marbury" is, as cited by Melinda citing Instapundit:

((It appears that there may also be support on the Court for limiting Congress’s spending power. Has Roberts pulled a Marbury, appearing to give ground while actually laying the foundation for change in the future? Call that an optimistic reading.))

cboldt

The judges will put you in chains just as fast as the Congress or president will, and with more certainty they have the right to do it.

Judicial independence isn't all it's cracked up to be.

Janet

Slouching towards Gomorrah.
Running towards Gomorrah.
Partying in Gomorrah.
Buying a vacation home in Gomorrah.
Change of address: Permanently moved to Gomorrah.

Ignatz

--Why?--

Because it has been the SCOTUS's stamp of approval on Fed power grabs which have given them unearned legitimacy.
It's all well and good if there is an electoral backlash, but as cboldt point out Roberts has just rubber stamped unlimited Fed power to interfere with and take over commerce through a means other than the commerce clause.
I knew they'd eff it up but didn't think they'd do this good a job of it.

Jim Rhoads a/k/a vjnjagvet

I was worried mainly about federal police power being extended without limitation. It has not been. Pelosi was right. You had to read the bill to know what was in it. And what was in it was the now famous ObamaPelosiReid tax. The highest tax increase on the middle class in history.

I agree with NK:

Roberts would have made Machiavelli proud-- the Commerce Clause is limited, Obama has to justify his tax, and The SCOTUS keeps its political skirts clean. Don Giovani, forza!

Moreover, a key medicaid provision was declared unconstitutional by a seven to two vote. Even Kagan and Breyer agreed. Did Roberts make a deal to uphold the mandate as a tax if Kagan and Breyer went along with overturning the medicaid provision? I wonder.


Bob

There seems to be some new language in the decision limiting Congress in its pursuit of the Commerce and Necessary and Proper clauses. How very Machiavellian. Upholding the mandate as a tax and "Look! Squirrel!"

Jane

I'm with Mark and I think we have talked about that possibility with Roberts given his philosophy. There was also concern with Scalia.

NK

Ig@11:14-- all true, but that conflates reality with politics. The reality is that Barry and the Dems never expected to collect the mandate or tax or whatever it's called from their constituents. That reality hasn't changed. Obamacare is a giant unfunded mandate and entitlement expansion. The politics is that the 54% who hated Obamacare hate it more now that it is a SCOTUS certifed tax, and Barry's base will DEMAND to know they will never have to pay the tax. Barry will be shouting 'look squirrel' now more than ever. The last thing he wants to talk about is pushing through a giant tax increase on his people that he never planned to collect.

Threadkiller

NK, I am having trouble finding the "Mortgage case" that Thomas wrote the opinion.

Will you link it, please?

MarkO

Murray lost the second set. Duh. Maybe it's the curse of Fred Perry and his clothing line.

Roddick, who would have won many more majors if Nadal's strings were still illegal, is not really overpowing someone named Phau, also from a place called Germany.

Captain Hate

I don't have a problem with the SC doing their best to not get involved with a political squabble; but they seem to have a much lower threshold for invalidating a vote by the actual citizens than they do for people in the political class.

cboldt

Congress never did have a limit on spending power. It has to power to create money out of thin air, and can spend as much as it wants.

It doesn't have a constitutional limit on taxing power either, at least other than elections.

And now, it doesn't have a limit on mandating consumption, purchases, production, or any other activity. As longs as Congress associates a penalty with the mandate to act, the law is upheld as being within the taxing power.

Where Congress used to justify its laws as being enabled by the Commerce Clause, now they can just switch to enabling them via the taxing power.

Jane

WEll hopefully Holder will still be frog-marched from the capital.

Ignatz

--Although I am extremely disappointed, it's not as if Roberts found a penumbra.--

He most certainly did find a penumbra when a walking, feathered, quacking duck of a penalty is redefined as a tax.
If the government orders me to do something and I refuse to do so and orders me to pay money as a result I haven't been taxed, I've been fined, and bgates' satirical take on the convoluted reasoning they had to produce to make it a quasi penalty for one doctrine and a quasi tax for another demonstrates the penumbra he's hiding under.

Rick Ballard

NK,

It's time for Boehner to whip out the CBO projections and propose an amendment to Obamacare raising the tax component to cover the entire cost. It should be proposed and debated along with the bill repealing Obamacare.

rse

The lawyers here don't seem nearly as upset by the opinion. We see this by and large as a good tactic that may have gotten the best result given the intransigence of the 4.

"The no limit quartet" might also be a good electoral slogan on the importance of Obama not getting a chance to appoint a 5th.

NK

TK-- it was the First American case (see link)-- SCOTUSBLOG said Thomas wrote the opinion-- I don't know what he held though (appeal diismissed?). http://www.scotusblog.com/case-files/cases/first-american-financial-corp-v-edwards/

MarkO

"now they can just switch to enabling them via the taxing power."

This could have been the case in the first instance. The limitation here, however, is on the political will to present a tax increase. The entire charade of the "mandate" was to pretend it was not a tax.

This opinion pulls back the cloak. Now, we'll see who is elected.

rse

cboldt-I think the races for Congress will be the real test on whether this is actually a viable strategy long term to get around limits on the commerce clause.

Threadkiller

Hey, remember when George Stephanopoulos told Obama the Mandate is a tax and Obama rejected that notion?

http://www.youtube.com/watch?v=bg-ofjXrXio

I do.

Sara

Arizona law gone,ACA held up,Fast n furious an embarrasing mess.......like I said before,not a good week for you guys.

You are such an a$$hole dudu. Not a good week for "you guys," it is a fuckin' bad week for the country. You may be in love with the commie in the White House, but he is destroying America and that is something to mourn about, not gloat. So STFU!

jimmyk

Yesterday MSNBC was saying that if the ACA is thrown out, that's good for Barry's reelection, while if it's upheld that will help Romney. Wonder what they're saying today?

Soylent Red

Folks...

Starting today do not refer to it as just a "tax". It is the "Obamacare tax".

Tie the albatross to the man who owns it.

cboldt

-- The limitation here, however, is on the political will to present a tax increase. --

Just don't present it as one. The template has been written. Just cookie cutter the same arrangement as in the ACA. Mandate an activity, put a penalty in the tax code. Argue that it's constitutional under the decision just handed down.

The political will is driven by the popularity of the mandated activity. It appears a majority of Congress finds that mandatory purchase of health insurance is popular. The constitution doesn't limit the government, at bottom. Although, that should come as no surprise to anybody who's spent some time reflecting on history, etc.

pagar

"A bill to repeal a tax takes 60 to get through the Senate, "

There are far more than enough Democrat seats available for the Republicans to hold 60 seats after the Nov and more than a 2/3rd majority in the House. We just need to make it happen.

MarkO

Obviously, Obama would never raise taxes on the poor and middle class. Because of the error in the legislation, he will now help repeal and rework it in a revenue neutral fashion.

Just how bone-chllingly stupid is Brad Gilbert?

Ignatz

--Where Congress used to justify its laws as being enabled by the Commerce Clause, now they can just switch to enabling them via the taxing power.--

Exactly. The practical effect regardless of whether you call it police power or the commerce clause is the same. How commerce is conducted may now be utterly dictated by the Feds by mandating and "taxing".
The court essentially just said "the commerce clause indeed has some limits, here is how we recommend you skirt them".

Jim,MtnView,Ca,USA

"Roberts was the swing vote."
And Kagan.
Not to excuse Roberts IN ANY WAY, but Kagan should have been challenged.

NK

So much to talk about and can't do it all today: JimR-- I agree with you, Don Giovanni Roberto accomplished a 4th thing- he reinforced federalism by barring the Congress from blackmailing States who disagree with Medicaid rules;

Ig-- there is no limit in the Constitution to the Congress's taxing (as amended by the 16th Amendment) and spending power. So roberts was bending to that reality.

RickB-- I don't agree with your 11:32. all Romney and Boehner should say is REPEAL THIS TAX on workers, period, because Obamacare is a giant tax and spend monster-- let Barry come hat in hand asking for a bill to fix the tax on his peeps;

daddy

Just woke up and heard about the 5 - 4. Very sad.

When is the vote to hold Chief Justice John Roberts in contempt?

Stephanie

Marco Rubio:

Getting the IRS to chase after millions of Americans for not buying health insurance is what Obama has done to us.

They are framing it as Obama siccing the IRS on Americans. Good for them.

Ignatz

--This could have been the case in the first instance. The limitation here, however, is on the political will to present a tax increase. The entire charade of the "mandate" was to pretend it was not a tax.--

I can think of at least four people who seem to dissent fairly strongly from that view.

Jim,MtnView,Ca,USA

"Vote straight Republican in Nov. The future of America depends on it."
Pagar, that is a mighty thin reed.
Has the Repub Party ever been willing to stand up and fight?

Chubby

Janet

by "long run" I meant from today to Tuesday, November 6, 2012, not 25 years.

cboldt

-- The court essentially just said "the commerce clause indeed has some limits, here is how we recommend you skirt them". --

Exactly. Same thing happened with the Lopez decision. That law was back in place shortly after being struck, with a series of "whereas" statements right out of the Lopez decision. Voila, now it's constitutional again.

I don't think a political solution is viable either. We're a democracy now, and the inevitable outcome is downfall. Glad I got to live through some of the better times.

NK

Ig-- ArticleI, Clause 1, gives Congress the power to impose single payer and pay for it via a tax (now under the 16th Amendment). That is a fact. To limit the taxing power of the Congress you either need a further Const Amendment, or a better Congress, or both.

woo woo

The good news is that Obamacare helped drive the crushing defeat of the Dems in the 2010 elections, and now this ruling will help to finish the job this November.

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