If my understanding is correct – and I make absolutely no claims that it is, given that far smarter and better-educated people than me are still arguing over the specific details – the following has transpired:
The Patient Protection and Affordable Care Act – colloquially known as “ObamaCare” – was passed with strict and absolute adherence to the notion that it was not a tax. Specifically:
STEPHANOPOULOS: That may be, but it’s still a tax increase.
OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.
[...]
STEPHANOPOULOS: I — I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax — “a charge, usually of money, imposed by authority on persons or property for public purposes.”
OBAMA: George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what…
STEPHANOPOULOS: Well, no, but…
OBAMA: …what you’re saying is…
STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.
OBAMA: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but…
STEPHANOPOULOS: But you reject that it’s a tax increase?
OBAMA: I absolutely reject that notion.
However, the Supreme Court of the United States of America just ruled that the “individual mandate” section of ObamaCare constitutes a tax, and is therefore acceptable under the law.
Taking those two data points in and of themselves and discarding everything else surrounding this discussion, it would seem to me that passing a law as not-a-tax in the House, not-a-tax in the Senate, and not-a-tax on the President’s very desk, and then turning around and clarifying / transforming / explaining the law as an actual tax after it has already been signed and added to the United States Code constitutes the very definition of “taxation without representation”, or, as a certain document once put it, “imposing Taxes on us without our Consent”.
I genuinely have to wonder if our government, and, worse, the people who elected our supposed “representatives” into their respective positions, comprehend the fact that people have died, wars have been fought, and countries have been shattered and reformed over “a long train of abuses and usurpations” as the one they are constructing today…
On a somewhat related point, did you know that the “lay and collect Taxes” part of the enumeration of Congress’ power in Article 1 Section 8 of the United States Constitution means the Congress can tax you for not owning something? According to Chief Justice John Roberts, who wrote the majority decision, it does:
Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.
The lengths and extents to which that ability could and will be abused are simply mind-boggling. Oh, you do not own an electric car? You do not own super-expensive impossible-to-get firearm-owner’s liability insurance? Oh, you do not own a telescreen? Well, that lack of ownership is “just another thing the Government taxes”.
It will be completely impossible for me to take seriously anything further said by someone who whinges about how D.C. vs. Heller “rewrote” the Constitution but simultaneously praises this ruling, and I will be very sorely pressed to not smack said person upside the head for good measure.
The same holds for any Republican who has the unmitigated gall to tell me I have to vote for Romney, because having a “conservative” picking Supreme Court Justices is essential! Guess what, dumbasses? Roberts was chosen by none other than President George W. Bush.
Strictly speaking, the .gov has long been able to tax people for not having something. It’s essentially what the mortgage interest tax deduction does. It’s a tax on those who don’t have mortgages.
Subtracting taxes for having something and adding taxes for not having something is a difference in semantics only.
Not saying I like it, only that it isn’t new.
Personally I can’t wait to see what the GOP is going to make democrats buy under penalty of taxes (for their own good, natch) that will make them howl in rage and then twist themselves into pretzels to claim is unconstitutional while maintaining that Obamacare still is. Maybe a tax for not owning a Reagon biography.
While I did not adequately clarify this in the post, I contend that the two taxes remain different – the mortgage interest tax deduction is predicated on you actually doing something (to wit, making money/income), while the ObamaCare “tax” is predicated on nothing more than you living.
The former you have a choice in; the latter… well, I guess you do, but not one I exactly consider “viable”, pun intended.
I like to think the Republicans will use this as leverage to make the Democrats’ lives miserable, but you and I both know both parties will take the easy way out and just screw the American people with it.
Well, shit. Guess that means I’m dying penniless.
Let’s see… swing vote was Roberts, right? A republican nominee? A judge chosen by a Republican (Bush)? A ‘conservative’ judge we’re told is needed so we’d better vote Republican? Yeah, that last argument of ‘vote Republican for supreme court candidates’ just flew out the goddamn window.
I’m not gonna lie- I had a little bit of hope for some common sense. I don’t have hope anymore. There’s one option left for these mini-despots, and it ain’t voting.
I intend to urge my representative to require each and every person over the age of 18, who is not otherwise disqualified to own a firearm, to purchase an AR-15 suitable for service in the militia. And 10 magazines. And 300 rounds of 5.56.
Members of the unorganized militia who are without the appropriate weapon are unable to serve, and impose a significant burden upon persons who are able. As the President put it, “We’re not going to have other people carrying your burdens for you anymore.”
Failure to do so – and each person will have to forward an affidavit to their state militia representative, who will have to be appointed in each state – will require the imposition of a tax of $500.
Yes, I know, such a statute has no chance of passage. However, just how would those who advocate for the ACA argue for its unconstitutionality?
Well, it’s predicated on living without insurance, but then one can argue that the non-mortgage interest non-deduction is predicated on living without a mortgage.
But you’re probably right that instead of making the Dems life a living hell, they’ll just make ours one instead.
The Court ruled that regardless of what it was called by Congress or the President, by its function it was a tax, therefore, it is a tax. The Court did not create a tax. Congress and the President created a tax that they tried to pretend was not, and the Court called them on it.
Further, Congress has fairly unlimited power to tax. The Constitution states “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” Art I, Sec 8. and “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State.” Art I, Sec 9
The Court ruled that because it is functionally a tax, it is Constitutionally a tax following previous rulings by the Court.
So then the question becomes, is it a direct tax, Constitutionally speaking? The Court ruled, rather vaguely, that it is not, and so does not require apportionment. The Court ruled that just like taxing cigarettes doesn’t require apportionment, neither does taxing those who lack insurance. Do I think that that is a fair analogy? Not so much, but I am not on the Supreme Court.
But Congress has always had the power to tax you for living. It has merely chosen not to because it would be political suicide. As the Court pointed out, “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
There is no Constitutional prohibition on stupid laws, and the fact that Obamacare is bad policy has no bearing on whether or not it meets Constitutional scrutiny. As the Court pointed out, it has an obligation to attempt to preserve the law, as passed by Congress, as closely as possible. “Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,”
But on the more substantive question of whether Congress can use its power to regulate commerce to compel people to purchase insurance, the Court ruled that Congress cannot. On every issue of substance, Justice Roberts ruled with the conservatives to limit federal power. On the policy front, this ruling was a defeat. On the legal front, this ruling was a massive win for the doctrine of limited, enumerated powers.
If you haven’t, I’d highly suggest you take the time to read the whole opinion.
GMC70, I like the way you think.
Yu-Ain,
the Mortgage deduction isn’t a tax, it is a tax cut for someone doing something. IF you buy a house, the rate you pay is less. Just as the progressive tax rate is a tax cut for doing something — not making much money.
Linoge,
don’t forget in order to review the case, the court determined it wasn’t a tax – but the decision says it is a tax. HUH?
So, there is a minor, but important distinction. Congress, under its taxing power, may say, “if you lack item x, you must pay $y (assuming the amount of $y isn’t so high as to be punitive.)” Congress cannot use its taxing power to say, “You must purchase x, and if you don’t we will prosecute you in order to seize $y in punitive damages.”
They are very very different things. If you fail to have insurance, the IRS will levy a tax against you. If you fail to pay the tax, the IRS will prosecute you, the same as it would if you claimed to much on your income tax refund. That is very different from being prosecuted by the US Attorney’s office for failing to have insurance, which is what would happen if it were actually a “penalty”, as claimed in the law.
“The same holds for any Republican who has the unmitigated gall to tell me I have to vote for Romney, because having a “conservative” picking Supreme Court Justices is essential! Guess what, dumbasses? Roberts was chosen by none other than President George W. Bush.”
Disheartening I agree, but look at the two witches the One appointed to SCOTUS. Just imagine the unmitigated C-F (family-friendly abbreviation) that perhaps 3 more of these GUARANTEED socialist, tyrants-in-robes, would do to our country. We are desperate to have new SCOTUS nominees that will at least once in a while consult the Constitution. Maybe even follow it…like they did in the Heller and McDonald cases.
I guess I’m a dumbass; but not voting, or voting for a dark horse, is tantamount to voting for the One. Your moral purity may be maintained, but the results may be less to your ultimate liking.
I say we take the Libs down the shitter with us…we need to pass a law that taxes everyone who does not own a shotgun for home protection, and a handgun for personal protection outside the home. The impetus for this is the fact that he police can’t be everywhere, and it would cost zillions of dollars to hire enough police to ensure that every citizen enjoys the right to safety.
Every person in the home has to be covered also, so if there are 2 parents and 5 kids, that’s 1 shottie and 7 handguns. If a family cannot prove they have enough guns for everyone, then they need to be taxed appropriately for the burden they place on their fellow taxpayers vis-a-vis the exorbitant taxes needed to provide enough police to protect them.
Yeah…I think that if we screw the libs by taxing them for what THEY don’t want to buy (just like they are now able to tax folks who do not want insurance in order to compel them to buy against their will) that will drive home the point of how stupid their law is, and the can of worms that their law just opened with the affirmation of SCOTUS.
“In a good example of that, the majority opinion says it would be perfectly fine if Congress enacted a law that made individual Americans pay a $50 tax to the IRS if they owned a house without energy efficient windows. Under that view, there is really nothing Congress cannot do in extorting certain behavior from American taxpayers, as long as it uses the threat of tax penalties to achieve the desired outcome.”
http://pjmedia.com/blog/the-supremes-get-it-fundamentally-wrong/
So there you go.
This law always did try to live in a quantum state of tax-not-tax. Given it had the IRS as the enforcement mechanism.
I find some dark humor in that the same ninnies who freaked out about Citiznes United are loving this decision. I guess the idea of getting out of a tax if you pay money to a corporation is good if it’s the right corporation.
OP, So you think that Roberts is just as dangerous as Sotomayor and Kagan? I’m sad to see this ruling but I’m not hip to Roberts is gonna sell us out on everything just like Kagan and Sotomayor.
True, the four liberal justices *will* vote as a bloc (it’s not ideological when they do it!). Roberts and Kenedy (like in this case) might not.
Ronmeny *might* not pick a die cut justice for said block.
Obama will.
Sort of like how Romney might not veto a repeal, if one manages to cross his desk.
Obama will.
Not exactly compelling reasons to go for the Moving Torb.
Just remember, Justices retire when their (theoretically) compatible party is in power, so that their faction doesn’t become irrelevant. Which means that Obama might get to replace a “conservative” justice, because one might die during his next term, but that Romney almost certainly will get to replace a “conservative” justice, because it’s almost certain that one will voluntarily retire during his term.
Taking the chance that a “conservative” justice will die in the next 5 years scares me a lot less than taking the chance that Romney will nominate someone who will uphold the Constitution.
That’s a good point.
I suppose looking at the ages of the justices might sharpen the odds, but yeah, neither option’s that great.
@ the dude: Voting was not going to solve our problems for the past twenty years, if not longer. The problem, however, is not these “mini-despots” who are so effectively destroying America around them.
@ GMC70: It is a cute idea, and I have seen variation on that theme all over the intertubes for the past 24 hours, but you and I both know it will never get to the point of debating whether or not it is Constitutional. Hell, I would be surprised if it ever made it out of committee.
No, this precedent will be used for nothing more than the continued screwing-over of the American people as we are induced and coerced into purchasing things on the penalty of being taxed if we do not have one.
If our Founding Fathers knew that we would come full-circle back to where they broke off with once-Great Britain, I wonder if they would have bothered?
@ Yu-Ain Gonnano: Except that the non-mortgage interest non-deduction is predicated on having an income from which you will not be deducting.
This monstrosity does not require you to have an income, or even a job. Just breathe.
@ Joseph: That is all well and good, and I applaud and thank you (in a serious, non-snarky way) for taking the time to write all that out, but there is one small detail: my understanding is that if the “individual mandate” was a tax and was always a tax, the Supreme Court could not make a ruling on its acceptability until such time as that tax was actually levied. That ugly “standing” concept rears its ugly little head.
So if this was a tax, and was always a tax, how can Roberts’ opinion exist at all?
@ Bob S.: Yeah, you beat me to it. Schrödinger’s Law, apparently…
@ Braden Lynch: “Moral purity” appears to be the only thing we Americans are being left with, and I still refuse to be swayed by wholly ineffective “false dichotomy” logical fallacies.
@ Dragon: While, again, I love the idea, there is just one small detail – those “Libs”, and those who are getting something from the “Libs”, control our elections. Not “control” as in “they falsify elections to get what they want” (at least for the most part), but rather “they simply make up the majority of Americans who bother to vote”.
Our government did not get here by happenstance. It got here because known authoritarians and totalitarians were elected and re-elected because the problem with the government is always someone else‘s duly-elected representative. States know they get kick-backs from their reps, and they want those kick-backs, and here we are.
Until such time as we keep the American people from voting themselves money from everyone else, they will just keep electing those people who promise to steal the most money from everyone else and give it to those American people. Nevermind that we are all stealing from one another and losing billions along the way, and nevermind that the system invariably cannot sustain itself for very long – they want what they want and they want it now.
@ The Jack: And that quote is exactly what has me horrified at this precedent.
As always, those in power always want more power for themselves, but always forget what would happen if their opponents were to get the keys to the kingdom – as occasionally happens here – with all that power as well. Both sides are guilty of it, and neither side does anything but screw over the American people with that power.
In any case, people seem to be succumbing to logical fallacies left and right these days…
@ Ken Rhanek: No, apparently Roberts is only going to sell us up the river on the really important stuff.
@ Jake: And this is why I hate dealing in potentialities. I know Our Glorious President is nothing more than a petty-authoritarian statist hack. I know Romney is nothing more than a slightly-more-petty-authoritarian statist hack who has agreed with anti-rights laws in the past and provided Our Glorious President the framework for this current legal monstrosity.
Given that, I am looking elsewhere.
@ Joseph:
“On the policy front, this ruling was a defeat. On the legal front, this ruling was a massive win for the doctrine of limited, enumerated powers.”
I’ve read this bullstuff elsewhere, and it just doesn’t hold water. If this decision limits the powers of the federal government, which existing laws are subject to repeal? If this decision is a sweeping rejection of an overgrown federal government, how is it that Obamacare is somehow allowed to stand? And if Obamacare is allowed to stand, then exactly what limits have been imposed?
The answer is “None.” This was a complete defeat for the principle of limited government. Witness Roberts convoluted explanation for why the mandate is a tax for the purpose of Constitutionality, but not a tax for any other purpose.
You can continue to blow legal smoke up our butts, but it doesn’t change the reality that for all your talk, the most massive overreach of power in our recent history was found constitutional and has the full force of law.
Not to mention the bonus of CJ Roberts explicitly saying that the Congress has the right to levy a tax on the air that you breath, or the fact that you breath at all.
Huh. So it’s a tax, but it’s not a tax, it’s a mandate, but not a mandate, and it applies to a negative condition, whether you can afford it or not.
And it’s to be enforced by the IRS, or so I gather, and they’re known for being such kind, understanding folks.
Awesome.
@ Linoge:
So, in 1867 Congress passed the Anti-Injunction Act, which more or less said, “You can’t sue to prevent the payment of a tax until you have actually payed the tax.”
This Court held that because this Congress choose to use the term “penalty” rather than the term “tax” Congress was choosing to not have the AIA apply. If Congress had wanted to have the AIA apply, it would have choosen to use the label “tax”.
But, the label that Congress chooses to use has no bearing on whether or not it is a tax. The method of enforcement determine whether or not it is a tax, for this particular case. And that has been the case for decades. If it operates like a tax, legally it is a tax, regardless of what it is called. And if it doesn’t operate like a tax, legally it is not a tax, regardless of what it is called.
Fundamentally, Roberts said, “Guys, if you wanted to make the AIA apply you should have called it a tax. But, you didn’t, so it doesn’t.”
The relevant portions of Robert’s opinion are below.
Why the AIA doesn’t bar the suit.
@ Rich Hailey:
I do understand that there is no practical difference between Congress being able to say “You must purchase health insurance.” and “You must pay a tax if you lack health insurance.” I am not at all confused that it is a Constitutional distinction without a practical difference. However, it is now precedent that Congress cannot compel states to take action due to the threat of having funds taken away, which opens up an number of existing laws to being overturned; and it is now precedent that Congress’ power to compel through the Commerce Clause is not absolute. To use the example of Wickard, the government may be able to bar use from growing wheat, but cannot compel us to grow broccoli.
I am not trying to blow legal smoke up your’s, or anyone else’s butt. I am trying to explain the decision of the Court in as plain language as possible, because I know that many people do not have the time to read a 200 page opinion.
But examples of laws that may now be open to being overturned are the ADA, the Civil Rights Act, the requirement that states have a 21 drinking age, Title 9.
I am going to assume, based on your questions that you are not an attorney, and that you have not made a study of Constitutional jurisprudence. If I am wrong, I apologize.
The Supreme Court may only strike laws if they are unconstitutional. But, the Court has long held that statues may only be struck down if there is no reasonable way to interpret them to be constitutional. If there is a reasonable interpretation that preserves the law, it must be adopted, regardless of if it is the most obvious, or logical interpretation.
In order to allow the Court to do that, it has adopted rules for itself. One of the most notable ones being the principle of stare decisis. But the rules that are most relevant to us are those adopted by the Court in the Ashwander case. See Wikipaedia for some more detail, if interested.
Another principle of Constitutional jurisprudence is that the Court may only decide on arguments presented to it. For example, the Court could not claim that the ACA meets Constitutional scrutiny because it is a use of the taxing power, but is unconstitutional because it violates the right to due process, because no one claimed that it did. If in some future case, the claim is made that it is a violation of the right to due process because of the hanky way it got passed, the Court could, at that time declare it to be unconstitutional.
In this particular case, Roberts ruled that the ACA is meets Constitutional scrutiny under Congress’s taxing power. Whether or not the ACA is unconstitutional on some other grounds is a question to be decided later.
Ted N wrote:
This.
@ Joseph: So, in other words, Chief Justice Roberts is internally inconsistent at the highest level.
Shiny.
It is a tax for the purposes of his decision, and it is a tax whether Congress calls it a tax or not, but when it comes to being subject to laws that specifically have to do with taxes, it is not a tax. He does not let Congress get away with calling the tax a “mandate” except the one time where it is convenient for him to do so.
Forgive me for being less than impressed with that particular stance.
@ Linoge:
Holy shit I’m eloquent!
@ Linoge:
I don’t think that Roberts is being internally inconsistent, nor do I think that he made the right call jurisprudence. However, I do believe that this is one of those cases where reasonable people may reasonable, and I find his logic compelling, even though the substance of the argument is not one that I think holds water.
Citiations, and footnote removed. Emphasis mine.
I find the dissenting arguement much more compelling. To whit,
However, my sympathy for the dissent’s argument does not mean that I cannot see the reasoning and logic behind Robert’s opinion. While I think he made the wrong decision, I don’t think that he made the whole thing up out of whole cloth.
TL;DR Congress choose to not make the AIA apply because of language used, but “Magic words” or the lack thereof have no relevance on the ACA’s Constitutionality.
@ Ted N: It happens
.
@ Joseph: If “magical words” cannot keep the Constitution from not applying to a law, then “magical words” cannot keep the law from applying to a law. Either we accept the law as a whole, to be applied equally in all cases, or we might as well give up on this endeavor right now.
@ Linoge: I am not, at this point, sure what we are disagreeing about. So let me make myself as clear as possible. I think the Court erred in affirming the ACA. Claiming that it is justifiable under the Taxing Power is not a “reasonable construction.”
However, I do not think the Court erred in ruling that the Anti-Injunction Act didn’t apply. Since the President, and Congress claimed up and down that it was not a tax, claiming that the AIA does apply makes no sense. If Congress had wanted to make the AIA apply, it should have used language consistent with that goal.
I do not like the ACA, and I am certainly not one of its supporters. I would like to see its repeal as swiftly as possible. But I am not willing to believe that Roberts was coerced into ruling the way that he did. This is one of those cases where I am willing to believe that reasonable people can come to differing conclusions. Do I think that Roberts is wrong? Sure. Would I have ruled differently? Absolutely. Do I think that Roberts is evil, or secretly a liberal, or gay, or any of the other theories that have been espoused? Not so much.
This:
If you are going to take the President’s and Congress’ wishes in mind when capriciously applying one aspect of the law, then you have to keep their wishes in mind when capriciously applying the rest of the law, otherwise you are, by definition, internally inconsistent. This is even more the case when your capricious bowing to their desires happens to “coincidentally” allow you to make a ruling you wanted to make for some unknown reasons.
In other words, as clearly as possible, Roberts treated the PPACA as ‘not a tax’ when it was necessary for him to do so in order to give him a chance to rule on the law, but then declared it to be a tax, for reasons that no one aside from him apparently understands. That is inherently contradictory and bordering on idiotic.
In any case, so far as I know, no commenters here nor I are proposing any conspiracy theories about Roberts’ motivations or desires, so that little strawman ought to run right along.
@ Linoge:
He’s really a Lizardman! Just pull off his skin, you’ll see! You’ll see!
@ Linoge: I did not intend to offend you, and I am sorry for any offense that I may have caused.
I also was not trying to knock down strawmen. The idea that Roberts was coerced has become part of the zeitgeist, and I was responding to that. Reading my comment a second time, I understand how one could reasonably interpret it to mean that I thought that you, or one of your commenters , was claiming Roberts was coerced. That was not my intent, and I am sorry that I worded my comment badly.
As to the substantive issue of Roberts inconsistency; I recognize that for Roberts to rule the way he did required him to engage in a great deal of sophistry. The argument that “The AIA doesn’t apply because they didn’t use the right labels, but it is still a tax even though they didn’t use the right labels.” is a sophist one. But I don’t think that the mere fact that it is sophistry makes it inconsistent. It just makes it douchebaggery.
@ Ted N: There. Now we can prop that little strawman up. Thanks
.
@ Joseph: I can live with “douchebaggery”.
@ Linoge:
A chance to scram about the lizardmen? Anytime!