SCOTUS Triple Threat: Deconstruction of recent ObamaCare decision

The recent Supreme Court decision on ObamaCare has a bunch of folks all up in arms. Some people are depressed. But look on the bright side, there are 3 reasons to believe that the decision was beneficial:

1) The decision made some strides in limiting overreach from the federal government (it set a legal precedent for damage control).
2) The decision made the individual mandate into a "tax" on the middle class (something Obama swore up and down that he would never, ever do to us).
3) The Tea Party should be really fired up now (ready to throw the bums out in November).

Ed

Post 1

Thursday, June 28, 2012 - 6:09pm

Ed,

I agree that it will fire up the Tea Party, and it gives a bit more ammunition against Obama's claim of no new taxes, but I don't believe it put a cap on the use of the Commerce clause - it simply didn't extend the commerce clause to inactivity (to non-commerce). It didn't shrink the level of abuse we've seen of the commerce clause - and it could have totally reversed the abuse of the commerce clause... had Roberts chosen to side with the 4 'conservatives' and make a strong statement taking the understanding of the commerce clause back to what the founders intended.

Instead, what the ruling did was to say that any kind of penalty or fine can be called a tax and thereby applied against anyone that doesn't take some desired action and then the fined person doesn't get the usual trial to see if they are guilty and therefore lose due process before the taking of private property. You can now be fined for doing nothing and given no judicial recourse (no trial of the facts). That is a gigantic hole in our constitutional protection that was opened up by Roberts, the alleged conservative, who was put on the bench by Bush.

Post 2

Thursday, June 28, 2012 - 8:50pm

We are no worse off than we were when this thing originally passed; however, we are no better off, either.

One of the most unsightly aspects of this decision is that, from all appearances, what influenced Roberts was the overriding desire to not have the decision appear to be partisan. As if he was primarily interested in the legacy of 'his' court.

And, this is insight into how our process is largely of limited control, at best. It's still about egos.

Post 3

Thursday, June 28, 2012 - 10:37pm

Fred,

I think we are little worse off - in two ways.

One, we now see a massive deficit in Roberts that we didn't know existed - that's scary with the split being 5-4 or 4-5 on so many issues. We aren't really worse off, since he has, evidently always been a dog, but we didn't know it. So, in this case we are only worse of than we thought we were.

Second, The constitutional protection, thin as it was, against direct taxation has been pierced - no explanation as to how it is okay to tax someone because of a particular action (make that an inaction). And usually, with taxes, you don't have standing until it has been paid by someone which doesn't happen till 2014 (anti-injunction rule). And, as the other justices have been saying, this is case of WRITING tax law. So, we see more slices taken out of any reasonable interpretation of the constitution.

This business of calling a fine or penalty a tax is a major problem. It means that anything can be mandated and forced into place with fines... fines that are collected by the IRS. The Supremes never even considered that doing any kind of health care is not a specified power - where in the constitution does it give out that federal power? After today, it looks less and less likely that this supreme court would ever move in that direction.

I think we need to impeach a couple of those justices and put some libertarians in their place... just not sure how to go about that :-)

Post 4

Friday, June 29, 2012 - 8:50am

Roberts writes (emphasis added) ...

"Congress�s use of the Taxing Clause to encourage buying something is � not new. Tax incentives already promote, for example, purchasing homes and professional educations. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one."

Seems to me that by rewriting the law to make the penalty a tax, he has not so much declared the mandate constitutional as rendered it non-existent. Under his version of the law, the government does not 'mandate' the purchase of health insurance, but rather seeks to advance a public interest by encouraging the voluntary purchase of health insurance through new provisions in the income tax code. Much the same as it does with home ownership.

He sees the proper exercise of the taxing power in this context to be the encouragement of a preferred choice, not punishment for eschewing that choice.

Is it possible he is setting a trap for legislators?

(Edited by Ken Bashford on 6/29, 8:53am)

(Edited by Ken Bashford on 6/29, 9:02am)

Post 5

Friday, June 29, 2012 - 10:02am

I thought a link to the Supreme Court decision and opinions on the 2010 Affordable Care Act would be convenient.

Some comments from Richard Epstein on the decision are here. Illuminating as always, he is. I take some issue with his statement �There is no practical difference between ordering an action, and taxing or fining people who don�t do the same thing.� That depends on the order. In the extreme situation where the army was desperate for men to send to Vietnam or to other places in other wars---so conscripted the men---the practical difference was enormous. If I understand correctly, this would not undermine Epstein's position for cases such as the Affordable Care Act, cases not related to Defense powers of the Federal government.

Post 6

Friday, June 29, 2012 - 11:02am

Ken,

Hoping that Roberts really didn't pop up on the dark side and hoping that instead he "is setting a trap" is, I fear, wishful thinking. I sympathize with you because my mind scurried about trying explain this horrible defection. The thought that came into my mind was more conspiracy-minded - "Did people high up in a union threaten him or his family?" But, no, I'm afraid it is as simple as understanding that the same people that chose him (Bush Admin.) first wanted Harriet Myers. (Hell, if Obama weren't blaming Bush for everthing, I would be).

But regardless of what might have been going on in Robert's mind, he violated too many principles to imagine it as a trap... He rewrote law instead of just interpreting it. Encouraging a purchase isn't the same as taking someone's property as a penalty for not making a purchase. Encouraging is like marketing, like producing commercials, making speeches, or offering discounts. Tax incentives are like discounts. A fine isn't a discount. I certainly can see where you would think the phrase "properly exercised" taxing power might be a trap, because the mandate does violate the direct tax clause, but what he did was to SUPPORT this as a tax, when he should have shot it down as mandate under the commerce clause AND shot it down as a tax as well.

Robert's continued use of the word "encourage" just annoys me. After all, isn't putting a whip to the back of a slave an encouragement to work? Isn't the gun in the hand of a thug an encouragement to enhance his revenues? Robert's last sentences in that quote do what he did not have to do. They validate the mandate and do so under congress' power to tax - and because of the nature of this tax, it broadens the concept of constitutional taxation - breaking it free of the founder's intentions.

Stephen, thanks for the link to Richard Epstein's column. A very good read! He says, "There is no practical difference between ordering an action, and taxing or fining people who don�t do that same thing. If the Constitution limits direct federal powers, it must also limit Congress�s indirect power of taxation." You are correct in your disagreement - there is a difference. But not one that out weighs the point being made in this context. Epstein's point cuts right to the heart of the matter. The constitution's has but two purposes: To describe the structure of our government, and the deeply related, but more important purpose of limiting its power. The founders, in effect, said, "Here is the structure of our new government and it was chosen to limit the power of federal government." Whatever government does must arise from an enumerated power - that is the heart of constitutionality. Calling something a tax and then immediately saying, "That's okay, because it's a tax," while ignoring the context of it's use to force people to buy health care insurance is to avoid looking for the enumerated power that would justify requiring health care. As Epstein points out taxes have purposes - they are just half of the equation - the revenue side - and the other side is the spending. If government would not be permitted to do something by direct order, or regulation, then then they are not permitted to do so by taxation.

(Coincidentally, this smells a lot like Obama's czar of regulation's, Cass Sunstein, and his 'nudge' tactic as a way to get around constitutionality - see "Nudge: Improving Decisions about Health, Wealth, and Happiness" with Richard Thaler (Yale University Press, 2008). Given the close relationship between Obama and Sunstein, I'd like to know if he was one of the authors of ObamaCare's core concepts.)

And Epstein does a good job pointing out that taxes were intended to be directly apportioned - no special exceptions, and no uneven burdens. That was, as he says, because the taxes were tightly linked to the benefits to the people of United States as a whole. We all benefit equally from our lives being protected by military and therefore should share the burden equally.

Everyone should take a look at this very short column.

Post 7

Friday, June 29, 2012 - 1:08pm

Steve,

It�s not my intent to engage in wishful thinking or to find some way to get Roberts off the hook. I feel no less betrayed by his �defection� than you do, though I�m not sure what position of principle it could be said Roberts had previously held and from which we must conclude he has now defected.

However � the decision upholding the mandate as a tax and the reasoning Roberts used to get there begs the question: What next?

Assuming Congress feels constrained by Roberts� opinion to actually transform the penalty into a tax, in practical terms what would this tax look like and how would it be enforced such that it is clearly distinguishable from a penalty? In the language I cited earlier from Roberts� opinion, he suggests an answer. New provisions to the income tax code would offer write-offs in the form of a deduction or credit to those who choose to purchase health insurance. Considering the hundreds of other choices that a taxpayer can make in exchange for the privilege of keeping more of his property, how would write-offs in exchange for the purchase of health insurance be any different? To echo Roberts, this is not new. The fact that you and I abhor the use of the tax code in this manner is neither here nor there. What�s one more line on the 1040 to the IRS?

When I lawfully take a deduction for mortgage interest, does this mean I'm in compliance with a �mandate� from government to take out a mortgage for the purchase of my home? If I don�t have a mortgage and cannot take this deduction, does this mean I�m in violation of said �mandate�? Of course not.

So � pursuant to Roberts� opinion � how does Congress convert the �penalty� into a �tax� and still maintain that there exists a �mandate� requiring everyone to have health insurance?

To put it another way ... if, by changing 'penalty' to 'tax', the purchase of health insurance is rendered no less voluntary than the purchase of a house, then what becomes of the so-called 'mandate'? Seems to me the word itself is drained of its meaning. And if it is, what then?

Post 8

Friday, June 29, 2012 - 1:52pm

Ken,

To your questions... I have no answers.

Congress has shown that it will use whatever means available to achieve its ends. And how they might exploit this confusion from Roberts is beyond me. I don't think his reasoning has enough coherence to use it for making sensible projections as to what congress might do. But then congress doesn't require coherent, logical principles to justify their acts, so go figure.

Post 9

Friday, June 29, 2012 - 2:27pm

Steve,

The incoherence is astounding. Coming from such a presumably brilliant jurist, it begs for an explanation.

In the brief citation I quoted above, he compares purchasing health insurance to purchasing a house and suggests that offering similar tax incentives for either constitutes a similarly proper exercise of Congress' taxing authority.

But he seems conveniently unaware of the fact that to qualify for the mortgage interest deduction, one is not constrained by a government-imposed 'mandate' to purchase a house from a pool of government-approved properties.

Post 10

Friday, June 29, 2012 - 4:05pm

Ken, you are right. The difference between a fine/tax/penalty that is levied for NOT taking an action isn't even in the same room with being able to reduce your income taxes by some portion of the amount spent on mortgage interest.

These are the possibilities I came up with, if we want to try to understand why this man wrote that opinion:

He was poorly vetted and was not what we thought he was, and he may even have pretended to be a conservative until now.
He is creating a trap that when sprung will close the commerce clause hole... or something like that (I put this in for you. I don't see it.)
He responded to some kind of behind the scenes pressure (this could easily become some kind of conspiracy theory).
He has some strange idea of a need to balance the court, or to take stronger hold of the court to make it a Robert's court instead of a partisan court always divided on conservative/liberal lines
He has had a sudden, conversion and no longer sees somethings the way he used to.
He is having some kind of mental/emotional breakdown
He was under the influence of some medication and unable to think clearly enough to work his way out of the thought that this was a tax and therefore it's okay
He really believes that it makes sense to define taxes that broadly and that government has the enumerated power to tax without regard to what the reason for the tax is, how it is implements, who it applies to, or what it is for.

Take your pick.

Post 11

Saturday, June 30, 2012 - 4:50am

As balance to Professor Epstein (see Steve's link above), I offer Professor Barnett.

Whatever Roberts' motivation for reasoning and deciding as he did, I don't think all is lost for the cause of liberty and individual sovereignty.� Humans are imperfect, and it's foolhardy for the People to rest all their hopes for salvation on�the wisdom of a single man.� I daresay many of�those who voted for Obama in 2008 are�awakening to this reality, though�most of them may not be willing to publicly�say so.

In any event, I lean toward the Barnett view ...� and toward the optimism expressed in Ed's opening post.� The People have another chance�to steady the ship of state�and get it turned in the right direction come November.� And even greater motivation to do so than they had 2 Novembers hence.� If We do not elect leaders and representatives who will steadfastly promote the cause of liberty, individual sovereignty, and limited government ... if We instead continue to elect Republican seat-warmers for the true utopian statists ... then it is pointless folly to put the blame for Our failure on a single unelected Supreme Court justice.

(Edited by Ken Bashford on 6/30, 4:53am)

(Edited by Ken Bashford on 6/30, 6:48am)

Post 12

Saturday, June 30, 2012 - 8:05pm

I'd just as soon attribute this to a chronic case of the disconnected views from inside the Beltway Georgetown Bistro-itis. These people aren't concerned in the least with the consequences of their flailing around; the limo ride, paid for by slaves in the Districts, will be just as sweet in The Capitol.

And just like 'The Hunger Games,' the reason for most of this jerking around has little to do with the actual issue du jour, but simply to demonstrate that they can.

Please sirs can we have another.

Post 13

Sunday, July 1, 2012 - 10:57am

I've come to suspect, in absence of any evidence, that Roberts motivations might have been something like this: He was becoming deeply concerned that the Supreme Court was in considerable danger. That is was not just being seen as a group of ideological, partisan hacks that voted party lines, but that more and more the administration was actively working to undercut the court on a permanent basis. (Look at his his public attack on the Supreme Court during his that State of the Union speech).

Maybe Roberts even feared that Obama and the progressives were going to use the Supreme Court as a major campaign issue if Obamacare was declared unconstitutional and crush the image of the court in the minds of the public and that would damage the court for decades.

Maybe he feared Obama would decide to "declare" the court ruling as wrong, and choose to ignore it, thereby nullifying the separation of powers and the constitution itself. That would amount to a kind of coup.

Maybe Roberts thought that he could:

Place a kind of limit on the commerce clause,
Set limits on the forced spending of the states,
Justify the mandate as a tax, but do with logic so flawed that it was unlikely to ever be of use as precedent,
Provide the Republicans with more fuel to have the law repealed, and
Hang Obamacare around Obama's neck as a campaign albatross,
While protecting the court by letting Obamacare be the responsibility of Congress and the voters.

Maybe he is now just hoping that Obamacare will so anger voters that they will oust Obama and then the whole bill will be repealed, and those progressives that hate the constitution will be gone, and that the next Supreme Court justice to be nominated will be by Romney and not Obama. Mind you, I'm just making this up out of whole cloth and have no idea what he was really thinking.
--------------

And, Fred is correct in pointing out that reliance on a single Supreme Court Justice is futile. The real revolution, if it is to happen, and work, must be the electorate awakening, taking charge and doing so from the correct perspective - no more saviors, just small, fiscally responsible government that interferes as little as possible and treats the constitution as a serious limit on power.

Post 14

Sunday, July 1, 2012 - 2:30pm

what Roberts has confirmed is what we all have known for quite some time. conservatives are enemies of freedom and should be viewed as such. As far as the Tea Party, I think the same of them as well.

Post 15

Sunday, July 1, 2012 - 3:59pm

The community organizer with no private sector experience at all, the one with the purely academic experience that is yet embarrassed to release his basket weaving college transcripts, has just taken ownership of the US Economies in the coming train wreck.

He owns them, in the sense of, America is finally going to run the expensive experiment and learn the expensive lesson.

However, he and his have possibly correctly assessed that, in the coming train wreck, a hurting US electorate isn't going to analyze the details, it is just going to want government to make the growing level of pain go away, and will grant ever more power to 'The Capitol' in a futile and self-defeating attempt to make that happen.

And then they can bring 'fundamental change' to what used to be America.

This is going to be some massive cluster fuck; epic.

Post 16

Sunday, July 1, 2012 - 5:56pm

Michael,

I think you are both right and wrong. What you say about conservatives we elect, or that are appointed to the bench, is true - they are rarely trustworthy. And even the very best are going to have areas where they are awful. For example, both Rand Paul and his father Ron Paul are stanch libertarians EXCEPT if you are talking about abortion, and perhaps gay marriage.

But with the Tea Party, it isn't, by nature, as coherent, or defined a position as say the Social Conservatives, and it isn't an organization, like say the Republican Party. It is a strong movement among voters, not the professional observers, nor the politicians.

It is the description of those American citizens who decided to become active in favor of reducing government size, reducing government taxation, spending, regulation, debt and to increase the adherence to the constitution. I believe you will find nearly total agreement between those who would say they idenitfy with the Tea Party and those positions. And, strangely enough, there are many who agree with each of the principles, but adamantly deny that they are part of the Tea Party. This is a party that doesn't require joining, or registering. It is just a coorespondence with those beliefs and a determination to vote that way, and an emotional sense of taking the country back from politicians.

Now, there is great divergence on how far these things should go (just to the budget when Clinton was president or all the way to a minarchy?), but even if they currently have different stopping points, they are all going the right direction. There is also a significant minority of the Tea Party that are strongly in favor of social conservative issues (like prayer in public places, gay marriage, etc.) and this is a battle that will go on for a while, till the conservative wing of the Republican party is not just the majority of that party, but has become mostly libertarian (in a decade or so)

I would look at the tea party as nothing more (or less) than a grass roots awakening to the degree of statism we have acquired, and the dangers, and a determination to fix this at the voting booth. Their education in recent years has been considerable, but in terms of where it needs to be, it is still early times. Also, whether this or that part of the tea party is motivated by altruism or religion is not the key issue now. As we move forward they need to get a stronger and stonger awareness and better education - on key political principles and key economic principles. Eventually, they need to shift from altruism to rational self-interest... There is no such thing as too soon, but in terms of when it is critical.... that is down the road aways. Liberals, progressives, moderates, the establishment are all trying to define the tea party as kooks, as racists, as neanderthal right-wing, or some other undesireable group - but they are best understood as just all people who have reached a strong commitment to vote out all big government people and get a smaller government that is fiscally responsible (which is exactly NOT how proponents of big government want anyone to see them).

The Tea Party is the first step. No matter what you call it, the first step has to be voters unifed enough to take back control from the progressives - without them we are not going to get progressives out of power, we aren't going to effect good change. With the Progressives removed, the second step is to raise the level of understanding of the voters to much higher levels on political principles and on economic principles so that they continue to move in the right direction (this is hard, because many will see the job done in the first round and go complacent again), after that we need to change the educational system and the media should change in response to market pressures with this change in the voters and the passage of time.

All and all, we have a wait of several generations to see the system not just changed, but on a sound basis and with voters, officials, the educational system, media, all of whom understand better what it needs to be and can protect all gains in that direction. And this is seeing the current growing trend in an optomistic light. The progressives will take each loss, when they occur as an excuse to double down, and their willingness to lie and obscure their agendas give them big advantages, particulary in a crisis.

Post 17

Sunday, July 1, 2012 - 5:57pm

This is going to be some massive cluster fuck; epic.

Or it is going to be a time where we see the beginning of a pendulum swing back in the right direction, politically. And if that move is strong enough, the coming economic crisis can be weathered.

Kind of a crap shoot as to which way it goes. Given the size of the economic distortions in the economies due to fiat money, debt created to shift risk to others (pretending to make it go away), the tendency of people to panic during crisis (and the would-be tyrants tendency to use such crisis), and that the current level of education amoung voters... Well, the odds probably go to the cluster fuck - maybe 70/30?

Post 18

Monday, July 2, 2012 - 7:32am

What's done is done, but here's another tough analysis of the Roberts 'defection'.

The money quote ...

Until the Right understands that the Left cedes us � as the Times editorial so vividly illustrates � no legitimacy at all it will continue to be surprised by weak men like John Roberts, who allowed a rogue president to publicly browbeat him and the institution he heads � and then, when he had a chance to pay him back, turned tail and ran.

Post 19

Monday, July 2, 2012 - 8:18pm