SCOTUS Obamacare Watch (Update: Mandate survives as a tax? Yes)
Was Scalia’s Dissent Originally a Majority Opinion?
Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion http://lsolum.typepad.com/legaltheory/2012/06/evidence-that-the-votes-shifted-after-conference-initial-vote-to-declare-mandate-unconstitutional.html (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.
Essentially the Court accepted all of the legal arguments establishing that Congress cannot force people to participate in commerce, which arguments were derided by the law professor establishment, but accepted the argument that everyone thought was a sad joke and afterthought, that this was a tax even though Congress chose not to call it a tax.
Court holds NOT a tax for purpose of Anti-Injunction Act (which means can’t challenge until tax owed) but IS a tax for purpose of Congressional power.
Opinion now posted, here. It’s 193 pages.
Per ScotusBlog, here’s a summary:
“In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.”
Per ScotusBlog money quote: “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”
Haven’t read opinion yet, but per ScotusBlog and news reports, Roberts joins left wing of court in finding that mandate is valid under power to tax, but not under Commerce Clause or Necessary and Proper Clause. This is the argument no one expected to prevail.
Per Fox News mandate thrown out under commerce clause. WAIT — per Scotusblog survives as tax
Roberts now reading majority decision on Obamacare.
Sup. Ct. Opinion page not loading — must be inundated.
Court affirmed 9th Circuit striking Stolen Valor act as violating 1st Amendment. Alito, Scalia and Thomas dissent.
Court is in session.
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Before the start:
It’s on.
The Court comes into session at 10 a.m. There are other decisions pending, including on the so-called Stolen Valor law.
At some point not long after that we’ll get the first indications of how the Obamacare decision comes out. It may be crystal clear at first, or require more understanding than the folks at ScotusBlog can give us on the fly. Hopefully not long thereafter the actual decision will be available.
I’ll update as information is available, so refresh your browser frequently starting at 10:00 a.m. Updates will be at the top of the post, with the most recent on top.
+20-1
Comments
Kennedy would have tossed the whole thing.
That’s twisting the knife in the wound.
We seem to have lost the jury box, let’s hope we win the ballot box this November, because if not, there is only one box left.
The SC has declared the mandate to be a tax? Well, I have a suggestion for a tax cut….
Here’s a good quote from the end of Chief Justice Robert’s Opinion: “But the court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgement is reserved to the people.”
Sounds like “go vote the rascals out” to me.
Sounds like Roberts telling you your sphere of liberty is hereby further constrained, and now your only recourse is to petition politician to grant you leave in place of what was once freedom.
Which is music to the ears of every ruling class politician, of every political stripe.
No, SCOTUS says they can’t compel you to eat your broccoli, they can just tax you when you don’t.
Because they own you.
So. Roberts has gone full Souter. And once again the citizens have no recourse.
BANG… thud.
Reading the opinion, it looks like Ginsburg is more than a bit cheesed off at Roberts in the typical snarky Liberal way. Her opinion is very very windy.
I much prefer Scalia’s dissent. Haven’t gotten to Thomas’s yet.
It was a shared dissent with Thomas adding a brief individual note as rider.
Love this from the dissent: “The Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for purposes of the Anti-Injunction Act, [...] but is a tax for constitutional purposes[...]”
Right on! Albeit we’d probably get the same or worse (no limit to commerce clause) outcome if the anti-injunction act controlled, so oh well.
From Ruling (pg 4) [quote](b)
Such an analysis suggests that the shared responsibilitypayment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy healthinsurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.[/quote]
What does that mean? If you don’t have health insurance, that’s not unlawful, but failing to pay the penalty for not having it IS unlawful? Unreal.
I quoted you elsewhere on this …very succinct in your line: If you don’t have health insurance, that’s not unlawful, but failing to pay the penalty for not having it IS unlawful?
The Catch-22 in this ruling, that this “penalty” is really a “tax” is the concept of taxing non-expenditure versus income from work or gain from investment. If you are unemployed and have no investments, you are being “taxed” on savings….if there are any. It quickly becomes a “penalty” not a “tax” by the way it is written, since it applies only to those who do not pay. It actually becomes a “penalty” in IRS terms (Civil Penalty)if you do not/can not pay it with your return.
Thus, SCOTUS has illogically parsed the term “tax” from “penalty” simply because if you do not pay it, it reverts to “penalty” status at the IRS. It is a penalty, period.
As employers of 50+ employees drop their insurance in favor of the much cheaper “tax” for failing to do so, the “tax cum penalty” will fall on the employees.
part of the courts reasoning on why Obamacare is constitutional:
In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U.S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U.S. 22, 62. Pp. 31-32.
So Roberts concluded it was a tax under the power of the taxing clause and then “every reasonable contruction must be resorted to in order to save a statute from unconstitutionality”.
Damn this modern government – it is far from the Federalist Republic.
It appears that if Roberts can find any excuse, no matter how tenuous, to side with authoritarian government, he will do so.
Sadly true. Thanks, Shrub.
First, we kill all the lawyers…..
From the dissent:
“The values that should have determined our course to- day are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it un- dermines state sovereignty.
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provi- sions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most im- portant ones, for which reason they alone were embod- ied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”
From Justice Thomas’s brief dissent (he joined in the longer dissent with Breyer, Alito, Scalia):
“As I have explained, the Court’s continued use of that test [‘substantial effects’ test under the Commerce Clause] “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects inter-state commerce is a case in point.”
Obama has succeeded in changing the nature of our government. We no longer have a Constitution that tells us what the government cannot do to us. We now have a SCt-approved rule by man that tells us what the government can FORCE us to do.
Guarenteed , the 3 lesbians have turned Roberts. What can you expect from a sissy dandy with a fingerbowl at his table. Thank you Hugh Hewitt for your solid endorsement of him. Yet again you insiders are exposed as twits. l’m not surprised. Look to the Romney ,Beahnor crowd to make a appearance of attempt with a lot of dust raised to repeal knowing they dont have the votes in the senate. lts up to us. We need to raise unholy hell for as long as it takes letting them know we are on to them ,whichever party , & we will no longer tolerate slight of hand politics as usual.
Bottom line is that health insurance is no longer insurance but is instead now considered a tax. Since the tax is controlled by the federal Government then all health delivery will be controlled by the federal Government and no private entity can get in the way of that because it is federally controlled. In essence we now have single payer.
Because health delivery is now controlled by the federal Government then the regulations of health professions will now be federally controlled as well. The federal government can now set quotas for specialties. Aspiring medical professionals will not have the freedom to choose what they wish to be. They will have to comply with what the federal Government compels them to practice (general surgery vs. neurosurgery vs. internal medicine) and where they may practice (the quota for surgery is filled for that area so you must practice in this area instead).
As a doctor my freedom is dead. As a citizen my country is lost
Um, how do you derive any of that? If you’re this incapable of logic, you shouldn’t be allowed to practise medicine.
Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes.
Banned: Just Be.
But they also control exactly what kind of insurance I buy, (no catastrophic, last I heard) and who will be thrown in my insurance pool.
So I can keep my policy, but it will double because of taking out catastrophic, and maybe double again, because I am covering all those unhealthy people that wait till they need insurance to get it.
at least as I understand it so far … this is just an avenue to socialized medicine. we will hate private insurance, because they will make it so expensive.
You also should realize that there is, as of yet, nothing forcing doctors to accept any particular coverage plan so doctors may not accept government controlled coverage plans. Medicare and Medicaid are already problematic because of the dwindling numbers of primary care physicians accepting those patients due to poor reimbursement.
As has been seen around the world in places with government care, access actually decreases and quality decreases.
Where did they address the constitutionality of forcing someone to purchase something from a private provider? Does terming the “penalty” a “tax” finesse this question?
This is just a dog-awful ruling and Roberts is the worst Chief Justice in history.
Good point.
He seems to care more about prior legal precedent and finessing meaning through them rather than looking to the Constitution and Federalist Papers as a guideline through which to apply those precedents.
The answer to that question is, by the scope of their ruling they don’t need to answer your question. The issue is moot, Congress has an unfettered power to tax and tax you they will.
People thought that the camel’s nose in the tent was the expansive reading of the Commerce Clause, no it is the unlimited power of the Internal Revenue Code.
The congress has the power to tax incomes under the 16th amendment. There’s no restraint on how they do so, unlike the other taxing provisions in the Constitution.
If they want to say “everyone will pay $500 in ACA tax” they can do that under Article 1 section 8; if they want to say “unless you have insurance” they can do that under the 16th amendment.
Sidenote: Where I tend to get ticked off is the number of refundable tax credits… Progressives (read: Marxists) love shoveling in refundable credits to help lock in their voting base to pay for an ever-increasing social welfare state.
However, I actually give Chief Justice Roberts some credit for trying to do the best he could — he did, after all, eliminate the Commerce clause as a justification for the ACA. If the tables were turned, we wouldn’t want the court deciding a law was invalid just because the court didn’t like it — as long as it was properly constructed under the legislative powers granted by the Constitution.
Since it all hinges on whether or not it is proper for the court to consider the individual mandate as a tax — because Congress DOES have the power to tax — I’m dissapointed, but not appalled, by Chief Justice Roberts’ action. I would have been much happier with the dissent’s decision to toss the whole thing, but I can live with a “fix it at the ballot box” ruling that doesn’t throw the doors wide open for Congress to control everything under the sun by means of the Commerce clause.
The new normal: Governmant can force you to purchase anything from a private entity and if you refuse such a purchase, you are taxed for your non-compliance. If you refuse to pay the tax, it is a crime. So, we should all be petitioning our government for manditory gun ownership.
I’m so sick of hearing that people lacked “access” to medical care. What they are really whining about is that medical care was expensive and they didn’t want to dig into their own pockets to pay for it.
The whole point is that you’re not forced to buy anything. You can pay the tax and be free to go uninsured. But if you choose to buy insurance then you’re exempted from the tax.
You criticize someone else for a failure of logic yet you come up with that line of nonsense?
Like taxes are not coercive? I guess the tax is voluntary, it’s just the enforcement that gets downright coercive.
So, the government cannot force you to eat your broccoli, they can just tax you when you don’t.
Is there any limit to what form of inactivity cannot be thus encumbered?
Since it is now apparently constitutional to impose a tax on a failure to conduct commerce, I have a list of suggested new taxes for the Democrats to propose.
Death Tax: Since the government has expenses when you die without life insurance, it shall be required for all people to carry a minimum of $100,000 in a Federally Approved life insurance policy, or pay a $150 fine annually.
Music Tax: Since it is in the public good for everybody to experience music, there shall be a $200 annual tax on anyone who fails to purchase and maintain a Tuba, Bassoon, or other such musical instrument. (no Gibson guitars)
Gun Tax: To protect the people, an annual tax of $300 shall be imposed on everyone who does not own a firearm with demonstrated knowledge in its use.
Tobacco Tax: Since taxes on tobacco go to protect our most vulnerable population, the children, those nasty non-smokers shall be taxed for $200 annually.
Free Speech Tax: Since our freedom to speak our mind is so critical, a tax of $250 annually shall be imposed on those who do not criticize a politician of their same party a minimum of 4 times a year.
Tax Tax: Since those who do not pay taxes are stealing the bread from the poor, a tax of $100 shall be imposed on those who do not contribute to the Federal Government at least $100 in taxes of any type.
Heck, we could knock that deficit out in a few short years
/sarc
Hey, the first plan was always to take back the WH and Senate and then take out ObamaCare. That’s still what we’ve got to do.
I am absolutely disgusted with John Roberts. First the AZ case, and now this.
Un-friggin’-believeable.
I’d be curious to see the end of day tally of political donations today. Not just for Romney, but for all sides, individual candidates and PACs.
Romney donation spike $200k in first hour or so after Obamacare ruling
DOW plunges 140%
edit
DOW plunged 140pts
More will Die unless they receive the largest tax increase in US History
I hereby take back what I said about Chief Justice John Roberts. Nothing like a shower to clear one’s head.
I think with the last three decisions: AZ, Alvarez, Obamacare, he has done us a service. The CJ has accomplished three things with these decisions: he has inflamed the nation against Obama; he has pushed us rightward because we are demanding more constitutionalist congress critters, more than we were before; and, he has forced us to demand people who will be accountable to us so that anti-liberty legislation does not have to reach the court for a decision.
So, three cheers for the CJ’s contribution to the Tea Party agenda!
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Here’s my question. Reduced to its essence, the Chief’s rationale for sustaining the statute under the tax power is that it is a tax on “not having insurance.” Broad though the tax power be, where has a tax ever been lawful on owning and doing nothing? You can levy a tax on owning property (Estate Tax) giving it away(Gift Tax) earning it (income tax) buying it (sales tax) selling it (excise tax) but I am unfailiar with any statute that has levied on not doing any of the foregoing. In the example in the opinion, regarding a tax on not having thermal windows, the taxpayer still owned the house and the windows in it. Here, an uninsured taxpayer has nothing, no policy, likely no health need for one. To impose a tax on that mere status, is as absurd as to say the decision to do so is “activity” for commerce clause purposes, which the Chief got right. Even the dissent, which was mostly right on, never addressed the issue of what was actually being taxed, albeit mostly because they didn’t buy that it was a tax at all. Taken to its logical extension, today’s decision stands for the proposition that the Congress can’t make you eat broccoli under the commerce clause, but can tax you for not eating it under the tax power. God help us when the left figures that out.
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