June 28, 2012

Constitution 1 - Taxpayers 0

Fellow freedom advocates, do not panic. Step back from the ledge. By a single vote the Supreme Court has avoided a catastrophic expansion of the Commerce Clause. The rest, as they say, is politics. Including Chief Justice Roberts' ruling:

"If an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes," Roberts writes. He adds that this means "the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning an income."

Hmmm, that's pretty thin Jim. The minority counters:

Justice Anthony Kennedy, usually the court's swing vote, dissented, reading from the bench that he and three conservative justices believe "the entire Act before us is invalid in its entirety." In a 65-page dissent, he and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dismissed Roberts' arguments, writing that there is a "mountain of evidence" that the mandate is not a tax. "To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it," they write.

Very persuasive. So my conclusion is that Roberts just didn't want to be villified as an "unelected emperor" who "took away America's free [unearned] health care." I agree with Yahoo News' Oliver Knox who writes-

But while Obama initially kept quiet, the early response from the law's main supporters and detractors showed that the court's ruling had essentially offered the Affordable Care Act only a reprieve, and that the law's fate was entwined with the results of the presidential election.

Finally, does anyone suppose that news outlets are falling all over themselves to get the "Obamacare Constitutional" message out as quickly as possible?


No mention of the name of that tenth justice.

UPDATE: As of 11:57 am EDT that headline has been changed to: Individual mandate survives a 5-4 vote with Roberts voting to keep it

2012 Election Don't Demand the Unearned Health Care Obama Administration Posted by JohnGalt at June 28, 2012 11:36 AM

Well said Sir. I was making the same argument to a despondent relative. I would have loved another decision but trimming the Commerce Clause is an excellent consolation prize.

QOTD Nomine from Insty: This just supports what Mike Graetz told me in Tax class years ago: "The constitution stops where the Internal Revenue Code begins."

Posted by: jk at June 28, 2012 12:03 PM

Had the reach of the Commerce Clause been expanded it would have been time to start researching emmigration to New Zealand. As it is we still have a Constitution to stand on and fight back against the tax and spend dragon.

As my father and I agreed this morning, the ultimate cause for the inability of the Supreme Court to vacate this law is the Sixteenth Amendment.

Posted by: johngalt at June 28, 2012 12:10 PM

I must backtrack to say "similar" argument. I dissent that Chief Justice Roberts was somehow bent by pressure. The Court did us a service on the Commerce Clause but -- post 16th as you describe -- the taxing power is pretty much unlimited.

Not the ruling I wanted but not indefensible.

Posted by: jk at June 28, 2012 12:17 PM

I am happy to agree with the sober and logical assessments here rather than the End of the World as We Know It analysis of some of my friends.

As a Libertarian Reaktionary (that's my brand-new term for my philosophy), I argue that this decision couldn't be better at waking some of the sleepers. Gurdjieff would have approved.

Posted by: Robert at June 28, 2012 2:30 PM

I'm getting a little work done today and have not read the opinion yet. But here is a very interesting piece on this as a continuation of Lopez and shift in gestalt from islands of liberty to islands of authority.

Warning: Mr. Solum types even worser than me!

Posted by: jk at June 28, 2012 2:38 PM

Even better! Salon dude suddenly realizes that the crafty Roberts has lost a battle to win the war: Link.

Posted by: Robert at June 28, 2012 2:57 PM

I admit the motive I attribute to Roberts is pure speculation but I stand by it. I think he did it not for vanity but for what he perceives to be best for the national polity. The matter can only be justly resolved, he may believe, through democratic election. This is a fair opinion to hold, for any individual NOT a justice of the Supreme Court of the United States of America as Constituted.

Further thought has me spoiling for a fight over the notion that Roberts' position is defensible under the law- Prior to the inequity of the Sixteenth Amendment the Constitution prohibited unequal taxation, and even after that amendment it allows inequity only in taxation on incomes. The Obamacare "tax" applies only to the class of persons who are uninsured and is therefore not a uniform tax, but punishment for a personal act contravening the wishes of the Legislature. It summarily declares such persons guilty of some crime and punishes them without benefit of a judicial trial. It is effectively a bill of attainder, expressly prohibited under Article I. Section 9.

I submit that this line of reasoning is, at the very least, as defensible as Chief Justice Roberts'.

Posted by: johngalt at June 28, 2012 3:07 PM

@Robert: YES! I was just going to post that -- must read!

And most closely resembles my personal early opinion. Getting rid of Wickard would be even better for liberty than getting rid of the ACA.

Posted by: jk at June 28, 2012 3:07 PM

@jg: Book me passage for two to your world, bro -- it would be a great place to live.

Seriously, while you are correct, 'round these parts, Congress's taxing authority is limitless. Much better examples of bills of attainder have passed with little scrutiny. Let me say "defensible" in the context of Solum's gestalt.

Posted by: jk at June 28, 2012 3:20 PM

Slate guy: "Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade."

i.e. To benefit the "national polity." I still think interpreting it as a tax was incorrect but can now forgive Roberts for the error. Especially given Sarah Palin's latest Tweet: "Thank you, SCOTUS. This Obamacare ruling fires up the troops as America's eyes are opened!"

Posted by: johngalt at June 28, 2012 3:24 PM

The Solum piece is very instructive brother. Thank you. Mine was certainly "a pre-New-Deal vision of real and substantial limits on Congress's enumerated powers" along with Justice Thomas. But as an agreeable sort I can be persuaded to join forces with the "alternative gestalt." [Fourth from last paragraph.]

Posted by: johngalt at June 28, 2012 3:42 PM | What do you think? [11]