Ken Cuccinelli, on second thought, likes Supreme Court health-care decision

The Washington Post ^ | 02:44 PM ET, 06/28/2012 | Laura Vozzella

[Hunton Peck]

CNN and Fox News aren’t the only ones doing a 180 on the Supreme Court ruling.

Virginia Attorney General Ken Cuccinelli II (R), the first attorney generalin the nation to file a lawsuit over President Obama’s health-care overhaul, said the sky was pretty much falling in a news release issued half an hour after the court upheld the law.

“This is a dark day for the American people, the Constitution, and the rule of law,” Cuccinelli said in the release. “This is a dark day for American liberty.”

By the time he held a news conference an hour and 45 minutes later, Cuccinelli had different take: “It’s mostly sunny.”

The reason? His first impression was based on the basic upshot of the ruling: The court had upheld “Obamacare.” His second was based on a closer look at the ruling, which he found upheld individual liberty and curbed federal power even as it left the law in place.

The court ruled that Americans could be required to secure health insurance, but under Congress’s taxing authority, not under the Constitution’s commerce clause. That means the “individual mandate” has been deemed a tax — a tax Cuccinelli...

[FredZarguna]

That was already unnecessary. Because ACA was passed via budget reconciliation, it could be repealed under the same abuse of the Senate's rules.

[Mack the knife]

But, given it’s a tax, is it a constitutional tax?

---

The Anti-Injunction law prohibits any Court from addressiing that issue until some part of that Tax is actually collected. If it first takes effect in CY 2014, that would mean that its constitutionality cannot be addressed until April 15, 2015 (or maybe 2 January 2015 for early filers).

Then, I concur with your analysis that it is not covered by any current taxing authority in the Constitution, and that the constitutionality of the tax should be attacked.

[FredZarguna]

There's no subtlety.

The ruling is an unmitigated disaster. Too many Conservatives are trying desperately to polish a turd. This isn't a victory. It can't be spun into one.

[FredZarguna]

The majority has already signaled in its opinion that it will not entertain such a challenge. In effect, they have violated the anti-injunction law with this ruling (another reason that it is so egregious.)

To wit:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it. A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. (pages 39-44)

[KevinB]

... that would mean that its constitutionality cannot be addressed until April 15, 2015 (or maybe 2 January 2015 for early filers).

I have made that point all day long. But then I read this quote from the opinion:

"....it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes."

Doesn't this mean that the constitutionality of the tax has been decided?

[Windflier]

The three branches of our government obviously no longer enjoy "the consent of the governed", therefore they are essentially illegitimate, possessing only the threat of force (and fear) to exercise power over us.

It's about time we all recognized this fundamental breakdown in the social compact, and made it clear to every agent of government in Washington. They need to be officially unrecognized by the people, and fired en masse.

It's time to simply pull the plug and start over. Heck, pull out the phone book and appoint new leadership from the first 545 names listed. Nearly anything would be better than this.

I'm not kidding. It's time for a civil rebellion, the likes of which this country has never seen.

[semantic]

Kabar, Roberts merely reiterated that for 225 years, Congress has had the ability to levy taxes; including non-activity as well as activity.

But there's a reason that during that entire time frame, Congress has never passed a law taxing inactivity - and why the 2010 Congress took great efforts in disguising its ploy.

Sure, in theory, Congress can tax you for not eating broccoli, not buying a Volt, etc. But, how does it actually gain the necessary votes to pass?

Think about the waivers & exceptions granted by the DHS that were crafted under the assumption of using the commerce clause for cover, which has -0- oversight and 100% discretion of the executive.

Now, the mandate is a poll tax. Exceptions, waivers, thresholds, etc have to be initiated in the House, passed & signed as law, and executed by the IRS.

If the executive were to have leeway on taxes, then any tax, whether it be income, property, etc, would all be subject to executive discretion.

Roberts dropped a bomb.

[kabar]

I am listening to Mark Levin's analysis of the decision. His Landmark Legal had filed an amicus curiae brief. What you are saying is so much nonsense.

According to Roberts, it is a tax but really not a tax according to Constitution and tax law. Roberts has exempted it from the normal rules applying to taxes.

The statists, Dems and Reps, will find the votes they need when they deem it necessary. We have set a horrible legal precedent that will exist even if Obamacare is repealed. There is no silver lining in this decision. It is an absolute disaster for individual liberty and the Constitution.

[paul51]

all politicians will come to love this ruling. It means the federal gov’t controls our lives, our earnings, everything we do, everything we own and everything we eat and breath. If you are a tyrant, what's not to love. The only card free men in this country have left to play is rebellion. Unfortunately, most capable of it have been neutered.

[skully]

But, given it’s a tax, is it a constitutional tax?

The Anti-Injunction law prohibits any Court from addressiing that issue until some part of that Tax is actually collected.

Exactly. This isn't the last time Obamacare will be in the courts.

[LibLieSlayer]

“ANYONE that supports this decision by roberts is STARK RAVING MAD”

Mark Levin 6/28/2012

[reformedliberal]

We’ve always been on our own. Many states never see Federal funds after a disaster. Besides, it basically just means loans for most people. Only the protected classes get actual grants of some sort.

People need to stop using the progressive template “Bush didn’t help New Orleans”. Actually, he did and if New Orleans had been majority white, no one would have said a word or cared. Perhaps the liberals would have complained about the waste of Federal tax funds on white people.

People need to be prepared for disaster on their own. Prepared to help the elderly and disabled. Prepared to rebuild with each others’ help.

Improvise. Adapt. Overcome. If States declined Federal intervention in the first place, they wouldn’t be dependent upon it in the second place.

Borders are a different issue, unfortunately, because it is a Federal obligation and this administration is declining the obligation to protect the border. The solution is to replace the administration with one that actually does its job.

WE are the answer and we can do it electorally.

Everyone also has to realize that the progressives are really enjoying our angst. We could stop the hand wringing and drama and deprive them of that.

[COBOL2Java]

Everyone also has to realize that the progressives are really enjoying our angst. We could stop the hand wringing and drama and deprive them of that.

Point well taken.

[JLLH]

I’ve been thinking the same thing. A rose by any other name.... Seems like a game of semantics to me. Whatever they choose to call it, it doesn’t change the fact that Americans are being compelled by the government to act in a certain way or face a penalty/tax/fine/whatever.

[Gopher Broke]

Like many things on WAPO, this is a complete distortion of what our AG Cuccinelli said.

For his ACTUAL words, see http://www.freerepublic.com/focus/f-news/2900924/posts

[Hunton Peck]

Thanks for posting that. It reads like the statement at your link was released after the news conference “reported” in this article.

But yes, the notion that Cuccinelli “did a 180” on the ruling was clearly a spin occurring only in the heads of the WaPo journolistas.

[BuckeyeTexan]

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[Salvation]

**the ruling, which he found upheld individual liberty and curbed federal power even as it left the law in place.**

BTTT — the truth is starting to come out. I saw it right away.

[rollo tomasi]

Since when is instituting/allowing a head tax which has not been enumerated under the Constitution (And never should unless two thirds of Congress/States, or 3/4 of State Legislatures to ratify, allow it) upholding individual liberty and curbing Federal power?

If Roberts wanted to uphold individual liberty and curb Federal power he would of ruled with Kennedy, Scalia, Thomas, and Alito who actually did.

What Roberts did was activism in the form of switching the penalty found unconstitutional (With Breyer and Kagan agreeing) under the commerce clause with a simple head/negative tax. I don't get why people are ignorant about the precedent Roberts set. For goodness sake, he was joined by Ginsburg, Sotomayer, Breyer, and Kagan in this respect.