Posted on 07/05/2012 2:42:28 PM PDT by neverdem
I've been a little surprised by the continued outrage on the right and chest-thumping on the left regarding the Supreme Court's health care decision. The right got everything it wanted in the ruling, save for the actual outcome. The left got legal reasoning that, up until the minute the decision was handed down, it had maintained would mark the end of government as we know it. Sad to say, but the main takeaway is that most court-watchers, left and right, care a lot about the outcome and very little about the law.
Some on the right are latching onto one bit of doctrine as cause for unhappiness in the case. In particular, they claim that John Roberts expanded the government’s taxing power substantially, such that it now provides an endless capacity that Congress lacked with the commerce clause.
This is nonsense. There are two reasons why. First, all nine justices, and even some of the lawyers arguing against the health care law, agreed that the individual mandate could be enforced under the power to tax. Here’s the joint dissent: “Of course in many cases, what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action, or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. . . . The issue [here] is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so."
In other words, the fight among the justices was not an epic struggle regarding the extent of the taxation power. It was a rather mundane fight over statutory interpretation, and whether the mandate, as written, could be construed as a tax or not...
(Excerpt) Read more at realclearpolitics.com ...
Yes he did. Now congress can pass a tax on anything or nothing. I think it’s pretty clear that this is the first tax for not purchasing or using something.
Let’s see: first Bob Tyrrell, and now this clown, masquerading as a constitutional scholar. The “backlash” against the “backlash” campaign seems well and truly under way, with the “silver lining” crowd trying to recapture their lost ground.
Not buying.
Did’t Roberts set dangerous precident by changing the wording in a statute under review in order to approve it?
Couldn’t future courts do the reverse?
Couldn’t future courts do the reverse?
It's unlikely that future courts would do the reverse. Courts, in general, are hesitant to overturn a statute if there is a way to construe the statute in a way that makes it constitutional. So, while a court may stretch the language of a statute in order to avoid overturning it (as the Court clearly did here), it's much less likely that a court would stretch the language of a statute in order to overturn it. In general, that's a good thing (as it limits the role of the courts), though in this case it led to an incorrect result.
Once upon a time an old man was trying to nap in the town square in Hammama, while some children exuberantly kicked a ball. Eventually their youthful play became too boisterous for the old man to ignore. He sat up and said, "Why are you children kicking a ball in the square in Hammama on such a hot day? Don't you know that over in the square in the next village they're handing out oranges?"
Upon hearing this, the children ran off, leaving the old man to drowse in peace. But within just a few minutes, he sat up, scratched his head, and thought, "Why am I napping in the square in Hammama on such a hot day, when they are handing out oranges in the next village?"
Conservatives, sadly, seem to have a capacity at least as large as the Arabs to delude themselves, as this article (and many others like it) prove.
Here's just one example of how tortured the author's "thinking" is in the instant case: He claims that people with the same income are paying two different tax rates if one buys an electric car, while the other fails to, because there is a tax incentive to buy electric cars. So far, so good... He then assures us that this is the same thing as paying a higher tax rate if one doesn't insure for health care.
"Consequently" he reasons (and I use both words very guardedly with respect to this author) Congress already has the power to do what Roberts' claims in his ruling.
But he is apparently unaware of the nature of the argument against the mandate. Whatever the tax consequences, neither of the taxpayers' in his example is forced to buy an electric car. Both make a voluntary decision. Neither would pay any penalty for refusing to buy a car. The author's argument that the differential tax rate is the same thing as a mandate to buy health insurance is as silly as the argument that I did not buy my daughter a car this year, but my neighbor did, and that therefore I have "saved" $30,000.
This idiocy has to stop.
The people trying to make an argument that Roberts has handed the left a stinging defeat are jackasses, and they need to be anathematized from conservative, libertarian, and Constitutionalists' company.
We lost. The decision is a shattering betrayal of the concept of limited government. It is the Dred Scott decision of our time.
Hey Trende, Roberts voted with Kagan, Ginsburg, Sotomayor and Breyer! Do I need to say anything more? He’s a freaking, cowardly traitor!
There is so much social engineering already in the income tax code that either taxes you; or exempts you from taxes; or grants you a “tax credit; that I don’t really know why this particular one makes people more upset than all of the other ones...
Yeah, maybe this one is the first one to “penalize you for not doing something” but that is just one little slip down the slope from all of the paragraphs that “reward you for doing something” that have been in the income tax code for decades.
...traitor Roberts commanded that, unlike any other tax in US history, the Obamacare tax cannot be constitutionally challenged once it takes effect.
the treasonous bastard is a one man Warren Court!!!
There is a huge difference between offering a tax credit for someone deciding to do something and taxing someone for not doing something. The latter is a federal police power that did not exist until June 28, 2012. Now people can be compelled to do what the federal government wants, and if they don’t, they can be taxed and put in prison for not paying the tax. This is how you create a Fascist state.
Exactly.
And the real biggie that so many are missing is that the states are now allowed to opt out with no penalty against current federal payments.
And this probably can be applied to the dept of education, state DOT programs and a host of others that have done our freedoms endless damage.
Further, making this law a tax law dooms it because it will collapse due to lack of funding, not only because we will vote against the tax, but because with 25% to 40% of the states opting out, the tax base for it will be decimated and the costs for those who opt in will go through the roof. And certainly no senator from a state who opts out is going to vote in the budget committee for funds to support it.
This is an opportunity to cure lots of bad law in addition to the bad health law.
“...huge difference between offering a tax credit for someone deciding to do something and taxing someone for not doing something...”
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Just semantics.
You don’t have kids? You don’t get the tax credit...
You don’t have a mortgage? You don’t get the tax credit...
You don’t give to charity? You don’t get the tax credit...
You don’t contribute to a 401K plan? You don’t get the tax credit...
You didn’t put in a new high efficiency air conditioner? You don’t get the tax credit...
You didn’t buy an alternative fuel vehicle? You don’t get the tax credit...
You don’t have health insurance? You don’t get the tax credit...
Such as it ever was, such as it ever was...
Exactly how did that power change? It appears that Congress got that power in the Constitution. Could the problem be in the people we elect?
It looks like the only limit on the power to tax rests with the people.
Justice Roberts actually echoed the same reasoning as a prior Justice Roberts in regarding the federal power to tax and spend for the “general welfare,” in U.S. v. Butler, 297 U.S. 1 (1936) regarding the Agricultural Adjustment Act. http://supreme.justia.com/cases/federal/us/297/1/
That Justice Roberts (for the Court) stated:
“The clause thought to authorize the legislation, the first, confers upon the Congress 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. ...’ It is not contended that this provision grants power to regulate agricultural production upon the theory that such legislation would promote the general welfare. The government concedes that the phrase ‘to provide for the general welfare’ qualifies the power ‘to lay and collect taxes.’ The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted. Mr. Justice Story points out that, if it were adopted, ‘it is obvious that under color of the generality of the words, to ‘provide for the common defence and general welfare’, the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers.’ The true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare.”
In that case, as in the current case, the Constitution grants the power to lay taxes for the common defence and general welfare of the United States. However, this does not extend to the creation of a federal program that exceeds the limits of the enumerated powers and invades or compels an area reserved to state jurisdiction.
Looks to me that these principles were decided decades ago.
Trende's point (which is an accurate one, if you read the entire decision & dissent) is that Roberts' agreement with Kagan, Ginsburg, Sotomayor and Breyer had nothing to do with the Constitutional power of Congress. All nine justices agreed that Congress has the power to impose a tax on people who do not purchase health insurance. That point is the point that expands the power of Congress
Rather, Roberts' agreement with the liberals (and disagreement with the conservatives) was not related to Congress's power to impose such a tax, but rather whether Congress did so in this particular case. That's obviously an important point within the case itself (and the outcome of the case itself is obviously important, and terrible), but it's not likely to have broader impact on future cases. The point that will likely have impact on future cases is the power of Congress to tax inactivity, and, unfortunately, on that point, all nine justices agreed.
I don’t think it’s going to be a “tax credit”....you will get CHARGED an extra $2000 for having no kids...
The one that makes my blood boil is the rule that you pass a law that does not allow anyone younger than 21 to drink a beer.
So we see these young men with no arms, no legs, a result of their volunteering to go to Afghanistan, unable to drink a beer even though they are encouraged to be killed....
But that is not manipulation by tax?
All states collect federal gas tax and various other road taxes, send it to DC but then are told to jump through hoops if they want to get any of it back.
But until now the federal gangsters have not had the power to shape our lives through taxation?
The taxation of the public and then the threat of withholding that tax from them has been one of the most dictatorial king-like powers of the federal government.
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