Posted on 06/28/2012 10:25:40 AM PDT by US Navy Vet
SOMEBODY give us SOME hope!
“The Anti-Injunction Act prohibits the Court from ruling on the Constitutionality of a tax until someone actually pays the tax. If Obamacare survives repeal efforts, then in 2014, someone will pay the “tax” and then challenge its Constitutionality.”
That is not what the opinion says.
* On the one hand, Roberts holds that, for the purpose of the Anti-Injunction act, the penalty in the mandate is NOT a tax. Therefore, the anti-injunction act does not apply.
* OTOH, Roberts then holds that, for the purpose of determining whether the penalty is a proper exercise of Congress’ taxing power, that it is a tax.
I know it sounds stupid and it is. But I just finished reading the decision (I practiced law for 20+ years) and that’s exactly what it says.
The challenge based on whether the penalty is unconstitutional is OVER. DONE. FINISHED.
Silver linings:
1. Obamacare is issue #2 after the economy. Its unpopular and will help Obama lose.
2. 5 Justices said Obamacare violated the commerce clause.
3. 4 Justices want to throw ACA out entirely. It survived only very narrowly.
4. “It’s a tax!” Obama’s hypocrisy on this exposed.
5. Opponents will be fired up. We HAVE to defeat Obama now to repeal Obamacare.
Silver linings:
1. Obamacare is issue #2 after the economy. Its unpopular and will help Obama lose.
2. 5 Justices said Obamacare violated the commerce clause.
3. 4 Justices want to throw ACA out entirely. It survived only very narrowly.
4. “It’s a tax!” Obama’s hypocrisy on this exposed.
5. Opponents will be fired up. We HAVE to defeat Obama now to repeal Obamacare.
“But the principle that the commerce clause is a LIMITED power is one that will no doubt be cited so long as America and the concept of a government of limited and enumerated powers endures.”
That doesn’t matter much when, in the same decision, Roberts expanded the taxing power to allow the government to penalize any activity or non-activity. It just means the blah blah in the preamble to the bill will be a little different.
And, amazingly, Roberts did so despite that the government did not even raise this issue because Obamacare says over and over that the mandate is a ‘penalty’. Thus, Roberts had to twist himself in pretzels in the decision to find that the penalty was really a tax.
This is no silver lining at all.
My husband and I live in CT, but near the MA border. We were very active in Sen. Scott Brown's "the people's seat" campaign back then.
We were stunned at the sheer numbers of Democrats (many union members) who came up to us - some were MEN in tears - absolutely outraged (and fearful, in some cases) in being forced to ditch their private health insurance for ObamaCare and stated that - for the first time in their lives - they were going to vote for a Republican (Brown). ObamaCare was the sole reason.
The GOP needs to tap into those voters again in 2012.
The one silver lining is that forcing the Medicaid expansion on the States was declared unconstitutional. Hopefully, most states will refuse to take on those extra costs. That will mildly affect the implementation of the bill.
Hmmm.... interesting. I hope you're right.
If the only way to escape life under ObamaCare is to move to an "opt-out" state - a Red State obviously (if I understand the ruling correctly), then hubby and I will move out of The People's Socialist Republik of Connecticut by 2014.
The Supreme Court once upheld slavery and segregation, and look what became of them.
Sorry I disagree, this mandate was presented as a fine all throughout this fight. They finally admitted it was a tax during the final hearing in front of the Supremes. How can something be passed as a fine, and then declared as a tax by Roberts? Isn’t this judicial activism at its worst? I truely believe Robert’s is too compromised to sit on the court. As a adoptive mother myself, I believe this has to do with Robert’s children. Illegal adoption?
WHEN? We'll be there, like we were in March 2010 when we tried to stop this monstrosity.
I will always love the many GOP Congressmen and women who literally were out there "in the trenches" with us (outside the US House): ie, Steve King (IA), Michele Bachmann, Mary Fallon (now OK governor), Louie Gohmert, Marsha Blackburn (TN), Phil Gingrey, so many others whose names escape me at the moment.
Taxes already reward or penalize activity or non-activity. Having a child is a choice, marriage is a choice, buying a home and paying a mortgage is a choice - all involve particular tax benefits or penalties.
Not that I agree - I think equal protection under the law means that we should all pay at the same rate - currently around 18% IIRC - no matter our particular circumstances. But I don't write our tax laws, or get to rule on their Constitutionality.
And under our system - someone has to PAY the tax before they have standing to challenge the tax. Not sure I agree with that either - but it is what it is.
“But we already knew, or should have known, that Congress has that power, so long as the language in the legislation implies it.”
Implies it, okay, I guess so. Because there’s no way to stop the tax code from social engineering. But not implying and rather coming out and saying it is another thing whatsoever. I was not aware that Congress can mandate us to do anything it wants so long as it calls the penalty for not doing so a tax. If that was the case, then the taxing power is infinite and there’s no point in having a written Constitution.
And he says Congress is granted the right to tax under the Constitution (correct).
___________________________________________________________
But it was not passed as as a tax, in fact, it was denied by the Democrats and the President that it was a tax. Had it been labeled as a tax, it would not have been passed. Roberts has just parsed the language and created something that didn’t exist: a tax. Shame on him!
Yeah. If nothing else, maybe it’ll wake people up to at least NOT vote for Obama again, and make them good and mad to boot.
“Taxes already reward or penalize activity or non-activity. Having a child is a choice, marriage is a choice, buying a home and paying a mortgage is a choice - all involve particular tax benefits or penalties”
Yes, and that’s a big plus in favor of the flat tax. But nevermind, there’s something else involved here. It’s not just that they tax married couples and mortgage payers different than single people and renters or outright homeowners. Now they’re explicitly ordering you to buy insurance and threatening you with a penalty if you don’t.
That’s different than different rates for different behavior.
What utter B.S. I suggest you listen to Mark Levin today. It should be quite informative.
I know enough to know this ruling is highly destructive to our Liberties. It is activism at its worst.
Congress cannot be the sole judge of the scope of its own powers. Today a majority of the Roberts Court reaffirmed this vision.
So, maybe instead Congress just got reigned in. We know that Congress has been acting as if it has unlimited range and reach of powers for a long time. I'm seeing many opinions now that this thrill ride is over for them. We'll see. That link is worth your while, btw.
Nice post, Doc.
I have not had a chance to read the opinion yet and have not read the ACA. Maybe you can help me think through this. The Court said that the commerce clause does not give the government the power to mandate that people buy insurance. So that tells me the ACA didn’t mandate that people buy insurance. If it said that, the mandate would not be constitutional because it exceeded government power. So the ACA must instead say that anybody who doesn’t buy insurance will pay this fine, which has now been defined as a tax. As a tax, a repeal can pass the Senate with only a simple majority. Or, if it is not repealed, after paying the tax someone could appeal the legality of the tax. Is that a correct analysis?
So did Roberts make it easier to repeal this and stop it legislatively? Was he looking down the road at the democrats tactics?
I’m sure a few state’s attorney’s general’s will now find the stones to make “Justice” Roberts get out his pen and provide the Court’s Constitutional definition of just exactly what a tax is....and perhaps he can also find enough gray matter to explain to us why this “special tax” is NOT a “head tax” or a “poll tax”
“A poll tax (head tax or capitation tax, per U.S. English usage) is a tax of a portioned, fixed amount applied to an individual in accordance with the census (as opposed to a percentage of income). When a corvée is commuted for cash payment, in effect it becomes a poll tax (and vice versa, if a poll tax obligation can be worked off). Head taxes were important sources of revenue for many governments from ancient times until the 19th century. There have been several famous (and infamous) cases of head taxes in history, notably a tax formerly required for voting in parts of the United States that was often designed to disenfranchise poor people, including African Americans, Native Americans, and white people of non-English descent (e.g., the Irish). In the United Kingdom, poll taxes were levied by the governments of John of Gaunt in the 14th C., Charles II in the 17th and Margaret Thatcher in the 20th century.
The word poll is an English word that once meant “head” - and still does, in some specialised contexts - hence the name poll tax for a per-person tax”
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