Posted on 06/29/2012 10:23:10 AM PDT by Sopater
In his deciding opinion in the cases challenging the Patient Protection and Affordable Care Act (AKA Obamacare), Chief Justice John Roberts first says the mandate in the law requiring individuals to buy health insurance is not a tax.
Then he says it is a tax.
He upholds the individual mandate—as a tax, not a penalty—as the law of the land. But then says it would not be "unlawful" for Americans to violate the law's mandate that they "shall" buy health insurance--as long as they are willing to pay the "penalty" for not obeying the law.
Roberts first examines the question of whether the Anti-Injunction Act prohibits Americans from bringing suit against Obamacare at this time.
“The Anti-Injunction Act provides that ‘no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed,’” Roberts explains.
“Amicus contends that the Internal Revenue Code treats the penalty as a tax, and that the Anti-Injunction Act therefore bars this suit,” says Roberts.
“The text of the pertinent statutes suggests otherwise,” Roberts continues. "The Anti-Injunction Act applies to suits ‘for the purpose of restraining the assessment or collection of any tax.’ Congress, however, chose to describe the ‘[s]hared responsibility payment’ imposed on those who forgo health insurance not as a ‘tax,’ but as a ‘penalty.’ There is no immediate reason to think that a statute applying to ‘any tax’ would apply to a ‘penalty.’
“Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes,’” said Roberts.
Roberts thus concludes that because Congress calls the penalty for not complying with the individual mandate a “penalty” not a “tax,” the "penalty" therefore is not a "tax."
“The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-injunction Act,” writes Roberts. “The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.”
Got it? The chief justice of the United States says the penalty for not obeying the individual mandate is not a tax, it's a penalty. Therefore, the court can rule on it at this time.
Remember: Roberts says, It's not a tax, it's a penalty.
Roberts then rules that the Commerce Clause, which gives Congress the power to regulate commerce among the states, cannot be used to justify a law forcing people to buy health insurance because people who are not buying health insurance are not engaging in commerce that can be regulated.
"The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity," says Roberts. "Such a law cannot be sustained under a clause authorizing Congress to 'regulate Commerce.'"
That's pretty straightforward: Commerce is commerce. Not engaging in commerce is not commerce.
But then the chief justice turns to the question of whether the Obama Administration can use the Taxing Clause of Article 1, Section 8 of the Constitution to justify imposing the individual mandate to buy health insurance.
Now, the "penalty" which Roberts says was not a "tax" in the first part of his opinion becomes a "tax" in this part of his decision.
“The Government’s tax power argument asks us to view the statute differently than we did in considering its commerce power theory,” writes Roberts. “In making its Commerce Clause argument, the Government defended the mandate as a regulation requiring individuals to purchase health insurance. The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.”
“The most straightforward reading of the mandate is that it commands individuals to purchase insurance,” Roberts says as he begins the process by which he transforms the “penalty” he discussed earlier into the "tax" he will discuss now.
“After all, it states that individuals ‘shall’ maintain health insurance,” Roberts continues. “Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.
“Under the mandate, 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,” says Roberts. “That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, 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 income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”
Roberts then reflects back on the stubborn fact that the law Congress actually enacted specifically calls the “penalty” a “penalty” and not a "tax."
“It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax,” says Roberts. “But while that label is fatal to the application of the Anti-Injunction Act, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.”
Roberts then concludes that he while he considered the "penalty' and "penalty" in determining that his court could take up Obamcare and rule on it, he will now consider the “penalty” a “tax” for purposes of allowing Congress to force people to buy health insurance.
“The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty,” he says.
He then further concludes that it would not be “unlawful” for Americans to disobey the law’s declaration that they “shall” buy health insurance, so long as they pay the "penalty"—or, strike that, the "tax"--for disobeying the law's unambiguous mandate.
“While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful,” says Roberts. “Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.
In the end, then, for those who actually have to pay it for exercising their freedom in not buying the health insurance the government says they "shall" buy, it is neither a "penalty" nor a "tax," but merely a required "payment to the IRS."
Roberts graduated from Harvard College and Harvard Law School. He was appointed chief justice by President George W. Bush.
While its true that I’m a lawyer, I read his opinion yesterday and thought just about any literate person would see the obvious contradictions and logical failures in this opinion.
I have read many Roberts opinions and hundreds more court opinions.
There is no conclusion for me other than that he changed his mind likely less than a week before the decision.
The language of the dissent (which reads like majority) combined with his extraordinarily unsound reasoning confirm to me that something or someone significantly intervened to save this law.
We will likely never know what it was, but I’ll never be convinced that he voted at conference to uphold the law.
Hopefully Scalia or Thomas will one day blow the whistle, but I doubt even they know what happened.
Furthermore I suspect that Roberts actually wrote the dissent since there is a joint dissent with no author mentioned. Perhaps the 4 conservatives just left the former majority opinion in place so that it would haunt Roberts forever.
It has to be the most ridiculous line of legal reasoning ever concocted. He is a smart man, he probably laughed his head off writing it, but he wrote it anyway.
http://2012.talkingpointsmemo.com/2012/06/nancy-pelosi-health-care-law-supreme-court-obamacare.php
El Dictator Obozo to John the traitor, "Hey Justice John, Nancy is really great in bed isn't she, and her pictures of you in bed with her are ready to go on You Tube if you don't vote for us!"
A question for all of us: "When and how did Pelosi know that her side would win?"
So according to this logic if the Fed government put a $100K “tax” on abortions would it be fine because it’s not a “penalty” but a “tax”?
The only trouble I have with Roberts is that he’s naive.
He made a ruling based on a real obligation to uphold the constitution. He was technically correct in ruling the law constitutional. He probably changed his mind at the last minute because of a crisis of conscience.
But what he doesn’t appreciate is that the other side will not do the same for conservatives. Democrats will say “thanks”, then go back to ignoring the constitution and screwing us.
This is exactly how the mob works. They come to you and say, if you don’t pay us, your business will burn down. It’s not a penalty for not paying us, it’s just life. The IRS has always worked on Mob Rule, but this has gone to far. This is extortion.
Scalia's dissent makes exactly the same argument, only in reverse: 'Whether the “penalty” [that was the subject of United States v. Sotelo] was a “tax” within the meaning of the Bankruptcy Code had absolutely no bearing on whether it escaped the constitutional limitations on penalties.'
And WHY haven't the Republicans challenged this in court? Couldn't Romney just declare 'waiver for all' if 0bama's precedence for such waivers is legal?
roberts is not and never was qualified... he lied his way into the position.
LLS
Roberts isn’t worthy to shine Scalia’s shoes.
It’s a tax that is paid to insurance companies?
The SCOTUS just set a precedent that we pay our taxes not to the IRS but to health insurance companies.
So, the next time we file our 1040s we’re supposed to pay our tax to a health insurance company instead of to the IRS according to Roberts.
roberts is worthy of a trial for treason.
LLS
That is a great point!
I should have already thought of that. We see tax credit shenanigans all the time, but those originate in the Congress.
Now POTUS is allowed to unilaterally grant tax waivers?
Roberts is going to regret this opinion sooner rather than later IMHO.
He will wince at the very thought of it.
I think the logic (or lack) would say the government could put a "tax" on NOT having an abortion, just as it put a "tax" on NOT having health insurance.
Everyone who ever voted Democrat from time immemorial is to blame.
Americans may not have what they always wanted, but they got what they deserve!
Roberts is a gutless POS and an idiot who voted to uphold so that people wouldn’t think poorly of the court. He can FOAD.
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I think we’ve now entered the realm of quantum law. The fee is both a penalty and a tax like light is both a wave and a particle. I assume we can pay it with printer paper which is both printer paper and currency.
I said pretty much the same thing today. We now have a legal system where things can be both true and false until they are observed... but the act of observing it doesn't fix the state, like it would with ordinary quantum theory, but would instead revert to the quantum state when not observed. Thus it can be "not a tax" for passing the Congress, and "yep, it's a tax" for purposes of the USSC. And in fact we can extend this to general law: tax evaision is not illegal when Rangle does it, but is when you or I do it; illegal immigrants aren't breaking the law, but you or I expressing displeasure with out government overlords rulers divinely appointed overseers is; expressing disapproval toward homosexual conduct is illegal, but violently beating those disproving of it is not.
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