Roberts Didn't Expand Government's Taxing Power

realclearpolitics.com ^ | July 5, 2012 | Sean Trende

[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...

[free me]

Because for the first time EVER the SC has ruled a “penalty” a “tax”. You could take a couple of minutes and read the dissent or a synopsis of it if you actually want to understand the difference.

[free me]

In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide forthe support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—evenwhen the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty. When an act
19 Cite as: 567 U. S. ____ (2012)
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
“adopt[s] the criteria of wrongdoing” and then imposes amonetary penalty as the “principal consequence on thosewho transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).
So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestion-ably is.

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

[free me]

correct

[philman_36]

I've read the dissent. It doesn't matter what the dissent says. The dissent isn't the decision.
Deal with the decision and how best to use it!

@ S13830 Congressional Record

Mr. BAUCUS. Mr. President, our committee and the HELP Committee have given a lot of thought to the provisions in this legislation. We also gave a lot of thought to the constitutionality of the provisions—how they work and the interrelationship between the power of Congress and the States and what States will be doing, particularly under the commerce clause and the tax-and-spending powers of the Constitution. It is very strongly our considered judgment, and that of many constitutional scholars who have looked at these provisions—and many articles have been put in the Record—that clearly these provisions are constitutional. The commerce clause is constitutional, the tax-and-spending clause, and the provisions clearly are constitutional.
I yield back my time.

S13832...

Mr. BAUCUS. Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers. This bill does not violate the 10th amendment because it is an appropriate exercise of powers delegated to the United States, and because our bill fundamentally gives States the choice to participate in the exchanges themselves or, if they do not choose to do so, to allow the Federal Government to set up the exchanges fully within the provisions as interpreted by the Supreme Court of the 10th amendment.
I urge my colleagues to vote against the point of order.

[free me]

The dissent points out what is wrong with the decision.

The dissent also shows that 9 justices did NOT agree that the mandate would be legal had they just called it a tax. Which is what you wrote.

If you mean to say “join with me in pointing out to all voters how the SC just ruled obamacare’s mandate is a whopping big tax, especially on those making $120,000 and less” then no problem, already there.

Want me to point out to all I meet that many dems in congress have been calling it a tax all along? You got it.

[philman_36]

BTW, you should've posted the buildup to what you cited... The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. 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 im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so. Your cite starts after that...
In answering that question we must, if “fairly possible,”...

It's not easy to convey everything said in such a short citation.

Maybe the Court should've read the debates from the Congressional Record instead of relying on lawyers to tell them what Congress meant.

[philman_36]

The dissent points out what is wrong with the decision.
I'm aware of that.
What effect does the dissent have?
Conversely, what effect does the decision have?

Get the point?!

[free me]

It’s clear by these comments that you have NOT read the dissent or are unfamiliar with citations,annotations etc. in the context of a judicial opinion.

As to your larger points (your next post) about what’s important I thought I addressed them and that we agreed.

If not then please be more clear or maybe just drop it.

[philman_36]

It’s clear by these comments that you have NOT read the dissent or are unfamiliar with citations,annotations etc. in the context of a judicial opinion.
It's clear by these comments that you wish to argue a case that is settled by arguing that the Dissent is the winning position instead of the Opinion.

[philman_36]

If not then please be more clear or maybe just drop it.
That particular Congress knew exactly what it was doing.
It set the mandate up as a tax. It intended the "penalty" to be a tax as well and the debate indicates such.

I didn't think it was that hard to grok.

[free me]

“It set the mandate up as a tax. It intended the “penalty” to be a tax as well and the debate indicates such.”
_____________________________________________________________

Oh. I agree with the dissent that they did no such thing. It doesn’t matter what they debated, it matters what the law they wrote says.

[philman_36]

The dissent also shows that 9 justices did NOT agree that the mandate would be legal had they just called it a tax.
Oh, you've got to show me that.

I see this...

4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.
(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287, 294. Pp. 33–35.
(b)Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.

Want me to point out to all I meet that many dems in congress have been calling it a tax all along? You got it.
Thank you. That's why I linked to the debates in Congressional Record.

Here...maybe this one won't shift on me...
http://congressionalrecord.us/2009/Senate/s13830.html

[BuckeyeTexan]

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

[philman_36]

Oh, one more thing...
Be sure to read footnote 5 in the dissent which is on the page preceding your snippet from reply 65 and is in my reply 66...
"But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.5 The two are mutually exclusive." 5 Of course it can be both for statutory purposes, since Congress can define “tax” and “penalty” in its enactments any way it wishes. That is why United States v. Sotelo, 436 U. S. 268 (1978), does not disprove our statement. That case held that a “penalty” for willful failure to pay one’s taxes was included among the “taxes” made non-dischargeable under the Bankruptcy Code. 436 U. S., at 273–275. Whether the “penalty” was a “tax” within the meaning of the Bankruptcy Code had absolutely no bearing on whether it escaped the constitutional limitations on penalties.

[skeama]

Not sure I was clear, but not exactly sure where you’re going with that, so you’re right, semantics.

My point is that the original A and B analogy is not an applicable Analogy because it’s not a proper structural parallel to ObamaCare. It WOULD be an applicable analogy if the author was saying “it’s perfectly fine for the gov to tax a man 7,500 for not buying a car at all”

Hey - let’s drop this one, I’m not sure you picked up what I was trying to say, and while I’m picking up what you’re putting down, I’m not sure how it applies to my post ... time for bed ...

[ZULU]

Thanks for those explanations. They make the situation a lot clearer.

[OneWingedShark]

It looks like the only limit on the power to tax rests with the people.

Invest in lead and copper, then.

[OneWingedShark]

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?

It's horrible; even moreso in that some are not "allowed" to own [hand-]guns at 18.
IOW, it's a clear case of age-based discrimination; instead of being based on age-of-minority/majority it's some random thing pulled out of law-maker's arses... and then people are supposed to respect the law?

[OneWingedShark]

Oh, LOL, thanks for the laugh.

[OneWingedShark]

“When we release the surly bonds of sanity, we don the shimmering wings of madness, and fly on wings of great power.”

LOL -- that's awesome.

Did you make it up, or is it from somewhere?