Posted on 06/29/2012 11:03:16 AM PDT by rrdog
I should first add that it is just not George Will making this mistake, and that others have pointed out the legal inconsistency.
Justice Roberts is asserting that Congress has the authority to tax, and of course this is true. Roberts and the left side of the court point out the congress passes taxes all the time on your phone bill, driving a car, etc. But this is not a tax on any activity, it is a tax on a lack of activity. A precise lack of activity to be sure, but a lack of activity.
The ramifications for this are very clear. If Congress can pass a law taxing you on lack of activity we have for the first time legalized a direct capital tax.
Roberts and the rest seem to have missed the obvious fact that if Congress can tax capital (just by taxing inactivity) then Congress can simply confiscate the wealth of the nation. All other taxes before Justice Roberts' decision were taxed on some specific commercial activity.
By any logical, rational thought process a tax on "inactivity" or failure to act can only be a tax on capital.
The Roberts ruling is much more profound than most seem to realize. It reaches far beyond health care, the commerce clause and government expansion and if allowed to sit fundamentally changes 200 years of tax law and precedence.
While many on the right are arguing that Roberts is just keeping the powers separate and that this is in effect a victory for conservatives this analysis is not only entirely wrong, it misses the bigger picture.
There is no escape from the logical trap. If Congress can tax inactivity, congress can confiscate all the wealth from every individual.
Roberts may have been well intended and George Will may be just as well intended but both men show a stunning lack of understanding of Constitutional law. Troublesome for Will, terrifying in the case of Roberts. The reason we limit taxation to active commerce and income is because that is the only way to stop congress from simply confiscation your wealth. Where there is no activity or income, there can be no tax.
Roberts has turned this beautiful logic on its head and suggested that if Congress would like more money, they can simply level a tax on something they know people will not purchase and confiscate wealth.
The Health care act is the perfect vehicle for doing this. Congress can simply amend the act to raise the penalty (now considered a tax). If you make fifty thousand dollars per year the president can regulate insurance to the point that it costs $100,000 then place an "inactivity tax" for not purchasing the insurance of $50,000, which would wipe you out.
This is yet another example of pundits on the right and the left blathering on mindlessly about details, opinion and winners and losers all the while missing the obvious logic of the decision.
Any way you slice it the Roberts court has granted the power to congress to confiscate wealth without limit.
So I’d be taxed on doing nothing? Will that be a line item on tax forms? Like, how many hours did you spend doing nothing last year? Insert amount on line “X” and pay $***
Why can’t they just admit that Roberts screwed up, and leave it at that?
This is a very important point. What Roberts has done, in effect, is invalidate the 5th Amendment “takings” clause. There is no way you can square the logic of this opinion with the 5th Amendment.
And the practical effect is that for years the socialists have been drooling over that pot of money out there in all our private retirement savings plans. All our 401(k), SEP, IRA’s, all of it. They have been wanting it so badly they can taste it. The only thing, from a Constitutional standpoint, that kept their grubby hands off it was the Takings Clause of the 5th Amendment.
Now, that is gone. It’s not a “taking” if they just call it a “tax.”
Outstanding analysis. This must be the first time in U.S. history where someone can be taxed for NOT doing something. Up until now, you can only be taxed for receiving income (earned or unearned), owning property or purchasing something, i.e. gasoline etc.
But now, we can be taxed for NOT purchasing something? Beam me up Mr. Speaker.
Roberts’ ridiculous contortions to justify the mandate are very much out-of-character.
I am suspicious there are other, unspoken reasons for his decision.
The consequences of this screw up will propagate endlessly in to the future.
The consequences of this may exceed Roe V Wade because the Dems will make sure abortion is in every “Health Plan” because we all know that women’s health depends on being able to get an abortion on demand for free.
All of health care will be rationed by the state but abortion will not because women’s health depends on it and it is a woman’s right to choose (even if she can’t pay for it so everyone else has to).
How many hours did you spend not campaigning or voting for Obama? If less than 1, then please pay 1,000.00 to the IRS. If more than 1, then please pay 1,000.00 dollars to the Obama campaign or if you should choose not to, please pay 1,000.00 to the IRS.
This MESS brought to you by Johnny Roberts, judicial mind extroidinaire and toast of all the cocktail parties that he is now invited to.
That's right.
They are now free to swipe it all (just like the government did in Argentina).
My question: Isn't social security only assessed against workers? If you have a stay-at-home spouse, that person does NOT pay social security, right? But that person will still be mandated to have health care coverage?
If that analogy is correct, then how are they similar? It's more like auto insurance. Only drivers have to pay auto insurance, not everyone. Social security is only paid by workers, not everyone.
But everyone must buy health insurance or the IRS will throw them in prison. It's not a tax, it's a coercive contract.
As you said, a tax is usually an assessment on an activity. If I earn an income, it is taxed. If I purchase a product, it is taxed.
People are calling this ruling a tax on behavior, but even a behavior has to be performed.
How can I be taxed for something that I do NOT do?
What it is is slavery. I no longer own the fruits of my labor. I can be compelled to do something that somebody else demands, or my property will be confiscated and I will be punished until I comply.
-PJ
I predict free "sex change" surgery will be at the top of the priority list.
Listening to various pundits, one, who said he knows Roberts said Roberts and his wife are very committed Catholics. So I guess the prospect of millions of people without insurance, especially if they are already ill might have influenced his choice. Also, the idea of people free-loading by getting mandated care at emergency rooms and the rest of us being forced to pay for this might have been an influence. Another pundit last week said that Roberts would not want to have the legacy like Renquist who voted in support of Bush vs. Gore.
Regarding not doing anything. I was looking at other sites to see the arguments raised. One person who identified as a conservative Republican pointed out that choosing to not do something means you choose to do something else. Rent, don’t buy, you choose to pay higher taxes, The example I gave above of forcing others to pay your medical bills if you need an emergency room visit. Not getting married, never having the joy/heartbreak of your own children, etc.
What is wrong with the legacy of Bush vs. Gore???
If one doesn't want to make controversial decisions, one shouldn't join the SCOTUS.
You’ll have to ask him or the pundit, I am just reporting someone else’s speculations. Also, I don’t know the name of the pundit.
"Very committed Catholics" believe in free will, NOT Socialism.
“If Congress can pass a law taxing you on lack of activity we have for the first time legalized a direct capital tax.”
BAM! Exactly. Except most people have never heard of a head tax, and have no idea they’re illegal. Roberts probably doesn’t even know the difference between unconstitutional direct taxes and ever other kind of tax. That’s because he and other judges live in the world of precedent and the post-New Deal Constitution, and have never bothered to read for its own sake the actual Constitution.
They’ve no doubt never heard of the idea of taxes only being justified if they’re raised to carry out enumerated powers. I’m not sure they’ve heard of enumerated powers. What they probably do know is that they’ve made Congressional power limitless. And that’s okay, because Congress is a “political” branch and elections decide what happens there. Because we’re an absolutist centralized democracy, don’t you know, and federalism, checks and balances, etc. are retrogressive notions that only hold women, children, and minorities back.
“Now, that is gone. It’s not a ‘taking’ if they just call it a ‘tax.’”
We were already basically left unprotected from takings by Penn Central Transportation Co. v New York. This—calling takings a “tax”—is just another angle from which to hit it. The federal government’s nearly unlimited powers are implied by a great many SCOTUS decisions, most of those coming after the infamous “switch in time that saved nine.” It just takes a while for it to be made explicit.
Sometimes there’s a surprise, as when Roberts, Scalia, Alito, Thomas, and Kennedy declined to stretch Wickard a bnit further by denying the commerce clause’s application to “regulating” non-activity. But it more than made up for that by stretching out Helvering to cover mandates backed by penalties which are to be considered “taxes.”
At least the court still arbitrarily protects those portions of the Bill of Rights it favors and certain other unspecified “rights” which may or may not actually exist. So Leviathan is not omnipotent. Only almost.
“Yesterday, I was hearing that the tax is justified as similar to Social Security.”
It is, yes, and by extension SS and Obamacare both are justified as spending programs via the taxes. The idea being that if you’ve already raised the taxes you can spend them on whatever, I guess. See the infamous Helvering decision.
One problem among many is that SS taxes income, whereas the mandate penalty taxes...nothing, aside from the person as a person. It is a direct tax and direct taxes are illegal.
“One person who identified as a conservative Republican pointed out that choosing to not do something means you choose to do something else”
So how does government know to asses the tax on your non-acting action? They tax income when it comes in to you. They tax imports when they are imported. How do they know when you acted in deciding not to buy insurance? It’s impossible, unless they constantly track and can read your thoughts.
Looks like we’ll need more funding for the Thought Police.
Excellent, excellent points. You both summed it up nicely.
It’s like saying: Everyone needs a house to live in. If you decide not to buy one, the gov’t will “tax” you and assign you to a house.
Or: Everyone should drive a hybrid car. If you refuse to buy one, the gov’t will “tax” you and give you one.
Or: Everyone should have solar/wind power. If you refuse to install it, the gov’t will “tax” you for it and have it installed.
Ok, those examples above sound ridiculous, but then again, we live in ridiculous times...
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