George Will is missing an important piece of logic in his analysis of Roberts decision.

vanity ^ | self

[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.

[commish]

One thing to be aware of here - This ruling just says that the Mandate is constitutional because it is a tax and Congress has the right to tax.

But, it did not rule whether this tax is in and of itself a constitutional tax. That cannot be determined until the tax is levied and someone then has standing to bring a suit challenging the constitutionality of the tax.

I know that is splitting hairs, putting lipstick on a pig, whatever you want to call it — but the bottom line is the legal challenges to Obamacare are not over and this tax can now be challenged as an unconstitutional tax.

[gleeaikin]

Regarding the tax implications of renting. If you don’t buy a home you do not get to deduct the mortgage interest you pay. Regarding health insurance, that is the point. The government doesn’t know and we pay for the medical care of those who don’t have insurance when they free-load our emergency rooms.

[Wayne07]

Mark Steyn destroys George Will in his article today:

"I have great respect for George Will, but his assertion that the Supreme Court decision is a "huge victory" that will "help revive a venerable tradition" of "viewing congressional actions with a skeptical constitutional squint" and lead to a "sharpening" of "many Americans' constitutional consciousness" is sufficiently delusional that one trusts mental health is not grounds for priority check-in at the death panel."

full article here: Mark Steyn: A lie makes Obamacare legal

[The_Media_never_lie]

They are not taxing inactivity, the people are breathing. If it breathes, tax it. This is the breath tax.

[Pontiac]

I predict free "sex change" surgery will be at the top of the priority list.

Well being male or female is a preexisting condition so naturally you can now get insurance and have that condition fixed.

[henkster]

I agree with your analysis, but would make one other point. The “rights” we now have against our Leviathan are pretty much procedural, and not substantive. The government can do anything it wants, so long as it pays heed to certain legal formalities on the way there. As a practical matter, it reduces our Constitution to mere window dressing.

[Lurking Libertarian]

BAM! Exactly. Except most people have never heard of a head tax, and have no idea they’re illegal.

Technically, they're legal, but only if apportioned.

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.

Roberts' opinion does discuss all of the case law (there isn't much of it) about what is a "direct tax," including Hylton v. United States (1796), and concludes that this isn't a "direct" tax.

[Lurking Libertarian]

One thing to be aware of here - This ruling just says that the Mandate is constitutional because it is a tax and Congress has the right to tax. But, it did not rule whether this tax is in and of itself a constitutional tax. That cannot be determined until the tax is levied and someone then has standing to bring a suit challenging the constitutionality of the tax. I know that is splitting hairs, putting lipstick on a pig, whatever you want to call it — but the bottom line is the legal challenges to Obamacare are not over and this tax can now be challenged as an unconstitutional tax.

Sadly, no.

The Court's opinion held that this wasn't a "tax" for purposes of the Anti-Injunction Act, so that challenges to it were now ripe, and then held that it was a "tax" for purposes of the Constitution, and found it a valid tax (explicitly rejecting the argument that it was an unapportioned direct tax).

[Tublecane]

“What is wrong with the legacy of Bush vs. Gore”

It put Bush the Younger in office, therefore libs don’t like it, therefore they pretend there was something legally wrong with it.

[Tublecane]

“Technically, they’re legal, but only if apportioned.”

Among the states, yes. But they won’t be, so they’re illegal.

“Roberts’ opinion does discuss all of the case law (there isn’t much of it) about what is a ‘direct tax,’ including Hylton v. United States (1796), and concludes that this isn’t a ‘direct’ tax.”

I was being glib, of course. I don’t mean to denigrate Roberts’ legal knowledge. It’s just that he and everyone else in the profession go by post-New Deal precedent instead of real law. So that if he has heard the term poll tax and does from time to time inquire as to whether something is one, that doen’t mean he doesn’t ignore what is and isn’t a poll tax in the interest of what expands federal power at the expense of everything but what lawyers have arbitrarily decided are worthy causes.

It is a head tax. Actually, it’s not a tax at all; Roberts merely unilaterally interpreted it that way. But if it is a tax it’s a head tax, and I don’t care what Roberts says.

[Tublecane]

“Roberts’ opinion does discuss all of the case law (there isn’t much of it) about what is a ‘direct tax,’ including Hylton v. United States (1796)”

I don’t see how that’d be very enlightening, as it was about taxes on carriages and ruled to be an excise tax. The mandadte penalty couldn’t possibly be an excise tax. Perhaps a better case would be the one in the 1890s case, I forget what it’s called, striking down the income tax, which necessitated the 16th amendment. But that was from the bad old Lochner days, and the judging industry—liberal and conservative—routinely regards those decisions as evil.

[Jim Noble]

Is it an excise, duty or impost? Is it a tax on income? Is it an apportioned direct tax?

It is none of these, and Congress has no power to levy it.