Roberts' Dodge At Heart of Obamacare Decision

Townhall.com ^ | July 3, 2012 | Byron York

[Kaslin]

No one knew it at the time, but the key moment in the Supreme Court Obamacare case came on March 26, the first day of oral arguments, when few people were paying close attention.

Before getting to the heart of the case, the justices first wanted to deal with what seemed to be a side issue: Was the penalty imposed by the individual mandate in Obamacare a tax? If it was, the case would run afoul of a 19th-century law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it. Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then.

No one had challenged Obamacare on that basis; the challengers wanted the case to go forward now. The White House, having argued strenuously during the Obamacare debate that the penalty wasn't a tax, wanted to go ahead as well. So the court, on its own, tapped a Washington attorney to make the argument that the penalty was a tax and therefore the case should not go ahead.

"The Anti-Injunction Act imposes a 'pay first, litigate later' rule that is central to federal tax assessment and collection," said the lawyer, Robert A. Long, on that first day of oral arguments. "The act applies to essentially every tax penalty in the Internal Revenue Code. There is no reason to think that Congress made a special exception for the penalty imposed by (Obamacare)."

After Long made his case, it fell to the administration's lawyer, Solicitor General Donald Verrilli, to argue that no, the mandate was not a tax, and therefore the case was not subject to the Anti-Injunction Act.

At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution's Commerce Clause, he had as a backup the argument that it was also justified by Congress' power to levy taxes -- in other words, that it was a tax.

Justice Samuel Alito saw the conflict right away.

"General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"

"No," answered Verrilli.

At the time, some observers found the whole thing a little boring; the real action would come the next day, when the court got to the question of whether the Commerce Clause could be stretched to include the individual mandate.

But a lot of those same observers were shocked on June 28, when Chief Justice John Roberts, rejecting the Commerce Clause argument, agreed with Verrilli that the mandate simultaneously was and was not a tax, and that therefore Obamacare would stand. Roberts joined the court's four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, who seemed prepared to uphold Obamacare under any circumstances.

Roberts' sleight of hand drove his conservative colleagues nuts. "The government and those who support its position on this point make the remarkable argument that (the mandate) is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes," wrote dissenters Alito, Antonin Scalia, Anthony Kennedy and Clarence Thomas. "That carries verbal wizardry too far, deep into the forbidden land of the sophists."

After the ruling, Obamacare opponents pointed out the thousands of times the president and Democratic lawmakers had contended that the mandate penalty was not -- repeat, not -- a tax. But it no longer mattered. "Call it what you will," said former House Speaker Nancy Pelosi.

Outside the court, the conservatives who thought they knew Roberts seemed baffled. "For whatever reason, and you'll have to ask Justice Roberts, he rewrote the statute," said Mike Carvin, who argued against Obamacare in the case. "I'm glad he rewrote the statute rather than the Constitution, but none of it can pass rational scrutiny."

Maybe rational scrutiny isn't what is called for. If a person wants to do something badly enough, he'll come up with a reason for doing it. John Roberts, apparently, wanted to uphold Obamacare, even if it meant venturing deep into the forbidden land of the sophists.

[Dr. Sivana]

Roberts Dodge is at the Heart of the decision?

I always knew Roberts Dodge to be a car dealership in Meriden, CT!

[tsowellfan]

Well, he needed to pay back Roberts for Obama’s executive order that any child brought to the United States illegally would be granted Amnesty.

[tsowellfan]

Correction: he needed to pay back Obama

[NTHockey]

Whatever the reason or reasons for his decision, Roberts stands accused of swearing a false oath. For penalties, look it up in medieval justice. Roberts also stands accused of treason for not upholding the Constitution. The penalty is impeachment.

Is there not one sheriff with the courage to arrest Roberts? Is there not member in the House with courage enough to proceed? Who among us will pay the tax with a whimper? I took retirement rather than have to obey.

Consider this carefully: “And he shall make all, both little and great, rich and poor, freemen and bondmen, to have a character in their right hand or on their foreheads: And that no man might buy or sell, but he that hath the character, or the name of the beast, or the number of his name.” Revelation 13:16-17 (Douay-Rheims)

[Vision]

Roberts caved into political/social pressure.

He’s just not much of a man.

[Alberta's Child]

If it was, the case would run afoul of a 19th-century law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it. Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then.

This is why the court's finding that the court's finding that ObamaCare was a violation of the Commerce Clause was so important. What the Supreme Court basically decided (through a combination of its opinions, though there wasn't majority to determine this) was that ObamaCare will be exposed to additional challenges on many, many different grounds as more of its provisions are implemented.

I'd even go so far as to suggest that the legal challenge to ObamaCare was premature on the grounds that were brought before the court. The problem with challenging the individual mandate is that there isn't a single person in the U.S. who currently has the legal standing to challenge it -- yet.

I think the dissenters in the ObamaCare case wrote an excellent opinion -- but not necessarily for this case. If 2014 rolls around and ObamaCare is still in force as written, they should simply change the docket number whenever it is challenged on different legal grounds and file the exact same opinion again. Next time, though, it's likely that it will be the majority opinion.

[The_Media_never_lie]

The Obama administration had pictures of Roberts with the goat.

[LRS]

Ever since Roberts announced his decision, I’ve been calling it a “pooch punt”; that lame, insipid “quick kick” play of pro-football that rarely accomplishes anything other than make you look lame, and insipid...

[New Jersey Realist]

The right thing for Roberts to do is reconsider his decision, reconvene the court then toss out the bill.

[originalbuckeye]

Has the SCOTUS EVER changed a Law to fit the Constitution? Does it actually have hat power? How can it not be required to send it back for a re-vote when it would NEVER have passed at all if the word ‘tax’ had been used? This smells worse than BO.

[originalbuckeye]

*that*

[uncbob]

of a 19th-century law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it. Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then.

This has to be changed

Because it means you can set up the apparatus for collecting the tax with all the bureaucratic manpower and $$$$ involved creating new agencies publishing countless documents etc etc before it can be challenged in court as if a judge will rule that all the in place logistics has to be dismantled

[uncbob]

The main problem is that there is no decision as to what it is

Can suits be brought against as a tax just because one justice says it is

Or will Obama just say “ It was deemed constitutional period “ and I say it is a mandate

[yldstrk]

He must have wanted peopole to like him, which should not be a concern

[cb]

Me, I think its a Rino plot to give the senate to the republicans. They'll do anything to have this campaign issue even subvert a supreme court justice and trash the constituion.

The Sad thing is that they don't really want to do anything with it but appease the dims and the Washington establishment!