-
Will Congress’ Sloppy Work Survive Supreme Court Scrutiny?
May 3, 2013 | 28 comments
-
Maryland v. King
April 8, 2013 | 6 comments
-
A Wolf That Comes as a Wolf
October 8, 2012 | 48 comments
-
Reneau Almon’s Vindication
May 15, 2012 | 10 comments
-
Wickard v. Filburn: Time for It to Go!
March 14, 2012 | 39 comments
A Further Perspective
The Obamacare Decision and Its Electoral Consequences
How Congress will put its new taxing powers to good Democratic use.
How would you like our federal government to tell you to install new energy-efficient windows or make your next new car a Volt?
The Obamacare opinion gives Congress a roadmap to do precisely that. As most of us know, Chief Justice Roberts wrote an opinion that the four liberal Justices joined in which he held that the Obamacare mandate was a constitutional exercise of Congress’s tax powers. Not that the mandate, and its penalty for non-compliance, are taxes like other taxes within the meaning of the Anti-Injunction Act, which we would have to pay then sue to recover, mind you, but “taxes” of some other kind.
Chief Justice Roberts said that the penalty was a tax because it (1) wasn’t more than the cost of insurance, and, in many cases, would be less; (2) didn’t require an intent or state of mind; and (3) even though collected by the IRS, couldn’t be enforced by criminal prosecution or other means “suggestive of a punitive sanction.” This suggests that a $50 penalty, collectible by the IRS, for failing to install energy-efficient windows would find 5 votes for its constitutionality in the Supreme Court.
Significantly, it was Chief Justice Roberts who tossed that $50 figure out. What if the penalty were greater, say the cost of installing an energy-efficient window on each window in your house or structure? What about a penalty of the difference between the price of the electric car you didn’t buy and the price of the car you did? We don’t know.
Chief Justice Roberts tells us not to get too excited. The new power has limits, even though the Court hasn’t looked closely at “the regulatory motive or effect of revenue-raising measures” lately. Nonetheless, as he says, “We do not suggest that any exaction lacking a scienter requirement and enforced by the IRS is within the taxing power.” Whew! That’s sure a bullet dodged!
We’ll just have to wait for the next time Congress uses this power and a challenge winds its way to the Supreme Court to see how far Congress can go. All we know is that some “exaction[s] lacking a scienter requirement and enforced by the IRS” will be OK, and others won’t.
Now who, exactly, would take advantage of this new power? The Democrats who rammed the Obamacare bill through Congress weren’t thinking of this penalty as a tax (as the dissent notes, they called it a “penalty” 18 times), but they got a gift in the form of a new power. Folks like Sherrod Brown, Claire McCaskill, and John Tester voted for the bill the first time, and there’s little reason to doubt they’d do it again. Any question whether Elizabeth Warren or Tim Kaine would follow the playbook that Chief Justice Roberts gave them? And, that’s just the folks in some of the contested Senate races.
Not that the members of Congress who cooked up a new mandate wouldn’t be coy about it. They would have to be. Micro-management is hard. The Soviet economy showed that. When the Soviet Five-Year Plan called for the production of a specified number of nails, lots of small nails were produced; when the quota was stated in weight, larger heavier nails were produced. What mattered was meeting the quota, not the need for nails of all sizes.
So Congress won’t just say “buy” broccoli or an electric car or install energy-efficient windows. It will tell the Secretary of Health and Human Services to promulgate regulations to encourage the consumption of broccoli and permit the agency to enforce its regulations through a penalty paid to the IRS. For energy-efficient windows, Congress would go to the Department of Housing and Urban Development and for electric cars to the Department of Transportation. Then, the agencies will have to think about how to make us eat more broccoli, live in a house with energy-efficient windows, and drive electric cars.
No matter who does it, the new power to do something through tax penalties that cannot otherwise be done through regulation is nothing but a prescription for more bureaucratic intrusiveness. And, once again, it’s the congressional Democrats (those lovers of the federal administrative state) who empowered HHS Secretary Sebelius and her minions to write jillions of pages of new federal regulations in the Obamacare bill. Don’t be surprised if they do it again.
Here, Chief Justice Roberts reenters the picture, accompanied by William Kristol. Roberts observed, “It is not our job to protect the people from the consequences of their political judgments.” It’s up to us to make better political judgments. And, some time ago, Kristol noted, “An election is a terrible thing to waste.” Let’s not waste this one!
About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.
Letter to the Editor View all comments (48) | Leave a comment
More Articles by Jack Park
More Articles From A Further Perspective
http://spectator.org/archives/2012/07/30/the-obamacare-decision-and-its
Follow us:
ADVERTISEMENT
Current Issue
- Downton’s Class System — and Ours
- The End of the Castros?
- Nuts to Nutter
SPONSORED LINKS
FLASHBACK TO: 1995
-
Pope Culture
A man of faith in a godless age is hitting Americans where it hurts.
-
Why the GOP Does Not, Like, Totally Suck
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
-
Dames at Sea
-
In the Absence of Guns
In Britain, defending your property can get you life.
-
The Metaphysical Martini
-
Counting the Costs of Clintonism
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
-
Chuck McHagel
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
-
The Legacy of Old John and Mother Fresh-Roasted
-
It’s the Best Time of the Year
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
-
The Bush Crack-Up
Was the President done in by the economy, or by the politics of the economy?
Clip of the Day
ADVERTISEMENT
ElGordo| 7.30.12 @ 7:23AM
OBAMACARE IS A NEGATIVE FOR THOSE OVER 60, UNDER 30, and the WORKING MIDDLE-AGED.
.
If you're on Medicare or approaching 65, remember Obama has removed $ 500 Billion Dollars from Medicare to put into ObamaCare. To stop this you must vote for Romney who will repeal ObamaCare. For those over 75, ObamaCare means Death Panels and Euthenasia.
.
If you're under 30 and in reasonably good health, you'll only need low cost catastrophic health insurance but you'll be forced to pay into ObamaCare more than any private insurance company would charge, to subsidize those not in good health. At present the indication is that those under 30 will be required to pay a tax of 5% to7% of their income to ObamaCare. To stop this you must vote Obama out of office.
OBAMACARE IS A NEGATIVE FOR the WORKING MIDDLE-AGED.
.
If you're middle aged with your employer's health insurance , 85% of you are satisfied with your coverage, but you'll soon be forced into ObamaCare to pay a higher cost with inferior coverage for the dissatisfied 15%. To stop this you must vote for Romney and the Republican Senators who will repeal ObamaCare.
.
ObamaCare will mean the imposition of the highest tax in history.
Also fewer college graduates will go to medical school and we'll fewer doctors
Fast and Curious| 7.30.12 @ 8:51AM
Fewer American trained, English speaking doctors. More nurse practicioners, physician assistants. Much, much longer waits for elective surgeries like knee and hip replacements. In the US, most arthritic folks can get a new knee in a month or less. UK, Canada over a year. Higher death rates for all the major cancers. Nice, huh?
TLP| 7.30.12 @ 9:26AM
Actually, it's a TRILLION $'s.
$500 Billion for his Death Panel and Pain Pill Spa, of a Health Care System, and another $500 Billion for the failure to reach a deal to avoid a Downgrade of our Credit Rating.
I realize that this MFer has Cloward and Pivened us, in to a Stupor, but we have to remain VIGILANTE to the things that he has put in place.
To the things, that he has done.
The Prince of Lies is a Master of the Slight of hand.
If we are to ever stop him?
Attention must be paid.
Purp| 7.30.12 @ 8:43AM
Obamacare is a positive move to restrain the growth in cost of healthcare and removes the worst insurance denials of insurance.
The 500 Billion for Medicare simply removed the subsidies to Corporations to subsidized Medicare Advantage - which was Republicans way to start privatizing Medicare toward Vouchers instead of guaranteed coverage.
Anyone in good health can get hit with a chronic disease, not catastrophic, or any accident can happen to anyone. Insurance is just that - it insures you against the possible or even probable.
Why do employers give you health insurance? Not because of cost or their good heart. It's to keep you as an employee. Obamacare will not change that.
Obamacare imposes the mandate tax ONLY on those without insurance and is only 4 billion/year on 3-4 million people that won't get insurance. It will help stop us all from paying for the freeloaders that get free healthcare but don't pay for it.
Doctors will adjust, and those that are in medicine to help people will continue. Those interested in making big bucks will serve the rich, like they do today.
Romney will destroy our economy, siphon off trillions to the Cayman Islands, keep everything secret like his tax returns, go to WAR with IRAN using the same reasons Bush used - and they will be a lie too. Who likes RomBot anyway? He's the same Prep Boy Bully he always was.
TLP| 7.30.12 @ 9:42AM
Please. Ignore this Pitiful Creature. Don't try to engage in Dialogue with him, because it isn't possible. Dialogue is not within the reach of one, such as he.
He is not interested in Facts.
He is not interested in The Truth.
He is a Minion of the Unholy One, sent to Distract, and Confuse, and to bring about Anger within us.
He is an Agent of The Dark Side, and a Dumb MFer ta boot.
IGNORE HIM.
Especially you, O.F. before you have a Heart Attack.
Purp| 7.30.12 @ 10:17AM
Oh, Sunshine, YOU are the only one with the TRUTH? Yeah, right, you couldn't possibly, possible be incorrect in anything you EVER say? I am the Devil now? Do you win arguments with yourself, or do you just spin in circles?
And you call me pitiful... HA!
Gary B| 7.30.12 @ 10:19AM
"Oh, Sunshine, YOU are the only one with the TRUTH? Yeah, right, you couldn't possibly, possible be incorrect in anything you EVER say? I am the Devil now?"
Yup... pretty much.
Von Mises Jr| 7.30.12 @ 11:46AM
I read all about Perp on my vacation in "The Origins of Totalitarianism." He is the "atomized" non-person whom spouts illogic like someone with turrets syndrome. He is a true believer in a "movement" based on "Utopian" Dreams. He is isolated and lonely as evidenced by his pathetic need to vomit garbage to shut down intelligent dialog.
The people of Virginia and the Carolinas are not like this urban boot licker. They love their Bibles, guns and have every right to not like horses a$$e$ such as people like Perp whom is like a leech sucking off the blood of good Americans.
I totally agree. Ignore the parasite.
KennesawJack| 7.30.12 @ 12:53PM
Schiller was referring to Purp when he said, "In the presence of stupidity, the very Gods themselves cannot contend." Ignore his silly ass.
Gary B| 7.30.12 @ 10:17AM
"Doctors will adjust." Exactly. Many of them are adjusting themselves into early retirement just to get away from this bureaucratic pile of crap.
Also, I thought trial lawyers were a major factor in rising costs.
If Romney wanted to destroy our economy, he'd let Obama win, like McCain did.
Purp| 7.30.12 @ 10:37AM
Seriously, have you heard Romney's positions on Iran? We heard "Iraq and the mushroom cloud" and we all know what bull that was. Now we're hearing Iran and War again. Romney is GW Bush on Steroids - economically dumb and militarily adventurous.
I'll stay with Obama, drones and clandestine attacks that are more successful, cost-effective, and use our technological superiority and not our people's lives.
We don't need a full scale invasions, or the hammer, when a surgical incision will do.
Trinacria| 7.30.12 @ 5:45PM
Funny thing about technical superiority - it has a short shelf life. When the country becomes economically crippled and investment in the US technology sector becomes less and less attractive, our technical superiority will share the same tragic fate as our economic superiority.
By the way, I trust you haven't failed to recognize the remarkable irony in the fact that the single argument you cite in support of a second Obama term is based on a military strategy that was pioneered by the Bush administration (and, interestingly, initially decried by the Obama administration).
George S| 7.30.12 @ 11:52AM
Trial lawyers? C'mon, next thing you will be telling us is that Medicare short-changing doctors and hospitals is also a major factor.
The real reason medical care costs so much is the profiteering of the insurance companies. But what is puzzling is why the premiums of non-profit insurers cost almost the same as for profit companies. I am not daunted, for I know the Great Oracle of Hyde Park will give me the answer to this riddle through his earthly medium Purp the Confused.
Boar Hunter| 7.30.12 @ 11:10AM
Mornin pervert!
Yap Yap Yap
Marie| 7.30.12 @ 1:50PM
All they had to do was pass a law that prevented insurance companies to stop dropping people from policies that had been paying premiums and rescind the law that does not require people to pay for emergency care. Obamacare WAS NOT about healthcare, it's about control of you and me. There is still going to be freeloaders. Wait and see. By the way, Romney has released tax returns. Why do you think the media knows everything about his finances? Do you think they are just guessing?
Trinacria| 7.30.12 @ 5:30PM
"Obamacare is a positive move to restrain the growth in cost of healthcare..."
With all due respect, Mr. Purp, perhaps you'd be kind enough to cite a single example in the history of the United States when government intervention into a market resulted in cost reduction. Indeed, rarely is the historical record so strikingly unambiguous as it is in the case of government intervention and it's effect on cost and efficiency.
Furthermore, your argument largely refutes itself, as you claim that Obamacare will have the dual effect of restraining the growth in healthcare costs and decreasing the ability of insurance companies to issue denials. If the pool of covered individuals and the spectrum of covered products and services is increased substantially, and insurers no longer have the ability to control costs by imposing restrictions on pre-existing conditions or denying coverage for goods and services that are medically unnecessary, there would seem to be little in the way of rational argument to support the notion that costs will thereby decline.
Otis, my man!| 7.30.12 @ 9:14AM
Why would this taxing power be limited to use by Democrats? What makes you think the Republicans won't use the power when they have it too?
The ruling class is the ruling class, no matter which party it is.
Purp| 7.30.12 @ 10:17AM
You are absolutely correct!
Gary B| 7.30.12 @ 10:23AM
Purp, I actually agree with you. The Republicans lead from behind by letting the Democrats propose all the bad, ruling class stuff. They are far more deceitful than they are stupid.
Al Adab| 7.30.12 @ 11:50AM
That is exactly why this government was established as a limited one dedicated only to protecting the rights of citizens not redistributin wealth, taxing income, or providing pysical wants to groups and classes. Unless we rebuke the legiitimacy of the social-welfare state there is no liberty.
Gary B| 7.30.12 @ 12:28PM
Other people's money taken at the point of a gun and pissed down the bureaucratic, crony-ridden rat hole.
Gary B| 7.30.12 @ 10:25AM
And, as Jack Abramoff said in a recent article, it'll all happen through lobbyists. He said Roberts' decision was a world class gift to lobbyists. And, as Gary North said, the decision legalized economic fascism.
C. Vernon Crisler | 7.30.12 @ 10:29AM
Please, we don't need any more discussions of that idiot Roberts unless it's accompanied by something about Congress impeaching this judicial monster.
Von Mises Jr| 7.30.12 @ 11:52AM
While I agree it is fruitless to replay the bastardized decision over and over looking for clues to the travesty, but I think that this must be discussed thoroughly in places such as TAS.
Our MSM and the regime create bull$hit stories to talk about anything BUT the weekly authoritative and totalitarian diktats of this regime. And have you heard objections from the Republican Establishment? I'm hearing crickets.
Gary B| 7.30.12 @ 12:22PM
I say again, the liberals here keep assuming the rest of us are true blue Republicans. True blue Tea Partiers, perhaps. As far as I'm concerned the GOP is enabling the New World Order.
Al Adab| 7.30.12 @ 12:56PM
Gary:
The GOP has been a disappointment to The Conservative Movement since the movement began. Rockefeller, G. Romney, Ford, Dole etc. all opposed The Movement but remained good republicans. The Left conflates the two though they are not synonomous.
Gary B| 7.30.12 @ 1:11PM
The primaries are house-cleaning time. We have one tomorrow here in Texas. As the Tea Party gains momentum, I hope we'll see a lot of that.
Von Mises Jr| 7.30.12 @ 3:02PM
Gary B,
The struggle may very well come down to a civil rapture. Be glad you are in Texas.
I am in the liberal northeast where government officials make no bones about their socialism when they figure that they cannot be held to the record.
I just visited my friend in South Carolina, and if I could sell my house in this Freddie Mac socialist induced subprime mortgage crash, I may be there with you in a state with conservative government and neighbors.
Ken (Old Texican)| 7.30.12 @ 5:02PM
4:53PM
SORRY FOLKS.
We each have to begin planning our lives as if Obama and crew actually win in November...by hook...or crook...or idiots in the mid-west.
I'm serious now. If the "takers" out vote the "makers" in November, what are YOU going to do? Don't say it here for goodness sake! Just begin covering your butts. Buy some beans and ammo to protect them.
I'm not worried writing this. I'm already on ALL their lists (thank goodness for the Texas Rangers watching my back..)
So...if the "takers" win the election? I am pretty sure Texas will "unofficialy" SECEDE, ALONG WITH MANY OTHER SOLVENT STATES.
(That coud be trcikey for the citizen)
So
buy lots of beans... a very small stove and LOTS of gas.
God bess you all
Ken
KennesawJack| 7.30.12 @ 6:14PM
Ken, like I told you months ago, if Obamarx wins this thing, this Georgian is coming to Texas. Make sure you save me room.
Von Mises Jr| 7.30.12 @ 6:45PM
If Obama is re-elected, we are in for a depression if not a total financial collapse. The nation cannot endure four more years of low GDP growth, rising inflation and deficits of 10% of GDP year after year. But in a depression or a financial collapse, it does not mean that everyone does horribly. Past wealth will be depleted either slowly or in an instant. But if you are capable of fending for yourself and have some property, you will be way better off than the dumb a$$e$ that depended on the government. And when the system resets, those with ability and skills will do much better. The older guys like us will lose wealth, but our kids will just restart anew.
The real dangers are the loss of our Constitution and Rule of Law, and totalitarians that may seek to purge wise old men such as you and me. But I would rather fight back and possibly lose than surrender and surely lose my liberty. If there is a G-d, I want to face him having displayed courage.
If Romney wins, it is going to be a decade of austerity to get the nation back to sound finances. The poor can be spared much pain, but the irony is that if the nation at large votes for socialism, they will doom the truly poor and downtrodden.
If Romney wins and fails to show the courage to deal with the problem, the pain will simply be delayed a bit.
KennesawJack| 7.30.12 @ 7:27PM
Von, only a fool screws around with an old man. We'll acquit ourselves well.
SSG Baker| 7.31.12 @ 10:47AM
Better to die a freeman than live a slave.
Conservative Bob| 7.30.12 @ 11:57AM
Obamacare is a nightmare but pales when compared to the new power Roberts found for the statists.
Those intent on ruling us will not take long adapting their plans to his newly provided tools.
The only remotely positive aspect of his decision is that it removes forever the idea that SCOTUS will protect our liberty.
Our founders never intended that 9 cloistered "Wise Men" (Or women) would be the arbiters of our individual liberty. That is and was supposed to be our job.
KennesawJack| 7.30.12 @ 3:54PM
Roberts is fortunate to be a young man. He has time to recognize the harm his choosing to write a statute has caused and dedicate himself to correcting that wrong. I am a grown (old) man and I can honestly say I believe this was the single most harmful decision since Plessy v. Ferguson to come from the Supreme Court. Roberts has opened the door for untold strain on our system until a way is found to correct this.
Conservative Bob| 7.30.12 @ 5:35PM
Kjack his age can work another way as well. He can spend the rest of his life attempting to validate and underscore his 'wisdom' in this decision.
Roberts took away my citizenship and made my children, grandchildren and me subjects. Subject to the whims of elected officials and their minions.
I hope Roberts lives a long time and everytime he looks in the mirror he is hunted by the millions not yet born that he has betrayed.
I think we should develop and market John Roberts toilet seats and that through the new power he has given to the statists they are required to be installed in every bathroom in the country so he can kiss the ass of every american when the pause to take a take a Roberts.
KennesawJack| 7.30.12 @ 6:16PM
Not going to tell you where it is, but I know of a VFW where every urinal has a picture of Hanoi Jane in it. I know it's crass, but I can tell you as a Viet Nam vet, it just makes you want to have another beer or two.
George S| 7.30.12 @ 12:09PM
While you may be concerned about the federal government, and rightly so, I am more worried about state and local governments who are more desperate for revenue since they cannot print their own money. This ruling now gives the green light to cash-hungry states such as California, Illinois, and New York to come up with inventive taxes for not doing all sorts of things... such as a tax for not getting a medical/tracking chip implanted.
Gary B| 7.30.12 @ 12:26PM
George: Luckily, citizens of these states can vote with their feet, like I did. As they spiral down the bankruptcy drain, other states won't be so keen to follow. I actually think the states are well positioned to lead us out of this mess - some states anyway.
Marie| 7.30.12 @ 1:44PM
You aren't going to buy a Chevy Volt? Buzzzzzzz. $100 penalty, payable to the federal government. You aren't going to install cancer causing "efficient" light bulbs? Buzzzzz. $25 penalty, payable to the federal government. Gosh, we should be out of debt in NO time.
fmm| 7.30.12 @ 2:10PM
I am waiting for congress to impose a tax on the SCOTUS for not providing a judgment favorable to whatever congress wants at that time. So much for separation of powers.
Ken (Old Texican)| 7.30.12 @ 4:53PM
SORRY FOLKS.
We each have to begin planning our lives as if Obama and crew actually win in November...by hook...or crook...or idiots in the mid-west.
I'm serious now. If the "takers" out vote the "makers" in November, what are YOU going to do? Don't say it here for goodness sake! Just begin covering your butts. Buy some beans and ammo to protect them.
I'm not worried writing this. I'm already on ALL their lists (thank goodness for the Texas Rangers watching my back..)
So...if the "takers" win the election? I am pretty sure Texas will "unofficialy" SECEDE, ALONG WITH MANY OTHER SOLVENT STATES.
(That coud be trcikey for the citizen)
So
buy lots of beans... a very small stove and LOTS of gas.
God bess you all
Ken
TLP| 7.30.12 @ 5:29PM
Why does that sound so familiar?
Just kidding, Ken.
I welcome you to the my World.
The World of The Preppers.
Gary B| 7.30.12 @ 7:17PM
As good as Texas is, I understand Oklahoma is the only state where not one county went for Obama in '08. Clean sweep for anti-Obama sentiment. We should all emulate everything OK is doing regarding its relationship with DC.
Ken (Old Texican)| 7.30.12 @ 10:09PM
Gary,
Oklahoma is a fine place to live. They are just not strong enough to"push off" the feds.
Texas is.
America lovers are moving here in droves...and they are tired of running. (voting with their feet).
I thank goodness for our Governor. He is precisely where we need him.
He discovered that our Texas values are no longer held across the country in his short campaign for the presidency. That's OK. He has become the anchor-post for Texas. See my next post:
Ken (Old Texican)| 7.30.12 @ 10:15PM
Rick Perry: http://www.youtube.com/watch?v=dbWz1RYGE3Q
SSG Baker| 7.31.12 @ 11:07AM
I was born an American, I have lived as an American, God willing I will die as an American. Never will I bow down to any man, I am freeborn and am the peer of any man or woman in this Country. Ken, you may be willing to hide in Texas if the worst happens, I refuse to see the Country my forefather's blood bought all the way back to the War for Independence through 235 years to the present destroyed without a fight. We allowed this to happen. We compromised with evil men, with political theories, with social liberalism at the cost of our moral, economic, religious, and political souls. We have to make a stand and say no more, the stand is made here.
Timely Renewed | 8.1.12 @ 8:47AM
We can no longer count on the Supreme Court to defend the Constitution. Even if Obamacare is repealed, that will still leave in place 75 years of Supreme Court decisions which have allowed the federal government to expand far beyond its original constitutional limits. We must now resort to the ultimate power the Framers left us - amendment. Only constitutional amendments restating and re-affirming those original limits will save our Republic. Of course, Congress will never initiate such amendments. Therefore, we must first reform the amendment process to enable the states to initiate and enact amendments without having to go through either Congress or the unworkable and dangerous mechanism of a convention. See http://www.timelyrenewed.com