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The Spectacle Blog
Jed Babbin is right that the Supreme Court has contradicted itself. John Roberts has ruled that the penalty is not a tax under the Anti-Injunction Act, but IS a tax for constitutional purposes. (As a side note, even the lower courts or judges that semi-accepted the “tax” argument had it exactly the opposite: that it was a tax for AIA purposes but NOT for constitutional purposes. Then, not a single lawyer argued before the high court itself that it was a tax for constitutional purposes. Roberts basically made it up out of thin air.)
He has ruled that Congress can’t mandate that an individual must choose economic activity over inactivity — but then that Congress CAN tax the inactivity itself and give IRS powers (other than criminal prosecution, but presumably including wage garnishment, etcetera) to penalize the refusal to pay “taxes” on that inactivity. (Side note: Roberts said that this is okay because Congress has previously taxed people who were inactive. This is bunkum. Here, Congress is taxing the inactivity itself. This is unprecedented, and illogical. It means that any time Congress wants to force you to, yes, buy broccoli, it can impose a tax on your refusal to do so, and thus escape the limits on Commerce-Clause powers.) Even Roberts described this as “a tax on going without health insurance.” I challenge anybody to give a single other example of there being “a tax on going without…anything.” This blows aparts every notion of what a tax is. Governments tax things or actions; they do not tax that which is nonexistent.
He has ruled that an aphorism repeated in a private letter by Ben Franklin (“nothing is certain but death and taxes”) now carries constitutional weight (even though, of course, he would never rule that Thomas Jefferson’s letter to the Danbury Baptists about “a wall of separation between church and state” carried any constitutional weight).
He has conflated the authority to tax with the authority to exempt people from taxes via what he calls “tax incentives.” See here:
Congress’s use of the Taxing Clause to encourage buying something
is, by contrast, not new. Tax incentives already promote,
for example, purchasing homes and professional educations.
What sheer nonsense this is. Government taxes real property, and it taxes services. To decide to lessen the tax on home ownership and on the service known as professional education is completely different from deciding to tax the refusal to buy a home or to pursue professional education. Again, a tax break and a tax are not at all the same thing.
Finally, he has ruled that Congress can create a penalty and call it a penalty but have it considered for constitutional purposes as a tax — thus overriding congressional intent to engage in what the dissent rightly called “judicial tax-writing” — but that the court should nevertheless do back flips to defer to congressional intent overall (by not ruling a law unconstitutional) because “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” So we see this justice who otherwise insists on the “plain meaning” of the Constitution or statute now insisting that judges should impose an artificial meaning on it if it is remotely plausible, if doing so will allow a law to stand.
YET — this is rich — in dicta in the same decision, he basically ridiculed Justice Ginsburg for using the “fifth alternative definition” of one word “which was itself the second alternative definition” of another.
How many alternative definitions, pray tell, did he need to search before he concluded that what Congress called a penalty and that what acts like a penalty (in that it is only imposed on those who do not do what the goverment wants to dictate) is nevertheless a tax even though under other circumstances (the Anti-Injunction Act) it can’t be construed as a tax no matter what???
If this isn’t result-oriented jurisprudence — searching for a way, any way at all, to uphold a law and eep the court out of Obama’s campaign-related cross-hairs — then I don’t know what is.
Further note number one: If anybody truly believes that all four of the “liberal” justices really believe the tax argument, rather than just grabbing onto it because they saw Justice Roberts would thus give them a means of reaching the result they want, then that person is gullible beyond belief. Not one of the liberal justices seemed to take seriously the tax argument when it was raised (with regard to the AIA) in oral argument. The libs clearly are prostituting their interpretive approach in order to reach the political result they want.
Further note number two: Meanwhile, it should not go unnoticed that not just give conservatives, but seven of nine justices, including Obama’s own former solicitor general, ruled against the administration (and Pelosi and company) in finding that the Medicaid provision amounts to an unconstitutional coercion of the states. This, combined wth the majority in favor of limiting the reach of the Commerce Clause, effectively means that the left lost far more than it won in terms of lasting legal precedent, even though conservatives clearly lost far more than they won in terms of the now-legally-approved expansion of the state to a vast and frightening degree.
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More Blog Posts by Quin Hillyer
http://spectator.org/blog/2012/06/28/john-roberts-contortions-of-lo
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Bob Grant| 6.28.12 @ 2:54PM
In the future, please don't insult our intelligence by calling him a conservative. He had a chance to restrain a massive federal government overreach. He chose not to. Who would have thought this man would turn out to be a liberal ticking time bomb.
George W Bush, the gift that keeps giving.
Finzi Holst| 6.28.12 @ 3:12PM
Amen, Bob. Amen.
fmm| 6.28.12 @ 3:42PM
Now we can use the term postmodern for the chief justice in addition to the pres. If you have ever read anything about postmodernism, it is a mass of contradictions and anti-Americanism. Unbelievable that a supposedly educated man, who clerked for truly conservatives judges, could be this confused and evil.
BIGDUX| 6.28.12 @ 7:30PM
I suspect early onset Alzheimer's.
JmsA| 6.28.12 @ 3:01PM
Ann Coulter warned about such an outcome in reference to Roberts in 2005, as she referred to him as a "stealth" nominee, during his vetting by Alberto Gonzalez.
Beppo| 6.28.12 @ 3:13PM
This is spitting in the wind. There's no way in a million years this was a victory long or short term for conservatives. Mr Hillyer needs to quit parsing and face reality. Furthermore I'd hazard this thing is very unlikely ever to be overturned. It's effectively over.
Thom| 6.28.12 @ 3:16PM
Won't matter, in the "long run" if it is overturned. The Court made it "legal" to do (again, and again and again and.....).
Occam's Tool| 6.28.12 @ 4:12PM
For all those stating that Romney won't repeal, please note that he has stated unequivocally that repeal will be "day one, job one."
Might I remind people who don't believe this is possible that the POTUS, other than George Washington, with the greatest reputation for honesty and probity was Chester A. Arthur, who before he was POTUS was a Spoilsman.
No one has ever answered me on the question, does Mitt Romney say he is going to do one thing to get elected and turn around and do the other? I simply care if he follows through on his promises, once made.
Warrior| 6.28.12 @ 5:34PM
Just another example of how the checks and balances are broken. Romney can't repeal anything. He has to rely on getting majorities and then pushing dimwits like Boehner and McConnell into action. I'm willing to relocate today to any state that secedes from the union.
Thom| 6.28.12 @ 3:14PM
The Republic is dead ...
The Supreme Court has done three things to ensure this.
1) The government can now compel economic activity through tax policy. It can simulate the economy via command and control over individual behavior and (non)activates it "regulates" at will.
2) It has invalidated the last vestige of "state's rights" under the 9th and 10Th amendments. The Constitution and Bill of Rights are now moot.
3) The Court has invalided any purpose it has outside of rubber stamp for anything the Executive and Congressional branches do. This BF quote applies, "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote."
Long live the King .... in Hell.
AllAmericanAmerican| 6.29.12 @ 9:52AM
I concur Thom. I think the only chance (maybe) is if a State legislature passes a law preventing its citizens from being forced into commerce. However, it appears the Arizona ruling earlier this week would probably make that null and void, as the SCOTUS would just say essentially what it did in AZ: Anything the State does the Fed doesn't like is unlawful.
What's left to do but secede???
ncatty| 6.28.12 @ 3:21PM
The federal government has always had the authority to tax us out of existence. That has not changed. However, the coming battles, including repeal of Obamacare, will be over taxation, and they will be in the political, not judicial arenas. This is proper. May the best side win.
Oldefarte| 6.28.12 @ 3:29PM
I had a feeling that this excrement would be coming forth, since again when it comes to what's known as LAWYERS & JUDGES you're basicially calling corruption. As such and within their ABA organization, they are heavily invested [political contribution wise] into this POTUS and to the Democratic Party as well, so it should not be surprising to anyone with common sense that this decision has occurred. Again, the American public and voters were acting/voting ''''''STUPIDLY'''''' ON 11/4/08 when they allowed someone of his background to assume the highest/ most politically powerful office in the world. How many times can I say it......American were and are STUPID! Basically to my limited knowledge of legalese, it came down to 4 conservatives versus 4 liberals and the Chief Justice [whose supposed to be conservative and pro-business] sided with the liberals. Duh, shazam! WTF! Well again it's basically a bunch of AMBULANCE CHASERS in black robes. Now, it's been proclamated about the possibility of impeaching Kagan since she supposedly wrote the law as SG, then turns around as SCOTUS Justice an confirms her written law......is that CONFLICT OF INTEREST or what? Again, WTF....it would be of little use and a waste of time to attempt impeachment, since again the one/only solution for this is for the American citizens/voters to get their combined heads out of their anul cavaties and TO VOTE IN NOVEMBER FOR ROMNEY AND ALL REPUBLICANS TOTALLY! Case closed!!!!!!!!!!!!
Occam's Tool| 6.28.12 @ 3:41PM
Oldefarte: The reason that I am opposed to the Death Penalty except in the most egregious, well proven cases (think Charles Manson, for example) is not that I think it is wrong to put a murderer to death, but because I trust attorneys to screw up in almost all situations. I am amazed, over and over again, by Judges' ignorance of law.
Oldefarte| 6.28.12 @ 7:25PM
So true OT, so true! You do know [I'm sure] as to how you can tell when a lawyer [or judge] is LYING, don't you? Answer: WHEN HIS LIPS ARE MOVING!!!!!!!!!!!!!!
Oldefarte| 6.28.12 @ 7:32PM
PS [OT]: Speaking of the "death penalty", the initial attorney [good old boy, can't remember his name] defending the Oklahoma City bomber of the Murrah Federal Building proclaimed with a loud twangy voice, MY CLIENT, TIM MC VEY......IS INNOCENT OF THEM CHARGES!!!!!!!!!!
Occam's Tool| 6.28.12 @ 3:42PM
OF: you are correct about the straight GOP ticket this year.
Scott| 6.28.12 @ 4:40PM
Silly question, but I just don't remember: in which house of Congress did Obamacare originate? I ask because of the requirement that all bills for raising revenue (such as, say, a tax on not buying insurance) must originate in the House of Representatives.
DRed| 6.28.12 @ 5:34PM
"As president, Mitt will nominate judges in the mold of Chief Justice Roberts ..." - MittRomney.com.
haha. I'm really starting to warm up to Mittens. Even for an American politician he's just such a transparent fraud. It's kind of refreshing.
John Navratil| 6.28.12 @ 6:00PM
DRed,
I don't think he is a fraud. I think he is a businessman who would like to cap his career as President and thinks, correctly it would appear, that the conservatives will support him.
He does what he does from lack of deeply help conservative principles - he is a pragmatic man. Nothing he has done appears to have evil intent. I would not go so far as to suggest he would do evil to get the vote (unlike some). The same could be said for 'W', who was, perhaps, the most decent human being to be such a profound disappointment to Conservatives.
We could do worse, but we really need better. Even as a member of the "Not Romney" crowd, I would have to be drugged, bound and gagged not to vote for him.
LarryinTexas| 6.28.12 @ 7:18PM
This is not just a craven and cowardly decision written by Roberts. It spins phony rationalizations in the name of bending over backward to find this stupid and illegal law constitutional. This is not Constitutional jurisprudence. Anybody reminded of Quisling?