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.
