The Spectacle Blog

John Roberts’ Contortions of Logic

By on 6.28.12 | 2:16PM

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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