Obamacare and the Supreme Court

[calicoug]

I pray for your soul...

Honestly- spell it out.

[Indy Coug]

I dare anyone to show me the economic difference between this and the mortgage deduction.

Why don't you spell out why they are the same?

[Jacob]

Not sure what you mean by "saw it coming." I guessed it would be 6-3 to uphold with Roberts and Kennedy siding with the liberals on the tax argument (oral arguments made it clear they weren't going to accept the Commerce Clause argument). So I was close.

Since nobody thought this was going to be decided on the tax issue, I'm having a hard time believing you correctly predicted this. Any evidence of such prediction?

[Moliere]

Why don't you spell out why they are the same?

He can't because they aren't

[Uncle Ted]

Honestly- spell it out.

Both are the same in that they try to influence the buying behavior of the tax payer which will most likely help (or has already helped) cause economic disaster and really should be eliminated. Pretty much other than that they are completely different.

[FMCoug]

Wow, McNaughton churns those out fast!

He probably had one ready for both results. Kind of like championship hats and shirts.

[Pelado]

I've made the tax argument on here and on CB. I think this is exactly like a tax. I dare anyone to show me the economic difference between this and the mortgage deduction.

Since nobody thought this was going to be decided on the tax issue, I'm having a hard time believing you correctly predicted this. Any evidence of such prediction?

I remember cali making the tax argument here in this thread.

[LA Ute]

I am loving the spectacle of liberals gushing over a Supreme Court decision that is a model of judicial restraint.

Here's Krauthammer's interesting take:

How to reconcile the two imperatives -- one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds -- interpreting the individual mandate as merely a tax, something generally within the power of Congress.
*
Result? The law stands, thus obviating any charge that a partisan Court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
*
Law upheld, Supreme Court's reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
*
That's not how I would have ruled. I think the "mandate is merely a tax" argument is a dodge, and a flimsy one at that. (The "tax" is obviously punitive, regulatory, and intended to compel.) Perhaps that's not how Roberts would have ruled had he been just an associate justice, and not the chief. But that's how he did rule.
*
Obamacare is now essentially upheld. There's only one way it can be overturned. The same way it was passed -- elect a new president and a new Congress. That's undoubtedly what Roberts is saying: Your job, not mine. I won't make it easy for you.

I've heard the (unconfirmable) rumor that Roberts would have voted with the other conservatives to overturn the mandate and the Medicaid provisions, but the others were insisting on overturning the entire law. Roberts did not want to do something that interventionist with a law that passed by 60 votes in the Senate. So he moved to the liberals and got the long-term results he wanted, while throwing the law back to the people to deal with through the legislative branch. That matches up with Krauthammer's theory.

[calicoug]

I remember cali making the tax argument here in this thread.

See- there you go.

Ok- I'll describe why they are functionally the same thing.

First, let's break down the mortgage deduction. If you are someone who itemizes your taxes, and you have a qualifying mortgage, you can deduct from your income (thereby reducing your tax liability) all or a portion of that mortgage amount. Easy enough. Now, let's simplify it even more for comparison purposes. We can all agree that the mortgage deduction could just as easily be a flat amount- say, the greater of $800 or 2% of your AGI. That's not what they actually did but again- let's keep the comparison simple. Let's assume further that when the mortgage deduction was enacted, it was enacted at the same moment with an overall across the board $800 tax increase. In this scenario, what do you have? You have a tax on everyone and a tax deduction only available to those who have a qualifying mortgage. Conversely stated, you have a penalty for failure to obtain a mortgage.

So, what are the differences from the mandate? Essentially that Congress did not enact an across the board tax increase equal to the mortgage deduction amount and they instituted a different formula for determining the amount of the deduction (based on the size of the mortgage taken).

If you are deciding the mandate case on the tax power of Congress (as the Court did), do those two factors above make any difference at all? Of course not- because they are totally ancillary issues. Functionally, the mandate and the mortgage deduction operate the same. In both cases, you are incentivized (whether by a "penalty" or by an inability to obtain a deduction) to adopt specific behavior. Encouraging desired behavior is one of the two clear purposes of Congress' tax powers (the other being the raising of revenue).

By the way, it's just not true that "nobody" predicted this path for the Court. The media may not have, but many academics and longtime Court watchers thought this was a likely approach (even if many changed their opinion on what the Court was likely to do (but not what the Court should do) after oral arguments).

[calicoug]

I am loving the spectacle of liberals gushing over a Supreme Court decision that is a model of judicial restraint.

Here's Krauthammer's interesting take:



I've heard the (unconfirmable) rumor that Roberts would have voted with the other conservatives to overturn the mandate and the Medicaid provisions, but the others were insisting on overturning the entire law. Roberts did not want to do something that interventionist with a law that passed by 60 votes in the Senate. So he moved to the liberals and got the long-term results he wanted, while throwing the law back to the people to deal with through the legislative branch. That matches up with Krauthammer's theory.

I haven't heard that rumor, but it's similar to my own belief on the subject.

I keep hearing an alternative rumor that Scalia's dissent was actually supposed to be the majority opinion (because it refers to the other opinion as the dissent), suggesting that Roberts was signed on for that opinion. I've also heard people say that Kennedy's attitude in the Court is evidence of this rumor (he was reportedly very angry looking while the opinion was being read). I don't buy this rumor at all.

If Roberts was susceptible to persuasion that the bill should survive (and clearly he was), I think there is no chance he would have assigned the opinion to Scalia. Scalia was not ever going to fashion an opinion that would strike a balance on anything. He was always going to fight to kill the whole bill. That makes me wonder if he assigned the opinion to Kennedy and Kennedy actually wrote an opinion but then in the last days was unable to put together a coalition to agree with the approach he was articulating. Perhaps at that point, Roberts jumped ship to say it is better to uphold on limited grounds and Kennedy felt jilted, then jumping to join Scalia's dissent. We'll never know.

You could also make a Machiavallian argument that Roberts knew Scalia would write a crazy opinion and gave Scalia the opinion hoping it would prompt Kennedy to back away and join a moderated opinion with Roberts and the liberals to give a 6-3 decision (only to see Kennedy still join Scalia's opinion).

Either way (or some other way), I like the outcome.

[calicoug]

Since nobody thought this was going to be decided on the tax issue, I'm having a hard time believing you correctly predicted this. Any evidence of such prediction?

Here's a pretty long thread I started from back in March making the tax argument:

http://www.cougarboard.com/board/mes...tml?id=8425256

[LA Ute]

From Mike Allen's Playbook e-mail today:

PLAYBOOK FACTS OF LIFE: Obama looks like a winner, and you can't underestimate the subtle impact that has on casual voters. The attack on Obama that has tested best with focus groups - incompetent, in over his head - is now in tatters.

Wow. Discuss.

[All-American]

See- there you go.

Ok- I'll describe why they are functionally the same thing.

First, let's break down the mortgage deduction. If you are someone who itemizes your taxes, and you have a qualifying mortgage, you can deduct from your income (thereby reducing your tax liability) all or a portion of that mortgage amount. Easy enough. Now, let's simplify it even more for comparison purposes. We can all agree that the mortgage deduction could just as easily be a flat amount- say, the greater of $800 or 2% of your AGI. That's not what they actually did but again- let's keep the comparison simple. Let's assume further that when the mortgage deduction was enacted, it was enacted at the same moment with an overall across the board $800 tax increase. In this scenario, what do you have? You have a tax on everyone and a tax deduction only available to those who have a qualifying mortgage. Conversely stated, you have a penalty for failure to obtain a mortgage.

So, what are the differences from the mandate? Essentially that Congress did not enact an across the board tax increase equal to the mortgage deduction amount and they instituted a different formula for determining the amount of the deduction (based on the size of the mortgage taken).

If you are deciding the mandate case on the tax power of Congress (as the Court did), do those two factors above make any difference at all? Of course not- because they are totally ancillary issues. Functionally, the mandate and the mortgage deduction operate the same. In both cases, you are incentivized (whether by a "penalty" or by an inability to obtain a deduction) to adopt specific behavior. Encouraging desired behavior is one of the two clear purposes of Congress' tax powers (the other being the raising of revenue).

By the way, it's just not true that "nobody" predicted this path for the Court. The media may not have, but many academics and longtime Court watchers thought this was a likely approach (even if many changed their opinion on what the Court was likely to do (but not what the Court should do) after oral arguments).

I disagree with the decision, but I will acknowledge that it is not an argument without base; it's one that a sophisticated and intelligent lawyer could take and withstand arguments to the contrary. You're not going to see conservatives decrying this opinion, like liberals still decry Bush v. Gore. If there is outrage, it will be channeled to November, all the while maintaining the integrity of the court and single-handedly undoing every argument that the Court does anything but call balls and strikes. It's an admirable performance, whether you agree with it or not.

[byu71]

From Mike Allen's Playbook e-mail today:



Wow. Discuss.

Sometimes an opinion expressed is nothing more than wishful thinking. Even I am guilty of this occasionally.

[oxcoug]

I'm beginning to come around on this being the most ecstatically misunderstood SCOTUS ruling ever. As Obamaphile Ezra Klein noted in WashPo this AM:

Roberts sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid.

And by clarifying that the mandate is a tax the decision both (a) makes it possible for the Senate to overturn the ACA without getting filibustered and (b) strips Obama of his ever-dubious claim to have not raised taxes, making his political case for re-election more problematic. Survey data to this point from today from Survey USA: In CA, 45% disagree with the decision and 44% agree, in FL 50% disagree and 39% agree. The election will now be turned into a referendum on what the SCOTUS has defined as a massive new tax increase on the middle class.

The last time the left climaxed over an apparent health care win the Dems lost 60 seats in the House in the ensuing election. We will see how it unfolds but this has the makings of a major Pyrrhic victory.

The Economist comes to some of the same conclusions saying that Roberts position on the Commerce Clause amounts to "a sizable, if weird victory for the conservative and libertarian legal theorists."

http://www.economist.com/blogs/democ...t-0?fsrc=gn_ep

The article points out liberals other than Klein are beginning to see this as an uber-crafty stealth coup of a ruling. Jon Chait writing that

The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law.

What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

We'll see. Gonna be an interesting year.