Obamacare and the Supreme Court

[venkman]

A fair question, but I think Roberts is a conservative and just has integrity.

Can he be conservative, have integrity, and be just plain wrong? That's a definite possibility!

[All-American]

Dissent, on the penalty v. tax distinction:

The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITHPENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un-constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty

[byu71]

At least the market is acting well. Who really cares though. Subsidized health care from the government and the only downside is the rich people take a hit in their 401K's.

Robin must be doing a jig.

[Uncle Ted]

God bless you Sarah!!

Justification for reading the mandate as a tax:

Of course, it is a tax. Obama said that mandates were not the solution from the beginning.

[YOUTUBE]EoSnqofelsQ[/YOUTUBE]

As for making health insurance affordable. He has done that too. It is only going to cost me $600 a year.

[Uncle Ted]

At least the market is acting well. Who really cares though. Subsidized health care from the government and the only downside is the rich people take a hit in their 401K's.

Robin must be doing a jig.

It might be a good idea to roll that 401K into a Roth IRA. Take that tax hit now and let Robin and the other young people figure out how to they are going to subsidize your health care while you are living on your tax free retirement.

[Surfah]

As for making health insurance affordable. He has done that too. It is only going to cost me $600 a year.

Not quite:

http://www.washingtonpost.com/wp-srv...eans-for-you/#

[All-American]

Dissent, on the novelty of the majority's interpretation:

We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant onstitutional consequences of a penalty—such as “license” (License Tax Cases, 5 Wall. 462 (1867)) or “surcharge” (New York v. United States, supra.). But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a penalty.” Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax
against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

[byu71]

Of course, it is a tax. Obama said that mandates were not the solution from the beginning.

[YOUTUBE]EoSnqofelsQ[/YOUTUBE]

As for making health insurance affordable. He has done that too. It is only going to cost me $600 a year.

Someone is going to have to educate me on this. I am paying one of my boys health insurance premiums, $150 per month. Where does he pay the $600 and on his way to the hospital, who does he call to get the insurance?

I guess if you can't beat them, join them. This will save me $1,200 a year. I guess this is a transfer of wealth from someone to me. Thanks whoever you are.

[ERCougar]

As for making health insurance affordable. He has done that too. It is only going to cost me $600 a year.

Ha, exactly.
If he's going to call this a "tax", I think I'll call this my new "premium".

[All-American]

Dissent throws out a zinger on the "not a tax, but a tax" position of the majority:

What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

[Indy Coug]

Someone is going to have to educate me on this. I am paying one of my boys health insurance premiums, $150 per month. Where does he pay the $600 and on his way to the hospital, who does he call to get the insurance?

I guess if you can't beat them, join them. This will save me $1,200 a year. I guess this is a transfer of wealth from someone to me. Thanks whoever you are.

Exactly. The tax/penalty for not purchasing insurance is unconstitutional and/or it's wholly insufficient to remove the overwhelming anti-selection that will gut the healthcare system.

[All-American]

Dissent, closing:

The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union. Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.

[byu71]

Dissent, closing:

Who dissented.

[Moliere]

Not quite:

http://www.washingtonpost.com/wp-srv...eans-for-you/#

Not quite, but close. Let's say Uncle Ted lives with only his wife (I have no idea if all his kids are moved out) and makes $100,000 a year (I'm sure he makes more). His penalty is around $1,400 a year. That's pennies compared to the cost of a typical health care plan that would be required under ObamaTax. Anyway you slice it, the penalty is the better option if you are currently healthy since you can get coverage at any time.

[All-American]

Who dissented.

Scalia, Kennedy, Thomas, Alito.