Obamacare and the Supreme Court

[byu71]

You know how Michelle Obama is fighting obesity. How about a law you buy some type of ex-lax product and take it daily OR you get fined (taxed).

I am wondering for selfish reasons. If we think this could happen I would research which company has the best ex-lax product.

[All-American]

So the mandate isn't constitutional under the commerce clause. However, the "tax" for not complying with the unconstitutional mandate is constitutional? I'm so relieved.

It's bad policy. We have a way of dealing with bad policy.

[myboynoah]

You know how Michelle Obama is fighting obesity. How about a law you buy some type of ex-lax product and take it daily OR you get fined (taxed).

I am wondering for selfish reasons. If we think this could happen I would research which company has the best ex-lax product.

The Elvis Presley diet. It doesn't work.

[Jacob]

I can understand people not liking this. I can understand people not liking the legislation. What I can't understand is people placing this in some larger narrative where the constitution has just been destroyed or this represents some massive shift. It's an important decision but the battle some people seem to think they are fighting was lost when the New Deal legislation was upheld back when LA was in law school. I think for some people the real issue is their belief that it is a quasi-holy text and that changing it (which is precisely what has allowed it last to so long) just can't be good. Must be part of some bigger more important end of days picture. Yeesh. Forgive me, I have been reading my facebook feed.

I agree that this decision is in line with a long line of cases agranting the federal government unlimited powers. But I'm also worried this is a big shift. We had a shift when the court started limiting the commerce power with Lopez and its progeny in the 90's. That was a major shift and a major win for people, like me, who think that our government is one of limited--or enumerated--powers, as Roberts claims in his opinion today. But I'm not seeing how Roberts' new analysis contains any real limiting principle.

I don't know what the defined penalties were under the Gun-Free School Zones Act of 1990 that was invalidated in Lopez, but I'll assume that it included potential jail time. The court said that congress had no power to proscribe the possession of a firearm, because possession is not commerce. (I know I've simplified it).

Well, under Roberts' reasoning, congress can pass a law the imposes a tax on anyone who is found in possession of a firearm in a school zone, so long as the penalty for such possession is a tax, no matter how steep. Congress can make the fine/tax equal to, say, $50,000. That's a steep tax, but it is a tax. And if the offender refuses to pay the tax, he will be subject to criminal sanctions, including jail time. All this is OK according to Roberts, because it is a tax, and the offender has the option of paying the tax, if he wants.

So, isn't this a major shift away from the Rehnquist court's commerce clause jurisprudence?


A different argument. I can't understand why the court should reule an acto constitutional merely because congress could have chosen to pass legislation in a different way than what they did. The penalty is not a tax, according to the bill. Let's say Congress could have fixed the whole thing by passing a tax. Why shouldn't the court simply say so? "You guys could have done this as a tax. It doesn't stand as a penalty. If you want, go ahead and pass a tax, but this court is not going to write your legislation for you." In that sense, the court is being more activist than if they had struck down the law as unconstitutional. They are re-writing the act as a tax, despite the clear intention of the congress and the President to not pass a tax.

[All-American]

Money quote from John Roberts:

“It is not our job to protect the people from the consequences of their political choices.”

Wow. I'm somewhat in awe of what John Roberts did here. He upheld the legislation thereby placating the morons crying out about a partisan 5 vote majority usurping the will of the people (60% of whom want this legislation gone). But then he used it as an opportunity to curtail the expansiveness of Congress's commerce powers. And to top it off, he then calls the thing a tax and thereby gives the GOP the tools to repeal it without the possibility of a filibuster. The line above, to me, signals that Roberts thinks this is bad legislation but the voters just need to vote out of the idiots who dreamt this scheme up.

Roberts apparently was never going to sign off on the commerce power argument the Obama administration was proposing. He could have just ignored the tax power argument and just gone with the four dissenters -- the result of that would have been the lefties screaming about the Supreme Court, bringing up old Bush v. Gore grievances and potentially giving Obama the opportunity to run against the Court and on the issue that he needed a second term so he could be the guy to replace Ginsburg and Scalia. Now, the lefties are placated, Roberts has given himself a ton of capital as the current leader of the Court and he's kept the same hammer in place the GOP used to get 60+ additional members in 2010 and given them the opportunity to get rid of this thing.

I thought the real dig was toward the conclusion:

The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.

I think Robert's behavior today is very consistent with somebody who doesn't like the law at all, but also believes that it is beyond his power to change it.

[Color Me Badd Fan]

I agree with this, and while I deeply respect Roberts' integrity, I wonder if there wasn't a small part of his thinking that included a desire to make the Court look less political and buy himself, as you note, a lot more capital. The big question now is whether the opponents of Obamacare can rally enough support to vote in those who can repeal or materially alter the Act. I'm not at all certain they can.

IMO, from a pure policy standpoint it would have been better had they just gotten rid of it, because there's a very good chance that Romney won't win this election. I think private health insurance is going to be destroyed if Obamacare continues in its present form. Since Roberts has labeled this a tax, and not a penalty, and said that people have the choice of either getting health insurance or paying this tax (and cites the cigarette tax as an example), then many rational people will make that exact choice -- I'm just going to pay the tax which is a lot less than health insurance. Once they actually need it, only then will people buy it. Employers with over 50 employees are apparently mandated to provide insurance or pay a tax (not a penalty!) of $2,000 per employee. Many employers will just choose to pay the tax which in many or most cases is a bargain compared to paying for health insurance.

It doesn't take Indy to tell everyone that the insurance business won't survive if the only people paying for it are people that actually need it. I don't think employers with over 50 employees will be able to prop things up because those premiums will increase to waaaay over $2,000 per year (and $2,000 is already more expensive than almost every non-catastrophic, high deductible plan). Whether this is a good thing is an entirely different argument. I happen to believe that it wouldn't be the end of the world if we went to a single payer system because the health insurance industry was ruined by Obamacare. It's not like things are dandy now with the how much health insurance and healthcare costs -- it's all clearly a rotten system.

I don't think Roberts planned all of this, but what I said in the previous post is the natural result. I think the GOP will retake the Senate. The only question remaining is whether Romney wins. If that happens, Obamacare is gone and we're left with some precedent that curtails Congress's commerce power. So, this may work out to being quite damaging to the Democrats' overall view of government while also giving an incredible amount of credibility to Roberts. The danger of course is that Obamacare survives with Obama being reelected.

There are arguments to be made on whether overturning the legislation or upholding the legislation would have made things easier for Romney to win the election. I think he would have been better off if the court had overturned it -- but I understand the other side which people like Althouse believe which is that this mobilizes the base and many moderates to get behind Romney because of the necessity to defeat Obamacare. The idea behind it is that as long as Obamacare was overturned by the Court, then the GOP House could keep Obama in check and thereby lessens the urgency of defeating him in November. Now, he absolutely has to go or we potentially have to suffer the Obamacare consequences.

[Color Me Badd Fan]

someone else posted this. But guess what, I AM a constitutional scholar by profession, kind of like you're a Lat lit scholar.

I'm glad then that I can count on your scholarly opinion that, in fact, the Supreme Court is not elected. I was wondering about that today and I'm glad we have someone here to set me straight.

[Jacob]

Under the old law, didn't the government mandate that one must buy some form of health insurance by assessing a fee if one didn't purchase insurance on ones' own? It seems that the court is saying that fee is actually a tax and the government has the right to assess taxes.

What "old law" are you referring to? Prior to Obamacare, there was not such mandate or requirement for an individual to purchase health insurance. Not government fee or tax or penalty for not purchasing.

[All-American]

So the mandate isn't constitutional under the commerce clause. However, the "tax" for not complying with the unconstitutional mandate is constitutional? I'm so relieved.

Unfortunately, the Supreme Court does not have the power to save us from the stoopid decisions of Congress or the President-- just the unconstitutional ones.

[SeattleUte]

I'm glad then that I can count on your scholarly opinion that, in fact, the Supreme Court is not elected. I was wondering about that today and I'm glad we have someone here to set me straight.

My policy is to be ever available to provide whatever tutorial I deem you require.

[Omaha 680]

How would you like to be a democrat running for the Senate or House right now. Of course if you are Pelosi, Wrangel Feinstein, no problem.

I mean like the Senator in Missouri and our very own Matheson. He for instance is over and over again going to have to tell how he voted "against" Obamacare and vote to indite Holder. Gee, Mr Matheson, why are you a democrat. Gee, are you comfortable having Pelosi and Obama as your leaders.

There will probably be even more dems deciding not to go to the convention.

Senator Ben Nelson (D) in my state is retiring rather than get kicked out in November because his vote for Obamacare is so unpopular here. Former governnor and senator Bob Kerry (D) is running for the empty seat. I think this ruling makes it impossible for Kerry to win in spite of him still being relatively popular here.

[UtahDan]

Money quote from John Roberts:

“It is not our job to protect the people from the consequences of their political choices.”

Wow. I'm somewhat in awe of what John Roberts did here. He upheld the legislation thereby placating the morons crying out about a partisan 5 vote majority usurping the will of the people (60% of whom want this legislation gone). But then he used it as an opportunity to curtail the expansiveness of Congress's commerce powers. And to top it off, he then calls the thing a tax and thereby gives the GOP the tools to repeal it without the possibility of a filibuster. The line above, to me, signals that Roberts thinks this is bad legislation but the voters just need to vote out of the idiots who dreamt this scheme up.

Roberts apparently was never going to sign off on the commerce power argument the Obama administration was proposing. He could have just ignored the tax power argument and just gone with the four dissenters -- the result of that would have been the lefties screaming about the Supreme Court, bringing up old Bush v. Gore grievances and potentially giving Obama the opportunity to run against the Court and on the issue that he needed a second term so he could be the guy to replace Ginsburg and Scalia. Now, the lefties are placated, Roberts has given himself a ton of capital as the current leader of the Court and he's kept the same hammer in place the GOP used to get 60+ additional members in 2010 and given them the opportunity to get rid of this thing.

Good analysis.

[Pelado]

There might be a nice little business out there for someone to start.

During the day I have talked to some fellow workers here and a few clients. We talked about this and some of the things I have heard on the board.

I now know two more people who are doing what I am, paying at least one childs health insurance. Now, if we could pay a consultant to guide us through this thing, I would gladly do it.

Charge 10% of savings. I already know where someone could make a quick $480 bucks. You wouldn't have to taylor make it for each person, just the proper steps.

Perhaps you could do it Robin unless you are totally against the higher income folks having wealth transferred their way.

It's not legal to charge a fee contingent on tax savings or refunds. A consultant could, however, charge a flat fee or bill an hourly rate for the type of work you suggest. It's a little premature, though, since the whole law could be repealed prior to full implementation.

[Jacob]

Money quote from John Roberts:

“It is not our job to protect the people from the consequences of their political choices.”

Wow. I'm somewhat in awe of what John Roberts did here. He upheld the legislation thereby placating the morons crying out about a partisan 5 vote majority usurping the will of the people (60% of whom want this legislation gone). But then he used it as an opportunity to curtail the expansiveness of Congress's commerce powers. And to top it off, he then calls the thing a tax and thereby gives the GOP the tools to repeal it without the possibility of a filibuster. The line above, to me, signals that Roberts thinks this is bad legislation but the voters just need to vote out of the idiots who dreamt this scheme up.

Roberts apparently was never going to sign off on the commerce power argument the Obama administration was proposing. He could have just ignored the tax power argument and just gone with the four dissenters -- the result of that would have been the lefties screaming about the Supreme Court, bringing up old Bush v. Gore grievances and potentially giving Obama the opportunity to run against the Court and on the issue that he needed a second term so he could be the guy to replace Ginsburg and Scalia. Now, the lefties are placated, Roberts has given himself a ton of capital as the current leader of the Court and he's kept the same hammer in place the GOP used to get 60+ additional members in 2010 and given them the opportunity to get rid of this thing.

I'm not seeing it. You are saying that Roberts, while saying it was not his job to fix the people's political mistakes, in fact, intended to fix the people's political mistakes. I take him at face value. He tried to be judicially modest, in his view, by creating a new analysis which allowed him to approve of the law. But why then did he bother ruling on the commerce clause? If he were acting with restraint, he would not have addressed the commerce clause argument as the legislation was saved under the taxing power. Ruling that it survived the commerce clause was an act of judicial reach. Of judicial activism when the ruling was unnecessary. Still, I hope he is not so confident in himself as to believe that his decision will lead to the outcomes that you surmise. I don't believe he had any intention of affecting the legislation one way or the other, other than to say whether it is constitutional.

[Color Me Badd Fan]

There's a column on RCP talking about how John Marshall outwitted Thomas Jefferson in Marbury by ruling in favor of Jefferson's administration but had thereby made it impossible for Jefferson to directly interfere with the his use of judicial review in that case. Jefferson couldn't fight Marshall's use of judicial review because Jefferson got a positive result from the case at hand. Jefferson had won the relatively minor battled, but but Marshall had won the war by establishing judicial review.

He likens it to what Roberts just did. The lefties won on the result, but they'll lose in the future on both precedent and by virtue of the capital that Roberts has built up for himself and the Court. And if Romney wins in the fall, winning on the result will be worthless. Meanwhile if Roberts wants to scale back affirmative action and other things, the calls of him and the Court being political hacks will be significantly less persuasive.