Free Markets, Free People

ObamaCare ruling: Silver lining or whistling past the graveyard?

George Will has a column out today declaring that conservatism won “a substantial victory” yesterday:

Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.

The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:

“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”

If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”

The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.

I’m sorry, I’m just not feeling it.  What part of the “tax” isn’t “pregnant with rampant statism”?  Why did John Roberts feel compelled to save the mandate by helping the administration identify it as a tax?

And more importantly, since when did taxation go from simply being a means for funding the functions of government to a means of incentivizing/controlling behavior?  To me that’s what approving the mandate as a tax has sanctioned.  We make fun of the nannies who want to control what we do, eat, say, etc.  This precedent just sanctioned a method of doing so.  It says it is okay to coerce desired behavior through taxation.indmandate

Perhaps, as Will opines, it will limit the Commerce clause which is already insanely overstretched in application.  Maybe it finally does draw a much brighter line around the clause, at least marginally.

However, the downside is worse than any upside.  The ruling essentially sanctioned the state’s requirement to purchase health insurance and gave it the okay to “tax” those who don’t comply.  I’m sorry, you may want to play the word game with them and call it a tax, but it is clearly identifiable to me as a penalty. 

That’s just wrong. 

One of the more interesting ironies is that within the same ruling the Court found that the Federal government was being coercive toward the states by requiring they comply with the new Medicaid mandates or lose their current Medicaid funding.

How is that anymore coercive than the “tax” required to be paid if an individual decides not to purchase health care insurance?

Taxation as a mechanism of control and/or enforcement of desired behavior is as coercive as the part on Medicaid which was struck down by the court.  At least in my opinion.

There may indeed be a silver lining in the ruling as Will outlines.  But a “substantial victory”?  It sounds like David Axlerod trying to spin the Wisconsin results as a huge win for Obama and trouble for Romney, doesn’t it?  If this was a “substantial victory”, then so was Pearl Harbor.


Twitter: @McQandO

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24 Responses to ObamaCare ruling: Silver lining or whistling past the graveyard?

  • “And more importantly, since when did taxation go from simply being a means for funding the functions of government to a means of incentivizing/controlling behavior? ”
    While I share both your frustration and your view about the proper role of the tax, this is a strange way to put the question. The tax code is *the* preferred way way to incentivize behavior, at least in terms of positive incentives. That’s why there are so many tax expenditures. The link here has the huge list as an appendix: JCS-3-08

    • Although I don’t think its ok, there isn’t much in the Constitution to block Congress from applying punitive/incentivised taxes to control behavior. 

      They’ve been doing it for a while.  Off an on, there’s been tax advantages for marriage, having children, going to school. 

      The difficulty I have is if that wasn’t how Obama was making his case, then Roberts shouldn’t have made it for him. 

      • Oh I agree with the point about Roberts. Somewhere in this process Roberts got cold feet and I find that terrifying. If he can be swayed by “legacy” or other temporal or political concerns vs. legal arguments, we’re well and truly screwed.

      • Any marriage penalty or advantage is buried, it doesn’t explicitly SAY you haven’t gotten married JPM, so we’re fining taxing you extra because of that. It doesn’t explicitly say we’re penalizing you for not having kids.
        This one has jumped that chasm, now you’re being fined taxed explicitly for your failure to take an action.
        In addition, I maintain that lowering my taxes by giving me a credit is not explicitly costing YOU more on yours (I grant, it gets spread out across the nation, a little bit from each of us). This is an actual, costs you more, penalty.
        You’re right, they’ll dress it up in the tax code as a ‘credit’ if you have health insurance, without bothering to explain why as a private citizen, not using the government non-existent universal health care system, you should be receiving a credit.
        But after all, this credit or penalty is NOT the worst thing going on here.  It’s the entire mandate that’s going to screw us over, and it’s the in your face acceptance of the precedent that Congress CAN punitively fine you tax you for whatever happens to suit their fancy.
        The fact that it’s income graduated is even more bullshit. Like a illegal alien between the ages of 16 and 30 new citizen with 4 kids and no health insurance with a low income is costing the system the same as a single person with a high income and no kids who doesn’t buy health insurance.

    • At to it being a tax, not a penalty –
      Well, here’s the opinion from the people who implemented it –

      • It doesn’t matter what they told the public, its the case they made before the supremes.  And they would have come back with tax approach eventually. 

        The only bone is whether they actually made that argument in front of Roberts, or Roberts volunteered it this time out for them.  If he did, that’s f’d up.  If they made the case whether they deceived the public or not is moot. 

        • I’m comfortable with the conclusion that Roberts invented it to justify this thing – for whatever reason.  I’m not going to speculate on why he did it since that’s totally pointless.   Even though it’s less than 24 hours old the decision is as much a part of history as the signing of the Declaration of Independence or the bombardment of Ft Sumter.   Hopefully what follows from Roberts, decision, won’t have consequences quite as far reaching as either one of those previous historical incidents.
          Now who do we appeal to that’s higher than the Supreme Court?  All we have is the slow process of riling up the American Public to elect representatives and a President to change the law.   And you have to replace damn near the whole place if you want them to get the idea out of their heads that they do NOT have a Constitutionally sanctioned authority to levy penalties, or even taxes, on us for any damn thing they choose.

          • The mechanism to undo this is a Constitutional amendment to limit Congress’ ability to arbitrarily raise and levy taxes for behavior control.    Or perhaps broader than that.

        • The feeling on Roberts seems to boil down to the fact that he agreed with the petitioners points but departed on the penalty vs tax.

          Others seem to thinks this was a warning to the Congress to not do this again, as all future legislation will be constitutional based on this new standard, but this one time he was going to let this stand (wink, wink, hudge, hudge, know what I mean).

  • This was only a victory for Roberts.  He was desperate to keep the Court from overturning it on a 5-4 decision.  He fell for the left wing talking points about the Court being somehow tarnished if this was seen as  a political act.  He grasped at so many straws that he built a raft.  I read the syllabus of the decision.  Even I could see the contradictions within the same paragraph and the stretches of logic. The whole thing reeked of desperation.

  • I see where you’re coming from, but “we” already use the tax code for this kind of thing all the time. Not having a kid is effectively taxed, same for not having a mortgage. Yeah, those are framed as “credits” and “deductions”, but that’s just an accounting shell game.

  • Andy McCarthy’s take on this was dead on…

    Just as an appeals court may not legitimately rewrite an indictment and revise what happened at a trial, neither may it legitimately rewrite a statute and fabricate an imaginary congressional record. But today, the Supreme Court rewrote a law — which it has no constitutional authority to do — and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.

    Roberts had to go completely outside the law to reach his result.  That is impossible to view as anything BUT disaster.
    One the other hand, those of us who said this pile of crap was unconstitutional were totally vindicated.  (World’s smallest “yippee”).

  • If this is a “tax”, just how can the SCOTUS rule ?  The Anti-Injunction Act would then be in effect.

  • So they dont do it under the commerce clause.  Instead they can say DO X or pay a tax with X being just about anything.

    THe republicans should pass a tax that says  “You must own a gun or pay a nongunowner’s tax” and watch the libs go ballistic calling it unconstitutional.

    • Well, we don’t like to call it a tax, so we’ll build it into the tables, and then we’ll give you a $200.00 credit for every gun you own instead.  Extra credit for semi-automatic weapons.

      • Most certainly some localities could do it.
        But what I would like to see is States setup a counter tax structure with taxes and credits that invert the federal system.  The net tax burden would still be there, but the behavior control would be nullified.
        They have seriously opened Pandora’s box far more than the commerce clause because in a lot of situations states and localities have more tax options than the feds.
        Although I guess they could override those with the commerce clause.

  • Get Romney and 51 senate seats. If they don’t repeal by means necessary the GOP is on its own. Forever

  • George Will sees a half-full glass. I see a half-empty one. If I am not mistaken, four justices ruled that the Commerce clause was a valid basis for the mandate.

    • Right. And four – to include Justice Kennedy! – found the entire law unconstitutional. Roberts came up with a tax and sided with those who found the Commerce clause argument valid.

      I laugh (ruefully) now having worried about what Kennedy had had for breakfast.

      • Why should we take happiness In the gutting of the commerce clause when Roberts just raised up the definition of a tax to a whole new and massively expanded label? That alone is worse than Barackycare longterm

  • In the midst of a fiery floor debate over contempt proceedings for Attorney General Eric Holder, House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) quietly dropped a bombshell letter into the Congressional Record.

    The May 24 letter to Rep. Elijah Cummings (D-Md.), ranking member on the panel, quotes from and describes in detail a secret wiretap application that has become a point of debate in the GOP’s “Fast and Furious” gun-walking probe.

    The wiretap applications are under court seal, and releasing such information to the public would ordinarily be illegal. But Issa appears to be protected by the Speech or Debate Clause in the Constitution, which offers immunity for Congressional speech, especially on a chamber’s floor.

    • Heh   🙂  An immunity they’ve been granted that I finally see a practical use for!  Score one for using the twisted rules for a good purpose.

  • Still looking for a silver lining in the ObamaCare decision ?

    Given that the SCOTUS declared a monetary “penalty” to be a tax, I guess  now I can deduct traffic and parking tickets under “Taxes other.”

    Got fined by the EPA, FTC, FCC, SEC … deduct it .. they are now taxes
    Got a penalty for early withdraw of 401(k) funds … deduct it .. they are now taxes