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June 29, 2012

The Supreme Court, the Mandate, and “Taxes”

  8:18 am

In light of the Supreme Court’s decision to uphold the Patient Protection & Affordable Care Act (PPACA), conservatives have by and large been apoplectic. A picture with Chief Justice Roberts above the word “traitor” has made its way around Facebook, his Catholic faith has been called into question, and Mitt Romney’s campaign says 42,000 donations worth $4.2 million has been raised since the decision came out.

Voices more knowledgeable and of higher status than mine have commented at length about the Court’s decision, and so I won’t get into most of the decision, but I did want to make three brief comments:

First, if the individual mandate is a tax, Americans can now be forced to buy anything. From Right Wing News’ John Hawkins via Facebook via Twitter: “Per John Roberts, it would be constitutional to force every American to buy a Chevy Volt or Al Gore’s “Earth in the Balance.” Correct?” Related, from Hot Air’s Ed Morrissey this morning comes a mocking proposal that all Americans should have to buy guns or face a “tax.”

To me, the Court’s decision essentially supports a complete violation of the free will contract history of America. If someone puts a gun to my head and forces me to sign over all of my assets to him or her, that contract used to be null and void. With the allowance of the federal government to put what I’ll call a “tax gun” to my head and force me to buy insurance from a private entity, free will contracts have essentially been declared null and void, at least for the federal government.

A former co-worker who graduated from Harvard Law last year pointed out this morning that government has coerced private, non-free will actions in the past, such as by implementing minimum wage laws. However, we both agreed that a free will contract of employment has to be entered into before the minimum wage aspect of employment is implemented.

Second, taxes have traditionally been for actions – sales taxes for spending, income taxes for earning, cigarette taxes for smoking, etc. This mandate, for what I believe is the first time in America (though I could be wrong), “taxes” withholding action. And, to quote many conservatives, it does so in an extremely regressive fashion.

Lastly, Erick Erickson and George Will have said Chief Justice Roberts’ decision to support the individual mandate as a tax has given conservatives several political gifts, among them an energized base for the November elections, a deflated liberal base that was going to target the Court as illegitimate, and strong limits on expansions of the Commerce Clause. To which I respectfully reply: that’s not the job of a Supreme Court Justice.

Now, Erickson is a lawyer and George Will is about a gazillion times smarter than I am, so I may be speaking out of turn, but if Roberts decided as he did for these reasons I would have to say his choice smacks of judicial activism. If Roberts did indeed rule as he did to limit expansion of the Commerce Clause, and give conservatives a better chance of taking Congress and the Presidency in the fall, those are respectable political goals. But is that the job of a Supreme Court justice? To me, the job of the Supreme Court is to interpret the Constitution regardless of consequences – as conservatives rightly insisted when Justice Sotomayor was first nominated, and President Obama wanted a justice who had “empathy.” To step outside of that while on the bench is to violate the trust of the position of Supreme Court Justice.

Anyway, those are my thoughts. Try to have a great weekend.


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26 Responses to “The Supreme Court, the Mandate, and “Taxes””

  1. The Supreme Court, the Mandate, and “Taxes” « The Greenroom

    […] [Originally posted at Race42012.com] document.write(''); […]

  2. glenntexas

    The new “power” to tax inactivity given by “conservative” Justice Roberts is the scariest, worst outcome possible. THIS needs to be hit on again and again by Romney and Republicans. The power to regulate the inactivity of commerce was perhaps limited, but the power to tax inactivity was broadened.


  3. Claire

    I don’t think it’s fair to assume anything about why Roberts ruled the way he did. The only thing we can do is read his argument, and take it at face value. (But I do think Krauthammer makes a lot of sense.)

    Today Jindal accused Roberts of pandering to the media. Pence likened the ruling to 9-11. A lot of Republicans are focusing on the wrong target! It’s over and done. We need to keep this about Obama.

    So Dustin, I guess I’m saying that we should not accuse Roberts of anything, because we don’t know.

    And Also, I don’t think it was very presidential of Jindal to target Roberts. Just my opinion.

  4. Dustin Siggins

    Claire, I actually intended to note in the post that I think conservatives are overreacting in their attacks on Roberts. I forgot to get around to do doing that. :o/

  5. MindTheGap76

    I’m not fully on board with Roberts’s decision, but it isn’t totally crazy. For example, most of us have been paying higher taxes for the past few years because we did NOT buy a hybrid or electric car.

  6. Jaehos

    5. That’s a funny way to look at it. You didn’t have to pay extra taxes – other people just paid less.

    That’s not how Obamacare is structured. To be more akin to the the tax situations we have today, *everyone* should have to pay the $695 fee, and some of us would get it kicked back to us at tax time. If that was the approach there would probably be less outrage about the new form of tax the Court just authorized.

    Of course, handling that way would likely never pass through the Congress.

  7. machtyn

    From reading opinions of other people who are much smarter than me, it sounds like the ruling given by Roberts is a clash of illogic, from a confused mind on the matter. Both the initial cause, mandate is constitutional under the commerce clause, and the ruling, mandate is constitutional under the powers of taxation, both truly fail under an examination of the U.S. Constitution.

    At this point, Congress will have to sign into law, and the President sign it, an amendment that explicitly denies a power of Congress. Whereas before, anything not enumerated could not be done. In this case, what was an action that was not enumerated is one the Supreme Court stated is actually be actionable.

  8. Claire

    Dustin, yeah, I think they are too.

    I guess what I meant to say and didn’t say very well, is that even though Will and others say it was a political gift, I don’t think we can assume that Roberts intended it as such. At least I’m not ready to believe he did. I still think the man has integrity.

  9. machtyn

    is actually be actionable.
    can actually be actionable.

  10. MindTheGap76

    6. I agree that it is a different way of looking at it, and I’m really uncertain that it is the correct one (which is why I’m not fully on board with Chief Justice Roberts). But just pointing out that he is not entirely crazy.

  11. ilfigo

    I think Republicans criticizing Roberts are either politicians or not true constitutionalists.

    The Constitution specificially states “The Congress shall have Power To lay and collect Taxes.” There is no limitation placed in the Constitution on that power, as there are on other enumerated powers. In fact, not a single elected GOP has ever stated that it is unconstitutional for Congress to lay and collect taxes. It may be unfavored and, at times, idiotic to lay taxes, but not unconstitutional.

    Although this was not the basis that Obama and Dems used when passing the bill, it was an argument raised by Obama to the SCOTUS. Roberts did not create the argument, nor did he expand this power since the Constitution does not restrict the power. The only limiting factor recognized in the Constitution, and recognized by Roberts, is the power to elect new people into Congress. Although limited, the American people need to hold its elected officials responsible. Therefore, crazy scenarios such as forcing people to buy guns or any other product based on the “tax gun” is CONSTITUTIONAL, but likely will never pass.

    As a strict constitutionalist, I praise Roberts for his position. Nevertheless, I am disappointed that Obamacare lives on. Although I wish the dissent could have won, I would strayed a bit from the strict interpretation of the constitution or opened the doors to the court relying on congressional intent. Roberts single-handidly re-established the conservative view of the role of the judiciary. Lets not be hypocrites and allow judicial activism only when it serves our interests. I think this case, will and should be used by conservatives for decades to come (same-sex marriage, abortion, etc.)

    Now…every action has consequences and if played right, the GOP can win the war on Obamacare. Romney and the GOP need to be careful on their response (as identified by certain posters re Jindal and others). The best play would be to put the pressure back on Obama. Romney should hold a press conference and challenge the POTUS to finally live up to his promises of no new taxes and transparency. Romney should encourage Obama to get Dems to support the full repeal of Obamacare so that no new taxes are raised on the middle class and that the American people (and especially its elected officials) can support any new healthcare bill based on the truth: whether it is absolutely a tax or not.

    Obama would have to respond in one of two ways: 1) Ignore Romney and reject the challenge, or 2) Obama admits it is a tax and changes should occur. If No. 2 happens, we can repeal the law and Romney looks Presidential in getting Obama to change. However, No. 2 is unlikely with this POTUS. Therefore, after Obama responds (and he will have to), more people will be aware of Obama’s promises and former position. Romney can add this to his current theme that Obama can not be trusted to do what he says. Together Obamacare and the economy shows that Obama can not handle the job, will not be honest with the American people, and incapable of acknowledging responsibility for the decline in the economy.

  12. ilfigo

    In essence, Romney should state: “Mr. President if you still believe that Obamacare is NOT a tax, then this law is not constitutional on other grounds as held by the SCOTUS.” (Noting: Deval patrick this morning stated that it is still not a tax!)

  13. Keith Price

    12. That’s a very interesting angle.

  14. Will

    The constitution allows a lot of things that are not desireable. But, in a democracy, we can vote against tyrannical leaders. The suggestion that Roberts’ decision allows the overnment to force you to buy a Chevy Volt is nonsensical. The Roberts decision changes absolutely nothing with regards to the overnments ability to incentivize conduct. What do you think the effect of a tax credit for the purchase of hgh-efficiency appliances is?

  15. Will

    How on earth is this activism? He made absolutely no change in the law.

  16. Will

    Correction, he did change the law. He said the commerce clause did not allow a mandate. He didnt change the law with regard to Congresses power under the tax and spend clause. There is no way you can read his decision and call it activist. Even the dissent would agree that if the law is a tax, it is constitutional. Their disagreemen is onhe decision that it is a tax.

  17. Will

    6 – Not a funny way of looking at it at all. In fact, that is how most economists look at tax credits. Subsidies are merely taxes on inactivity.

  18. Will

    8 – For the record, I didnt say it was a political gift (though it might turn out that way). I just said it was a well reasoned, conservative decision that wasn’t motivated by politics.

  19. Will

    I would really like to hear people explain how the constitution limits he power of Congress to tax, beyond taxes that are designed to evade other protections of the constitution.

  20. Will

    The only thing liberal about the Roberts opinion was his characterization of the law as a tax, which he clearly stated was motivated by the very conservative principle that the Court should do everything in its power to not strike down a statute passed by Congress and signed by the credit.

    It was a very conservative opinion, which is sadly lost on people who only apcar about the outcome.

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  22. peyzaj

    You could definitely see your enthusiasm in the paintings you write. The arena hopes for even more passionate writers such as you who aren’t afraid to say how they believe. All the time go after your heart.

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