Thursday, June 28, 2012

Roberts Stands Alone

First and foremost, from this point on nobody should ever refer to the ACA as "Obamacare".  It shall be called "Obamatax", or some permutation thereof so long as it includes "Obama" and "tax".

In evaluating the oral transcripts from March, bloggers (myself included) and many other legal experts made an oversight in assuming that the court would find the mandate as a breech of the Commerce Clause, and thus the mandate would be struck down.  These were the most detailed of arguments covering the minutiae of "uniqueness", "activity" vs. "nonactivity" and so forth.  Stuff worth arguing about.  Separate was the issue of tax vs. penalty.

We were right.  And we were very, very wrong.

The Supreme Court today upheld the mandate in Obamatax to be constitutional on the grounds of it being within the taxing powers of the federal government.  As expected, the court found the mandate outside of Congress' power with respect to the Commerce Clause.  Onto the highlights (warning: I might use profanity):

The Bad-Upheld as a Tax?

p3 of Roberts' Summary:
"In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,"

Analysis: Roberts is saying that he is empowered to find a reason something is constitutional.  Note the word "reasonable" is used.  Blech.  I work in IP law (patents), and "reasonable" is incredibly subjective. I don't agree with Roberts' "reasonable" standard.

p4. of Roberts' Summary:
"In answering that constitutional question, this Court follows a functional approach,"[d]isregarding the designation of the exaction, and viewing its substance and application.""

Translation: Roberts purposely disregarded the word "penalty" and looked for a "tax" definition.

p4. of Roberts' Summary:
"Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37."

Analysis: even though it's called a penalty, it can also be called a tax.

p12. of Roberts' Opinion:
"Congress, however, chose to describe the "[s]hared responsibility payment" imposed on those who forgo health insurance not as a "tax," but as a"penalty." §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to "any tax" would apply to a "penalty.  Congress’s decision to label this exaction a "penalty"rather than a "tax" is significant because the Affordable Care Act describes many other exactions it creates as "taxes." See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983)."

Analysis:...the f%^k is he talking about?  Congress and Napoleon himself explicitly promised the mandate was a penalty, and not a tax.  It was passed deliberately as a penalty.  The word "tax" was intentionally not used.  Then why is he calling this a "tax"?  He is arguing the intent, and deliberately changing the definition of a penalty.  It's at this point I noticed that I was sweating.

p13. of Roberts' Opinion:
"Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act."

Analysis: Congress is allowed doublespeak.  Got it. 

But it's still a penalty, Roberts, because that's the way it was written.  And what's wrong with forcing Congress to live up to the standard of using a word's actual definition?

Summary of Roberts' Opinion: the mandate fails "uniqueness", it's necessary but not proper, and the federal government cannot create activity by compelling individuals to enter into commerce against their will.  Furthermore, if the mandate were to stand under the Commerce Clause the power retained by Congress would be virtually limitless, so the line must be drawn here.

But call it a tax and everything's cool.

Other Notes:
  • Double Standard Industries pays Dean over at Beers With Demo 375 (100 investment + 275 payout) internet dollars.  Congratulations.
  • Hey I correctly interpreted Kennedy's vote (who cares).
  • Ginsberg, like all liberal judges argues that the mandate is necessary so it's proper in her separate concurring opinion.  Her opinion is garbage based on the line that the mandate "solves an economic and social problem" (see Ginsber's opinion at p.12).  Bullshit, it solves an economic problem.
  • Another promise made by Napoleon regarding of Obamatax has been broken.
  • Know who loves having their taxes raised?  Young adults, small businesses, the middle class.  And I hope they reward Napoleon by voting in November.
  • Ann Althouse's opinion of the verdict "President Romney".
  • Snark aside, this is a huge loss.  The opportunity to reign in federal power was there, and now it's gone.
  • Roberts drew a clear line for Congressional power under the Commerce Clause.  Then gave them a loophole to get around it.
  • Where do we go from here?  Well, I'd say the Tea Party hornet nest was just stirred.  My hope is that others wake up and realize what exactly just happened.
I'm spent.  Let down.  Angry. 

I think I'll take the dog for a walk, take a shower, and cook a steak.  And I leave you all with the closing dissent from Kennedy et. al:
The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
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 con
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.


K T Cat said...

Yeah, it's a bummer. I love Ginsberg suggesting that the court can rule a certain way because something is "needed". Dictatorship much?

I said this over at Dean's, but I'll repeat it here. This is a drop of water to a drowning man. This just makes our path out of the mess we're in - massive debt, blighted cities, wrecked families - a few miles longer.

Time to stop whining and put on your walking shoes, my friend.

drozz said...

yeah, that's about right!

(hard to walk with wine hangover)