What’s Wrong with the World

What happens to the argument that conservatives must continue to vote in national elections if for no other reason than to get good judges on the Supreme Court?

Andrew, I thought of that. I thought of that. Roberts, of all people.

It's good to see that Roberts is not just a Republican Party flunky and judicial activist like Scalia. Roberts's sympathies are obviously conservative, but he overrode his personal inclinations to go with the law. Kudos to him!

Bad news, but look at the bright side. The court has stated fairly directly that the mandate element of the act is, in fact, a tax (the commerce clause argument was rejected). Conservatives can now oppose it politically with that additional ammo, and this should greatly energize the Romney campaign. They should be working on the commercials already.

Apparently Nice Marmot is under the impression that America is still a constitutional republic of limited powers rather than a leftist state of unlimited powers. How should conservatives relate themselves to a leftist state of unlimited powers?

Goodness Gracious Lydia! I went over to Lawrence Auster's blog and now I'm more despondent about the future of this country than ever before. Of course, our faith, trust, and hope is in Christ, and not in princes, but still we both have children, and we don't raise them in an island.

This is not good.

BTW, this snippet of Lawrence Auster's will fuel the liberal leftist's unhinged paranoia about conservatives:

"Therefore the only meaningful form that conservatism can now take is counterrevolution, which means: opposition to the lawless regime that America now is, and the declared intent to overthrow it. Any “conservatism” short of counterrevolution is simply subscription to, loyalty to, patriotism to, obedience to, a leftist unlimited state."

Don't get me wrong -- I'm a fan of neither Romney nor the GOP. BUT...a possible solution here is to boot Obama in November so Romney can repeal this mess. I'm under no illusions as to the overall direction the nation is going. But in this instance the Left may be celebrating a little early, and this decision may come back to bite them in the arse in four months.

NM, that of course is the political hope. But even if that happened, the power of the court and of court opinions rests in the precedent, which (I predict) will never be overturned, and which ends a republic of limited powers effectively as of this date. If this is a tax, anything is. Even if Obamacare is repealed (God speed the day) the meta-level precedent remains.

If the conservative movement in America has any principle left (sic), then serious discussion of a federal tax strike needs to begin regardless of whether Romney wins in November.

Now that is over, yet the form of the country remains. This is an historic day, and a tragic one.

Between this and Kelo, it should be clear that our constitutional system lacks an effective mechanism to control the Supreme Court. I think the time has come to repeal the US Constitution and dust off the Articles of Confederation with a few amendments. Its time for our generations to actually do what the Constitutional Convention was supposed to do all along.

We should rather end this communist mockery and dust off Basilikon Doron, finally returning to sensible, God-ordained government.

Agreed, Lydia. But I think that we were (unfortunately) moving inevitably in that direction anyway. I was of course hoping that it would have happened later than sooner, but alas, such was not the case.

Still, even though the precedent is there as of today, there may enough will remaining among the general population at least politically to resist the tax implications of the precedent. If there's no political will to implement the precedent, then practically speaking it's moot. Thus conservative resistance to the Leviathan must redoubled from here on in.

This news is rather jarring and so I went back to Lawrence Auster's blog to see what he wrote about John Roberts back in 2005:

"Only a judge who has no principles, and who is ready to drift wherever fashion or expediency takes him, would say that he confronts every case with an “open” mind. It’s a statement that could be made only by a liberal relativist."

Earlier I found out that Ann Coulter said essentially the same thing about Chief Justice Roberts in her column:

Souter in Roberts' Clothing.

I am/was disappointed in Chief Justice Roberts' decision/betrayal, but now I see that I (and many other conservatives) shouldn't have been.

NM, I doubt it matters if we get Romney elected. At best he'll fiddle at the edges and not much else. Plus there is now the precedent that the government can tax you for not buying a product. This is an unmitigated disaster. Those who are talking up how this will energize the Right are missing a couple of points.

- Romney couldn't give a semi-forceful response to Obama's illegal amnesty. What makes anyone think he'll do so with Obamacare?

- The Republicans in the house had the chance to start defunding this travesty and didn't do it.

I'm going to predict that Romney and the Repulicans will continue to make moves that dampen any energy that comes out of this decision.

Chris, I understand. It's not called "the stupid party" for nothing. Still, there is the indie and Tea Party influence, which counts for something. We'll have a better idea after some time goes by to tell whether any energizing effect is substantive or not.

I called it. I thought it had a chance of being struck down prior to this week, but once the Arizona immigration law decision came in the writing was on the wall. Trusting the Supreme Court to defend your liberty is a fool's errand.

Romney? Goodness, he couldn't care less. Neither could the rest of the Republicans, who now that Obamacare is "constitutional" will promptly drop all opposition. You get what you pay for, I guess.

No one will do anything. People will complain and then once it comes to doing anything more than complaining will decide that it is bearable after all. Hey, the Roman Empire got all the way to Julius Caesar before anyone thought to do anything about it...and they failed.

America has been on the wrong track since the New Deal. The Affordable Care Act accelerates Americas demise. If the U. S. Supreme Court had overturned the law, conservatives might have decided the tide had turned in their favor.
I wonder if this decision will influence conservatives in battle ground states who had been inclined to sit out the election to plug their nose and vote for Romney?

"America has been on the wrong track since the New Deal."

Actually I think it's since the Civil War but why quibble over details. In any case, Romney's speech immediately after the decision wasn't bad. We'll see if the GOP sticks with it. Only time will tell.

"I wonder if this decision will influence conservatives in battle ground states who had been inclined to sit out the election to plug their nose and vote for Romney?"

That's what I was implying above.

Still, there is the indie and Tea Party influence, which counts for something.

Which had a lot of momentum after the 2010 sweeps and didn't accomplish much. I'm not confident a Romney win will change that.

I wonder if this decision will influence conservatives in battle ground states who had been inclined to sit out the election to plug their nose and vote for Romney?

Unless Romney gets it together and comes out swinging, I think it will have the opposite effect. If Romney looks like Liberal Lite (or Revelation 3:16), then a lot of fence sitters will either vote third party or stay home. Romney isn't Obama, but if he is only offering a slower path to the same destination, a lot of people will decide to just let Obama and the Democrats own the disaster.

Romney IS Liberal Lite -- the entire GOP is. But Liberal Lite is better than Socialist/Cultural Marxist Lite, at least in the short run.

In the middle of the Catholic bishops' 'Fortnight for Freedom', the USCCB pauses to note that, while it has long favored something very much like Obamacare, it still has a modest quibble or two with Obamacare in its current form. Now, back to our 'We will not comply' rhetoric. Yay for bishops with spines. Or is that 'bishops wilt supine'?

In November I will hold my nose and vote for Mr Romneycare and Marco "Senator Sugar" Rubio or whomever the veep slot goes to. And if the GOP cannot spine up and start hacking away at the socialist state, wide-open borders, the ordinary-Americans-are-the-enemy TSA, and the death-by-Kelo of property rights, then I will not support the party again.

In truth, it seems likelier that a hundred thousand armed Americans will rise up, invade Cuba, topple the Castros, and establish a republic of the U.S. Constitution-in-exile, than that the Republicans will do anything other than tinker around the edges with the words, or the rate at which the central government's growth accelerates. (Taking over Wyoming is no longer enough. We do not need our own state; we need our own republic.)

"if the GOP cannot spine up... then I will not support the party again."

I had already come to this conclusion and was going to sit this one out until B.O. came out so strong for homosexual marriage. I've already got a "White-Pinkman 2012" bumper sticker on my car and I don't intend to cover it with a Romney sticker at this point.

To the importance of process (and therefore of principle), I'm repelled by the mindlessly partisan reaction of the left to this decision. They run around beating their chests because their side supposedly won and because they get to rub it in the faces of people they despise, and not once do they pause to consider the implications. They blithely assume that no future government will require anything of them, under pain of a "tax," that they abhor or that they believe to be none of its business. To choose one not-so-random example, are they even aware of the massive impact on public health (and therefore public health spending) that their sexual behavior entails? Or even, to bring it closer on point here, their lack of sexual behavior? And will they accept that compulsion in this sphere, while unconstitutional in themselves, can still remain law so long as the compulsion takes the form of a financial penalty? Again, it's called a principle. Look it up.

I really don't understand this kind of stupidity.

Be careful, Sage, you're starting to sound like Antonin Scalia. He goes around saying stuff like that all the time. :-) (Naturally, I actually mean that as a compliment.)

"At this very moment the leftist architects of Obamacare are gloating over the massive power that has been left in their hands ..."

I honestly don't think the ACA is a leftist plan. It is pretty much the same plan that The Heritage Foundation, an ultra-conservative think tank, came up with. In fact, the foundation supported the individual mandate as far back as 1989. The ACA is also modeled on Romneycare, which Romney himself introduced to Massachusetts. His plan only differed from "Obamacare" in that it covered abortion costs. Romney has often spoken in favor of the individual mandate. In fact, in a debate in Las Vegas last November, Romney himself said, "We got the idea of an individual mandate…from [Newt Gingrich], and [Newt] got it from the Heritage Foundation.”

Leftist architects would prefer a universal single payer system and feel the ACA is better than nothing, but very imperfect. The sad thing is that under the ACA it is estimated that there will still be 23 million uninsured left in 2019.

I just read something that's leaving me a bit hopeful, and wanted to share it with the rest of the readers here:

The Roberts Opinion: It's Not All Bad.

Yeah, I've heard that one. No, no, no, no, and again no.

Roberts takes power away from the federal government with one hand and gives it back with the other. Massive power. Huge power. As far as I can see, and as Sage's comment quoted in the main post indicates, there is now nothing to stop the federal government from mandating anything it pleases (unless such a mandate can be criticized on some completely _independent_ constitutional grounds such as freedom of religion) and then punishing the refusal to undertake that action by a fine, even a large fine, with punishment if the fine is not paid, calling the fine a "tax," and moving ahead with such a mandate. This is the end of the federal government of limited powers. There is no silver lining here. None. Even a political silver lining (if Obamacare were to be repealed) cannot take away the sweeping power that has just been granted to the federal government and the removal of any meaningful limitations on that power. It does not make it better that he chose not to do it under the commerce clause. If anything, it makes it worse, and that for two reasons: First, he has now given the federal government a second string to its bow. If it cannot get what it wants via the commerce clause, it now has another route. Second, he has set a meta-precedent of substantially rewriting a law in order to obtain a desired result. The government insisted that this penalty was not a tax. Roberts, to make Obamacare "constitutional," decided that it really is a tax.

It is the veriest sophistry to say that the government didn't make it "criminal" not to have healthcare but merely placed a "tax" penalty on it.

Tell that to us when the federal government places a similar "tax" on, I dunno, homeschooling, throughout the country. "Oh, we didn't criminalize homeschooling. We just told the IRS to collect a penalty, er, a tax of $30,000 per year from every home schooling family."

Apply ad lib. We conservatives don't dislike this outcome just because we're little kids who dislike the policy. We're opposed to this outcome _precisely_ because of the constitutional precedent set and because of what this means in principle for our republic. To quote Thomas Crown of Redstate, "The result is awful. The process is worse."

http://www.redstate.com/thomas/2012/06/28/i-am-down-on-john-roberts/

To choose one not-so-random example, are they even aware of the massive impact on public health (and therefore public health spending) that their sexual behavior entails? Or even, to bring it closer on point here, their lack of sexual behavior? And will they accept that compulsion in this sphere, while unconstitutional in themselves, can still remain law so long as the compulsion takes the form of a financial penalty?

Presumably they would argue that the 9th amendment grants the right to privacy, thereby protecting private sexual behavior from state interference, and supersedes the tax power. It would be much the same as if you wanted to put a tax on not belonging to a Mosque--1st amendment protections preempt the exercise of the tax power in that case.

The de-facto result is that the constitution grants unlimited power to the government, with amendments then limiting the scope in specific areas.

Truth, I find that article to be whistling past the graveyard.

Moreover, he created a new precedent in Commerce Clause jurisprudence that limits its scope significantly, by accepting the distinction between activity and inactivity.

Statements like this make me wonder what she has been smoking. Up until Obamacare, no one really thought you could mandate activity in a market. It's a ruling that affirms what most people considered the dividing line before this mess.

Congress is now restricted in its ability to use this very broad power, in that it cannot compel individuals to participate in the market.

I laughed at this one because this was under the positive side of things. How are you not compelling someone to participate in a market when you are taxing them if they don't have insurance? Is it because the penalty can't be more than the insurance that makes it okay? Officer I didn't compel the owner of the house to turn over his money because I didn't point the gun at him. I just pointed my gun at the wife and encouraged him to turn his money over.

The author is right that it offers political opportunities for Romney and the GOP. However, as discussed earlier, they are unlikely to take advantage of them.

Meggie, don't worry, this plan will bankrupt everyone and get us to single payer. That is the plan.

Next up: a tax on not providing contraceptives to your teenage children since they're going to be having sex anyway, a tax on not sending your children to public schools since they're not getting socialized (in every sense of the word,) a tax on not procuring an abortion if you fall below a certain income level because then you and your child will be a burden on the public coffers...

I will wager ten American dollars that Obamacare will be largely untouched by 2024. The Republicans talk a good game but they won't do anything about it unless they get a fresh crop of budding young Congresscritters willing to commit career suicide.

I agree with Auster. There's really no point in describing oneself as a conservative anymore. I'm embracing my inner reactionary counterrevolutionary.

"I really don't understand this kind of stupidity."

Remember, Sage, that lefties never have to consider the implications of their policies -- there's no one out there to hold them to it. And anyways, with the Left it's never about the individual policy issue. It's the overarching vision that's important. It doesn't matter how we get "there," so long as we get there. This frees them from considering their own failed policies as actual failures; they're merely roadbumps on the way to the eschaton.

Officer I didn't compel the owner of the house to turn over his money because I didn't point the gun at him. I just pointed my gun at the wife and encouraged him to turn his money over.

Bingo.

What's insulting about that article attempting to exonerate Roberts is that it implies that conservatives should be happy to trade their birthright of limited federal powers for a mess of political pottage. *Even if* this energized the voters, "gave Romney something to say," and Obamacare were overturned by Congress, that couldn't possibly compensate for the principle that has been sacrificed. We would have *precisely nothing* to thank Roberts for even if he actually did plan that outcome and it came about. The author writes chiding conservatives for being allegedly too wedded to political outcomes and then offers us comfort, and an intended exoneration of Roberts, that is...wedded to her own predictions about political outcomes! My response: Thanks for nothing. I'll continue to mourn the stake in the heart of enumerated powers.

Lydia, I found the title of this post at NRO particularly offensive:

Romney’s Chief Strategist: Today a ‘Big Shot of Energy’

Well it's nice to know Romney's political fortunes have improved. We can take great comfort in the fact that there is now a slightly better chance of a grinning liberal eel like Romney being head of government for four years. That that government is now officially lawless, well, that's the price we pay.

As you said: No thanks.

I've already got my "Don't Blame Me - I Voted For RON PAUL" T-shirt on order!!

Ron Paul on the decision:

"I strongly disagree with today’s decision by the Supreme Court, but I am not surprised. The Court has a dismal record when it comes to protecting liberty against unconstitutional excesses by Congress.
"Today we should remember that virtually everything government does is a 'mandate.' The issue is not whether Congress can compel commerce by forcing you to buy insurance, or simply compel you to pay a tax if you don’t. The issue is that this compulsion implies the use of government force against those who refuse. The fundamental hallmark of a free society should be the rejection of force. In a free society, therefore, individuals could opt out of “Obamacare” without paying a government tribute.
"Those of us in Congress who believe in individual liberty must work tirelessly to repeal this national health care law and reduce federal involvement in healthcare generally. Obamacare can only increase third party interference in the doctor-patient relationship, increase costs, and reduce the quality of care. Only free market medicine can restore the critical independence of doctors, reduce costs through real competition and price sensitivity, and eliminate enormous paperwork burdens. Americans will opt out of Obamacare with or without Congress, but we can seize the opportunity today by crafting the legal framework to allow them to do so."

Why didn't more people vote for this guy?

"I will wager ten American dollars that Obamacare will be largely untouched by 2024."

Beefy Levinson! I'll take that bet! Would you like to wager more!

P.S. Lydia, you're awfully cheery and optimistic today! You might be Eeyore's best friend!

The de-facto result is that the constitution grants unlimited power to the government, with amendments then limiting the scope in specific areas.

Well, at least one person here has been paying attention to actual policy and its legal justification. I’ll be honest though, I’m upset that Kennedy sided with the reactionaries and voted to overturn the whole thing. Doing a complete overturn of major legislation impeded by filibuster at every step would have been truly “activist”, and Roberts realized this so he preserved the Court’s fading image of impartiality and restraint by salvaging the mandate and restricting the Medicaid provision. If the other conservatives hadn’t gone all in and limited their objections to the mandate alone, there might well have been a very different decision.

Lydia,

NM, that of course is the political hope. But even if that happened, the power of the court and of court opinions rests in the precedent, which (I predict) will never be overturned, and which ends a republic of limited powers effectively as of this date. If this is a tax, anything is. Even if Obamacare is repealed (God speed the day) the meta-level precedent remains.

Though I probably speak heresy here - speaking like a liberal, actually - isn't a proper response to today's ruling "precedent be damned"? I mean, that's the games liberals play by, and apparently to great success. At this point, shouldn't the goal be to elect conservatives to the court who will stomp all over precedent if it doesn't suit them?

Crude, that's not in itself talking like a liberal. A conservative believes that the Constitution has a real meaning, that it isn't just manufactured by what the court says, and therefore *of course* bad precedents, lying precedents, should be overturned. That is why we always hope for an overturn of Roe v. Wade, for example. Not only was it heinous policy, it was also a lie about the meaning of the Constitution, so it certainly can be rightly overturned by justices with actual respect for the Constitution.

However, bad precedents almost never _are_ overturned, and I don't believe this one will be. That's my prediction; of course I could be wrong.

One thing to remember is that we do not "elect" members of the Supreme Court. We elect presidents who appoint members of the Supreme Court. Though one may indeed be mistaken or disappointed in someone one elects directly, if the justices of the court were elected, and not appointed for life, there could be many opportunities to get rid of them and replace them. It's much harder when they are appointed for life, especially since Republican Presidents make it a point of honor not to ask any "litmus test" questions, and the Democrats in the Senate make a point of playing hardball on SCOTUS confirmations and won't confirm many good federal judges. We have tried for decades to elect Republican Presidents who appoint good SCOTUS justices. Unfortunately, one of the results of that is...Chief Justice Roberts. Who wrote this precedent that we are now wishing could be overturned. Let's just call it a less-than-reliable process for getting bad precedents overturned and no new horrible precedents set.

Lydia,

However, bad precedents almost never _are_ overturned, and I don't believe this one will be. That's my prediction; of course I could be wrong.

What about not overturning them, but reinterpreting them in ways that fly in the face of previous interpretations? Or maybe you mean that as well.

I understand what you mean of course about the particular issues with justices, their being life-long appointments, etc. However, you focus on something I was getting to. You talk about the 'point of honor'. Well, isn't that exactly the sort of point we should be getting rid of? Of course, I imagine the 'point of honor' is actually a political calculation.

Pardon my meandering thoughts here, I just am trying to figure out some way, any way, to politically fight this sort of thing. And one thing that always sticks out to me is that "liberals" seem willing to go to lengths that "conservatives" often refuse to on points of honor or respect or such.

Well, at least one person here has been paying attention to actual policy and its legal justification.

And that was not the way the Constitution was set up. It was set up to define where the Federal gov't had power, not where citizens were protected from Leviathan.

I’ll be honest though, I’m upset that Kennedy sided with the reactionaries and voted to overturn the whole thing. Doing a complete overturn of major legislation impeded by filibuster at every step would have been truly “activist”, and Roberts realized this so he preserved the Court’s fading image of impartiality and restraint by salvaging the mandate and restricting the Medicaid provision.

It's okay to overturn minor legislation though? Where is that in the Constitution?

So, it's activist to overturn the whole law (which didn't have a severability clause) but it's not activist to rewrite the law to make the mandate fine into a tax?

Also, law should be determined based on how the court looks and not based on the law?

If the other conservatives hadn’t gone all in and limited their objections to the mandate alone, there might well have been a very different decision.

Seriously? You seem to have a funny idea of how a court should work. In your world it seems to be some sort of popularity contest where ticking off the cool kids (Leftists) is forbidden.

I can only say, Step2, that we have nothing in common. Your entire post reeks of the blind lust for power. Nothing must stand in the way of that quest.

Lydia, you're awfully cheery and optimistic today! You might be Eeyore's best friend!

TUAD, I'm supposed to be cheery and optimistic on the day the republic is finally killed for good? I'm just wondering what the heck I'm going to teach my kids in home schooling civics. "Now, children, the wonderful thing about the United States of America is that we are set up as a government of laws, not of men. Oh, wait. Okay, try again: One really great thing about America is the brilliant design that our Founders gave it when they set up a system of checks and balances between the states and the federal government. No, scrap that. Um, one of the great things about America is that our founders recognized that power corrupts, and absolute power corrupts absolutely, so they set up limitations on the power of the federal government so that...Oh. Well, kids, let's move on to science lesson now."

Besides, you haven't been around here long. You'll eventually realize that I'm nearly _always_ Eeyore's twin brother.

Well, isn't that exactly the sort of point we should be getting rid of? Of course, I imagine the 'point of honor' is actually a political calculation.

Oh, absolutely, Crude. If I'd had my druthers, Ronald Reagan would have appointed Phyllis Schlafly to the Supreme Court on a recess appointment right after Bork was Borked. Or he could have appointed Bork that time and Schlafly at the next opportunity. I've been inventing ways for the Republicans to play hardball in my mind for the past twenty-five years, believe me. Or remember all the talk about the "nuclear option" and how terrible it would be if the Republicans used it? Gah! In the big game of chicken on Capitol Hill, our boys always blink. Always, always, even the best of them. While the other guys play for keeps.

If anything, our will to hang tough is lessening, not growing. The time to do these things would have been in the era of Reagan or Bush, Sr. The political will hadn't been sapped as much then and maybe we would have had a chance.

I just don't think it's going to happen now. But of course, as long as what we're talking about is neither immoral nor illegal, I'm all for throwing over false "points of honor."

Lydia,

Or remember all the talk about the "nuclear option" and how terrible it would be if the Republicans used it? Gah! In the big game of chicken on Capitol Hill, our boys always blink. Always, always, even the best of them. While the other guys play for keeps.

I agree on all points, of course.

I just don't think it's going to happen now. But of course, as long as what we're talking about is neither immoral nor illegal, I'm all for throwing over false "points of honor."

I suppose what I'm asking is, "Now what?" I mean, in terms of action and strategy and communication. What can be done when it comes to making progress as conservatives and Christians in a modern climate? That's all. Even if the environment (political and/or cultural) is unfavorable, it seems to me there's always got to be some plan of action.

Crude, off-hand, I'm leaning towards CRASH THE SYSTEM. Make the gov't follow all of its rules and regulations. Look for mistakes and file legitimate complaints as often as possible. Take advantage of every opportunity to use services to their maximum extent. Find legal loopholes and ruthlessly exploit them. Get onto any gov't volunteer committees and gov't jobs and bring things to a grinding halt by following the rules. Try to add new rules and regulations. Never do anything illegal. That's the way I'm thinking at the moment.

Chris,

Crude, off-hand, I'm leaning towards CRASH THE SYSTEM.

I've thought about similar, on another issue. Regarding gay marriage, I more and more am tempted to think that, in any state where a repeal or ban of gay just isn't viable, the move should be to expand marriage on the same grounds that justified gay marriage. Demand polygamy be made legal. Demand the right for two heterosexual men to marry each other and receive benefits. Etc.

But on this subject, I wonder if you are right. Exploit, and exploit shamelessly, but legally. Be a nuisance.

Another way of going about this question would be to say... "liberals" are extremely adept at corrupting things. Culture, organizations, etc. I wonder if there's a way for conservatives to corrupt organizations in the same way, with the same effectiveness.

It was set up to define where the Federal gov't had power, not where citizens were protected from Leviathan.

I know that, but present reality trumps history. One of the little ironies of rebelling from the British empire is that we became one ourselves.

So, it's activist to overturn the whole law (which didn't have a severability clause) but it's not activist to rewrite the law to make the mandate fine into a tax?

The reasons given for overturning were that two specific aspects of it were unconstitutional. The mandate, which could have been overturned separately, and the Medicaid penalty, which was in effect overturned separately. So yes, those two questions did not justify overturning the entirety of the law. While I do think it was activist to rewrite the fine into a tax, it was comparatively far less activist than throwing out the entire thing, not to mention that it required ignoring decades of expansive readings of the Commerce Clause simply to create the reason to rewrite it.

Seriously? You seem to have a funny idea of how a court should work.

You seem to think SCOTUS is correct only when it affirms Tea Party talking points. Unfortunately for you, most benefits in the ACA are very popular, about the only one that isn't is the Medicaid eligibility expansion.

Step2, "benefits" are always the most popular parts of an entitlement program because they're, you know, the benefits . Name me a single entitlement program with unpopular benefits. But unfortunately for you--and for everybody else--the ACA isn't comprised of 5,000 pages of byzantine "benefits." Off-point, mocking remarks like that are the reason I disagree with the site moderators and think you're basically a troll.

Moreover, you're smart enough to realize how silly an argument it is to say that the measure of a judge's activism is not the process by which he arrives at his decision, but rather the size and complexity of the statute he overturns. Literally re-writing the law and making up absurd, extra-legal arguments out of whole cloth to spare an unconstitutional law isn't "less activist" than overturning the entire thing by any sensible definition of "activism." The left's capture of that word--which they have absurdly transformed into something like "striking lots of stuff down," rather than its actual meaning, which is something like "making up the law as you go, text be damned"--has been a most profound rhetorical success. That doesn't mean it isn't slimy, though.

You seem to think SCOTUS is correct only when it affirms Tea Party talking points.

Step2, that, to Sage, is hilarious. Unintentionally, of course. But hilarious.

Sage says,

Literally re-writing the law and making up absurd, extra-legal arguments out of whole cloth to spare an unconstitutional law isn't "less activist" than overturning the entire thing by any sensible definition of "activism." The left's capture of that word--which they have absurdly transformed into something like "striking lots of stuff down," rather than its actual meaning, which is something like "making up the law as you go, text be damned"--has been a most profound rhetorical success. That doesn't mean it isn't slimy, though.

How many cheers can I give for this? Exactly. Precisely. Roberts decided to pretend not to understand this. Which was...unprincipled of him. To put it kindly.

I don't know whether I agree with Roberts' opinion or not. I've only read a summary, anyway. What exactly is the objection to his opinion? Is it that taxes of this sort (we agree it's a tax?) are not covered by the "general welfare" clause of the Constitution, because the founders certainly never meant "general welfare" to include something like this?

I don't understand the apocalyptic talk, anyway. This seems like far less of a blow to the (lower-case "c") constitution than the New Deal was. If this law is unconstitutional, then so are Medicare and Medicaid, I think. So any ruling that does not strike down Medicare and Medicaid along with this law would be a betrayal of the Constitution, by this reasoning.

If it were up to me, I'd repeal Obamacare and gradually roll back Medicare and Medicaid as well. But it's not obvious to me whether they are or aren't constitutional.

Aaron, if you don't understand what all the fuss is about, then it's because you're simply ignoring the substance of what we've written. With respect to taxes "of this sort," we don't actually know what kind of tax this is supposed to be because it doesn't look, walk, or talk like any tax that has ever passed constitutional scrutiny before, and Roberts didn't actually bother to say what kind of tax he thinks it's supposed to be. That's part of the reason his decision is so bizarre, and it's evidence that his switch on the matter was a poorly thought-out, last-minute one. It's just not the case that Congress has ever been granted a completely open-ended writ to punish any action or inaction with a punitive tax, even in cases where it possessed no legitimate power of compulsion; Roberts' argument is that the Congress punitively can tax you for something it has no constitutional authority to make you do under any enumerated power. This is not significant to you?

Now, we're supposed to be happy that the ever-magnanimous Ginsburg articulated a limit to this power of punitive taxation, that the people do retain some rights that are specified elsewhere in the Constitution, or those invented by the Court in their wisdom. But this is a complete inversion of our Constitutional structure. (Ginsburg has been at this game of rewriting the Constitution to her liking much longer than Roberts, and she recognizes this even if that foppish non-entity doesn't.) The point of the Bill of Rights is to give powers to the federal government that are limited in scope, being specifically enumerated. This is explicit in the text of the 9th and 10th Amendments, which makes clear that the Founders' purpose was to give the people broad, unspecified rights to govern themselves while giving the government only very specific, narrow, limited powers.

This decision turns all that on its head by 1) eliminating the crucial principle, long supported by previous constitutional jurisprudence and by ordinary common sense, that the government cannot achieve unconstitutional aims via constitutional means, 2) granting a broad-based and unspecified power to tax the people punitively and to exercise general police powers ordinarily reserved to the states thereby, and 3) limiting this power only by setting forth that the government cannot violate specifically-enumerated constitutional rights, or those the Court in its merciful wisdom sees fit to invent. The federal government has never enjoyed such an arbitrary and tyrannical power to tell every American what he must do, on pain of punishing taxation, for the purpose of achieving whatever policy aims it damned well pleases. If you cannot see the qualitative difference between that and, say, the provision of Medicare services to those who want it, then I don't know what to tell you other than to just wait and see.

The final problem here is, of course, procedural. Roberts simply retroactively redefined key provisions in the statute in order to "save" it by making a case that even the government did not stoop to make, a case that no lower court had found remotely worth considering, and by ignoring the briefs that were submitted germane to the very issue of taxation (which he does not cite or refute in any meaningful way). Again, it is an extremely important matter that the Chief Justice is so eager to execute his duties in such a transparently lawless and capricious fashion. Again, if you can't see the implications of that for the whole future of the Roberts Court and therefore of the country, I just don't know what else to tell you.

Aaron suggests:

"If this law is unconstitutional, then so are Medicare and Medicaid, I think."

Medicaid is a different issue. Medicaid is a joint State/Federal program funded by the federal government out to general revenue. You are correct with regard to Medicare, the same logic which makes the Affordable Care Act unconstitutional also would make Medicare unconstitutional. Medicare is a program for which we are taxed with a special tax. The difference is the Affordable Care Act is a punitive tax.

I don't know what a "punitive tax" could mean, juridically. Is it even a juridical concept? If you tax single people more heavily than married people, or childless people more heavily than parents (in order to encourage childbearing or to compensate parents for their external costs), or cigarette smokers more heavily than non-smokers, or renters more heavily than home-owners, then are those punitive taxes on bachelorhood, childlessness, smoking, and house-renting?

Offhand, I don't see the substantive difference here, but I haven't really thought about it. It seems that any tax meant to encourage some behavior is meant to discourage (punish) its opposite. So to answer your question, which I'll rephrase as, "Congress can tax you for renting a house when it has no power to force you to buy one, doesn't that seem significant to you?" - no, it doesn't seem juridically significant to me, regardless of the motivations behind the law. Politically, the individual mandate seems very significant, but not juridically. But I haven't thought about it much.

'"liberals" are extremely adept at corrupting things. Culture, organizations, etc. I wonder if there's a way for conservatives to corrupt organizations in the same way, with the same effectiveness.'

R.V. Young has remarked that in the wake of the Left-liberal ascendancy, to be conservative is to be the new counter-culture. Liberals are inherent subverters; modernity is one long exercise in attempted subversion of the "permanent things." For conservatives to be the new subverters requires us to do things both politically and in our daily lives that the New Jacobins hate, consequences be damned. Seen from the side of the permanent things conservatives are not corruptors; the corruption has already been accomplished. What we are doing is attempting to reverse it, or at least slow it down.

In driving through a trendy "Bohemian" section of my city, on a couple occasions I've seen a bumper sticker that says "Doing my part to p*ss off the Religious Right." I suggest we take a similar tack: "Doing my part to frustrate the loony Left." And not just via bumper stickers.

R.V. Young has remarked that in the wake of the Left-liberal ascendancy, to be conservative is to be the new counter-culture. Liberals are inherent subverters; modernity is one long exercise in attempted subversion of the "permanent things." For conservatives to be the new subverters requires us to do things both politically and in our daily lives that the New Jacobins hate, consequences be damned. Seen from the side of the permanent things conservatives are not corruptors; the corruption has already been accomplished. What we are doing is attempting to reverse it, or at least slow it down.

Well, call it inverse corruption, but it still seems like a 'kind' of corruption.

And, I think there's a possible mistake there. Doing things the New Jacobins hate -- I worry about doing stuff that's a-holish just to be an a-hole. The left's corruption was and is almost always calculated. There has to be a way.

Offhand, I don't see the substantive difference here, but I haven't really thought about it.

Aaron, sorry to be snarky, but we have, and it matters. Stop and think here: You're sitting around, not doing anything, and Congress wants you to, say, eat vegan. So Congress decides to levy a fine on everybody who doesn't buy tofu. But they call it a "tax." It's a tax on breathing-in-America-without-buying-tofu. Yeah, that's new. If you can't see the difference between that and taxes on cigarettes (which should be levied only at the state level anyway, by the way), I don't know what more to say.

But there's more. Congress could now pick any activity not otherwise clearly protected (say, home schooling), and simply punish it directly by crushing fines which must be paid on pain of imprisonment. Say, every home schooler fined $50,000 for the activity. When challenged for constitutional warrant, they just say, "Voila! It's a tax."

Yes, that does put our liberties just a tad more at risk than they were before.

Sage does such an excellent job in pointing a lot of this out in his 6:23 am comment that I haven't much else to add.

Aaron, in rephrasing my question you've also reframed the question. The Congress obviously can tax different activities, like renting versus buying, differently, because those are actions taken by the individual and therefore subject to excise taxation under explicit grant of constitutional authority. But this situation isn't comparable to that at all, for all the same tired reasons that have been talked about for the last two years--and there's more than just a political reason that Democrats have been screaming from the rooftops that this fine is not, in fact, a tax. Your decision not to buy a house, when the government would really rather everybody try to own a home, is now something for which you can be "taxed," and taxed heavily, and taxed retroactively without the Congress ever being accountable for having levied a tax in any of the usual ways (such as writing a bill in the House of Representatives that contains an explicit tax provision).

The most essential point here is that the power of the Congress to levy a tax actually is limited, and Roberts made no attempt whatsoever to define what sort of permissible tax this "mandate-that's-now-a-tax-because-I-said-so" actually is. The Constitution permits several kinds of tax, and this penalty doesn't conform to any of them. You're simply mistaken if you think that the Constitution is indifferent to just how the federal government collects its taxes. A penalty for refusing to comply with an unlawful order simply isn't a tax under any legal definition of the word, which is why the government did not even bother lifting more than half a finger to argue that it was.

Again, the fact that Roberts is literally just making stuff up to reach a conclusion he wants to reach, in spite of the fact that even the government thought they couldn't reach it by the means he so lamely attempts, ought to disturb you on principle. Recall the title of Lydia's post is Procedure Matters. I agree that it matters, and matters profoundly.

"Doing things the New Jacobins hate -- I worry about doing stuff that's a-holish just to be an a-hole."

No, that's not what I mean. I'm talking about substantive things -- homeschooling, voluntary associations, church attendance, classical learning, etc. Anything that is supportive of the "little platoons."

No, that's not what I mean. I'm talking about substantive things -- homeschooling, voluntary associations, church attendance, classical learning, etc. Anything that is supportive of the "little platoons."

Oh, that I agree with all of that wholeheartedly. But, there has to be more. None of that corrupts liberalism, and little directly advances or changes the culture.

For me, my focus is always on the cultural front. Entertainment, media. Video games, shows, cartoons, movies. I really wish there was a clear path there. One advantage is, nowadays, these things can be done with much smaller groups - you don't need a big enterprise to do these things, just a tight group of committed people, for many projects. You don't need NBC, we have the internet. (For now, anyway.)

Something to ponder. I hate thinking about these things and not having a plan of action.

For the record, I think something almost, almost 'corruptive' happened with Komen this year. Notice the sheer hysteria that brought up. There really needs to be more of that. There needs to be conservative versions of what that one schmuck did with the Boy Scouts. Abortion is one front conservatives and Christians are, in my opinion, doing well on. They, accidentally or not, stayed on message in the right way over the years.

Anyway, I'm derailing this thread now, or in danger of doing so. But there must be ways.

"None of that corrupts liberalism, and little directly advances or changes the culture."

Perhaps not directly and not immediately, but what you are doing by the process is forming persons who can do so in the long run. Remember that we didn't get here overnight, and thus it won't be cured overnight.

Sage and Aaron,

Sage's comment this morning (9:43 AM) is one of the most eloquent summaries of the problem with Robert's decision I have read over the past two days -- she really nails it.

I would only add two more points:

1) As Thomas Yeutter points out above, had Obama and the Democrats in Congress designed their health care plan from the get-go to be funded with general income tax revenue (or some other form of constitutionally acceptable taxation, i.e. excise taxation) then there would be no constitutional issue, but there would have been a much bigger political issue and it is unclear it would have become law;

2) Regarding Medicaid and Medicare, even when funded by general income tax revenue, to me it is unclear that the "general welfare" clause gives the federal government such broad constitutional powers to provide U.S. citizens with health care -- I know there is plenty of precedent (probably going back to the New Deal) but I don't think Article 1, Section 8 reads as if the Congress has the power to enact laws providing citizens with whatever they want. We've talked about this issue before at W4 but in short, why enumerate specific powers after the "general welfare" clause if all the Framers meant to do was say something like "Congress can pass a law enabling the federal government to do whatever it wants". This doesn't make any sense to me and it doesn't give us a federal government of limited enumerated powers.

Perhaps not directly and not immediately, but what you are doing by the process is forming persons who can do so in the long run. Remember that we didn't get here overnight, and thus it won't be cured overnight.

Those things are incredibly important. But notice that it's all focused on, at best, maintaining. Let's say a generation passes and you have a bunch of people homeschooled and homeschooled well, attending church and voluntary associations, with a classical education.

What shall they do then? The reply can't be, "Well, it will sort itself out, just give people the fundamentals and they'll know what to do." Those things are important, they are a start, but there has to be a next step. And those steps are going to involve thinking, "How do I get that moderate to be more conservative?" or "How do I get that liberal to be moderate?" or even "How do I defang this liberal group and make it not a threat or even an ally?"

Because that's how liberals think, and it's worked.

Nice Marmot: "Perhaps not directly and not immediately, but what you are doing by the process is forming persons who can do so in the long run. Remember that we didn't get here overnight, and thus it won't be cured overnight."

I can never tell for certain when the Slippery Slope is a fallacy and when it's a truthful warning.

Anyways, after being doused by the thunder showers of the doom-and-gloomers it's a nice, temporary relief to wander over to the sweet lemonade stands of the silver-liners to parch my thirst in preparation for the raised pinky Tea Party insurrection. Tea Partiers are not Occupiers! Civil disobedience with class and dignity, thank you very much.

This buys time for my bomb-shelter building brethren who are busy buying gold, guns, and butter, and when I knock politely on the door to let me in, I'll be brusquely turned away for it will then be "Lord of the Flies" every little boy for himself. And along the way I shall prepare for my tiny nuclear family to continually praise and confess Christ in preparation to be bravely swept away in the first wave as we help our neighbors in need.

God is sovereign.

Sage is a "she"? Well, knock me down with a feather! I would have sworn that Sage is a man.

Lydia (and Sage),

I don't know Sage's gender -- for some reason I just assumed Sage was a woman, but I could be totally and complete off base (and if I am I apologize).

Meanwhile, one of my favorite constitutional scholars nails Roberts decision in the NYT of all places:

http://www.nytimes.com/2012/06/29/opinion/a-confused-opinion.html?_r=1&ref=todayspaper

Sage said:
"Your decision not to buy a house, when the government would really rather everybody try to own a home, is now something for which you can be "taxed," and taxed heavily"

I hate to break it to you, Sage, but this is nothing new. We have been taxed for not buying a house (or rather not having a mortgage) for decades. Sure, politicians prefer to label it a mortgage interest DEDUCTION. But the reality is that if you don't have a mortgage you pay more tax. For all intents and purposes it's a tax on not buying having a mortgage.

Similarly, we are already taxed for not having children - although politicians prefer to use the term Child CREDIT, as if the government was doing US a favor by letting us keep more of our own money.

Sage also said:
"A penalty for refusing to comply with an unlawful order simply isn't a tax under any legal definition of the word"

Rhetoric aside, what it comes down to is this: Congress revised the IRS code so that, come April 15th, you have to send more money to the IRS if you don't buy health insurance. Just like you already have to send more money to the IRS if you don't have children, or a mortgage, or whatever of the countless other deductions, credits, exemptions or penalties you care to choose. Politicians can use whatever label they like to sell it to the public and each other but underneath it all - provided you believe that it's your money in the first place, and not the government's - they are all a tax on not having X.

So yes, Congress can certainly pass laws "requiring" Americans to buy (if not eat) broccoli - provided the only penalty is that you don't get a tax deduction/credit/whatever for failure to do so. This is not news. Congress does this All The Time.

Well, no, G.I., if this works, there is nothing *in principle* to prevent Congress from taxing/fining people for not doing something (or, for that matter, for doing something) even if they wouldn't otherwise owe any tax. They magnanimously "forgive" destitute people from paying this penalty, er, tax, but there's nothing in Roberts's rationalization that requires that. Congress just found it convenient to do so. In theory, given this precedent, even people who otherwise would owe no or very little tax could find their "tax" bill substantially, even wildly or disastrously, increased (beyond, that is, what they owe on the basis of a plain calculation as a percent of income) by what is neither more nor less than a fine for failing to do x or for doing y. That is a good deal different from just "not giving them a tax deduction." I note that most health insurance premiums are already tax deductible (either as a deduction on one's tax form or as taken out of one's checks and/or paid pre-tax by the employer) and that people who decide to "wing it" and not buy health insurance already don't get that deduction. I actually know some people like that. The new fine/tax for breathing-in-America-while-not-having-health-insurance will be a _new_ expense for them, so obviously it isn't just the same thing as "not giving you a tax deduction for behavior we want to incentivize."

G.I.,

Lydia's answer to you is good, but I would just add that there is a big difference between not getting a benefit (i.e. the mortgage interest deduction) and being penalized for not doing something. Right now, if I'm a renter, I don't pay a penalty for being a renter on April 15th. I just don't get the same benefit as homeowners get of being able to deduct the cost of my mortage interest payment (of course, I also don't have the expense of a mortgage, so there is that to consider...) This is not semantics -- this is a real distinction that means something in the real world -- people would be rightly outraged if Congress suddenly decided to start 'taxing' (or should I say penalizing) folks for choosing to live in certain types of housing.

Meanwhile, to illustrate the absurdity of Roberts' decision, I highly recommend this post:

http://sonnybunch.com/the-gun-mandate/#comments

One of the best I've read yet.

This "tax" is really more like a poll tax, deliberately levied as a punishment, than like an income tax at all. I suppose the nearest way to make it parallel to a tax deduction would be to imagine that Congress enacted a poll tax on every breathing person within the boundaries of America over a particular age, then said they would give a "credit" equivalent to the poll tax, canceling it out, to everyone who purchased a house (or who bought broccoli or guns or who read Das Kapital or whatever, make it up as you like) but not to those who couldn't verify that they had engaged in the desired activity. Then task the IRS to collect this "tax."

Anyone who doesn't realize that that would be a new thing in America, and that it would be a fine for refusing to engage in the desired activity, and that it would be a scary increase in Congressional use of power, isn't thinking clearly.

Lydia, et al,

How does the lemonade at Hugh Hewitt's lemonade stand taste: What Will You Say Next Year, In Two Years, and In Five Years?

Should we adopt the wait-and-see posture?

Lydia, the clue that 'forgiveness of destitute people' is an essential part of the law is in page 41 of the opinion, where - contrary to your claim - Roberts explains why this provision prevents the ACA from being an unconstitutional, unapportioned direct tax.

Again, it is not news that people who otherwise would owe no or very little tax may find their tax bill increases because they fail to do X. Take Family A, and Family B. Both have identical incomes and deductions. The only difference: Family A has two minor children and Family B does not.

It's perfectly possible that - because they qualify for the Child Tax Credit - Family A pays zero federal income tax. Meanwhile, Family B's tax bill is "substantially, even wildly or disastrously" higher. If you're right, this too must be neither more nor less a fine for failing to have children.

Of COURSE this new tax will be a new expense for some people - that's the point. And of course it isn't the same as simply giving a tax deduction. But it IS substantively the same as giving an across-the-board income tax increase, THEN giving a deduction or credit to those who have health insurance.

==========

Jeffrey S., all being else equal (and assuming itemization etc.), your tax bill on April 15th will be higher if you rent than it would if you have a mortgage.

If you want to characterize that as receiving less benefit rather than paying more tax, that's fine, but that implies that the government is giving less money TO you, rather than taking more FROM you. Which, of course, is exactly what Congress WANTS you to think.

Substantively though, they're the same thing, which is exactly why they don't call it a tax. Nevertheless, deductions, credits, etc. are identical to tax increases on those who don't qualify.

G.I.,

Thanks for the follow-up. You say,

"If you want to characterize that as receiving less benefit rather than paying more tax, that's fine, but that implies that the government is giving less money TO you, rather than taking more FROM you. Which, of course, is exactly what Congress WANTS you to think.

Substantively though, they're the same thing, which is exactly why they don't call it a tax. Nevertheless, deductions, credits, etc. are identical to tax increases on those who don't qualify."

I don't think this is right. This would imply that because I'm not poor and don't receive food stamps, for example, I'm "taxed" the amount of the benefit that goes to poor people. Likewise, because I didn't get a Pell Grant I was "taxed" when all those working class neighbors of mine in Chicago got one. I just think you are mixing apples and oranges and trying to twist the common-sense meaning of tax and receiving a benefit beyond recognition.

And important for this discussion, your argument, even if it was true substantively (which I don't think it is) FAILS constitutionally -- unless you make the crazy argument John Roberts made.

Literally re-writing the law and making up absurd, extra-legal arguments out of whole cloth to spare an unconstitutional law isn't "less activist" than overturning the entire thing by any sensible definition of "activism."

It is so absurd that my local conservative opinionator spent his entire newspaper column telling his readers "of course" it was a tax, it was liberal propaganda that kept everyone from calling it a tax to begin with. Congress has the right to address complex issues and problems with complex legislation. It doesn't follow that overturning one or two aspects of it (even important aspects) makes the entire thing unconstitutional. I don't particularly care for Robert's solution of patching things over, simply because he should have declared the mandate constitutional under the Commerce Clause.

Let me turn the tables around, what if a Republican majority with a filibuster-proof Senate worked for six months on what they considered a vital piece of economic legislation (perhaps eliminating the Federal Reserve)? Would you really claim that a law with dozens of major provisions and hundreds of minor changes should be tossed out in total because one or two parts of it were deemed unconstitutional by a liberal majority on the Supreme Court? I can't imagine a scenario like this where you all wouldn't be screaming about activist judges.

Lydia, the clue that 'forgiveness of destitute people' is an essential part of the law is in page 41 of the opinion, where - contrary to your claim - Roberts explains why this provision prevents the ACA from being an unconstitutional, unapportioned direct tax.

Unprincipled opinion gerrymandering.

And that's putting it nicely.

TUAD, no, we absolutely should not adopt a wait-and-see approach. Absolutely not. The opinion was wrong, wrong, and wronger, and this is *not*, repeat *not* a matter of political outcomes. For goodness' sake! We conservatives have been arguing against the politicizing of the court for decades, and now we're going to try to defend Roberts for a blatantly wrong, blatantly false, lying, precedent-setting constitutional decision on the grounds of political calculation??!! Outrageous. Simply outrageous. To quote the brilliant line of a Facebook friend of mine, who would probably not want to be named, "Anyone who would grant a permanent and unlimited tax power for a short term political gain is a hack."

I couldn't have said it better myself.

It's almost more insulting to Roberts to attribute such motives to him than just to hold that he was afraid of some court-packing scheme or was sheerly overwhelmed by peer pressure.

But ultimately, as a matter of what this means for our American republic, his motives, political or otherwise, do not matter. The decision with its twisted logic, its huge and unconstitutional grant of power, is what it is. It is a disaster in itself. To quote myself, again:

Conservatives should [not] be happy to trade their birthright of limited federal powers for a mess of political pottage. *Even if* this energized the voters, "gave Romney something to say," and Obamacare were overturned by Congress, that couldn't possibly compensate for the principle that has been sacrificed.

I really don't know how much clearer to make this or how many times it has to be said.

I can't imagine a scenario like this where you all wouldn't be screaming about activist judges.

Sorry, Step, but I'm afraid that just illustrates once again what you've been showing throughout your mini-thread with Sage here. Namely, that you really don't even begin to understand actual conservatives when it comes to constitutional reasoning. At all. Perhaps you could take a clue from the fact that several of us in this thread *are not* succumbing to the partisan spinmeistering that is, sadly, going on on the right concerning this decision and is entirely tied to political outcomes. Because, you see, we actually care about what the document means, we believe in objective truth. All that boring jazz.

I'm in complete agreement with Lydia of June 29, 2012 7:02 PM. The spectacle of conservatives falling for Roberts' transparent sophistries has a certain morbid amusement to it, but mostly it is a horror show.

A very wise friend of mine put it well: Roberts' motives are known only to himself. For us it's a sh*t sandwich.

Because, you see, we actually care about what the document means, we believe in objective truth.

Lydia, the limited, enumerated powers of the republic became terminally ill when the Confederates fired on Fort Sumter. They officially died after the Great Depression. They became zombies during the Cold War and rotted away into dust during the War on Terror. You believe in the objective truth of the Immaculate Conception of the Constitution, but 150 years of political, economic and military history has to be distorted to maintain that truth.

Oh, well, in that case, Step, what the hell. Let's just redefine "activist" to mean "telling Congress it can't do whatever the heck it wants if it has written a bill containing a lot of stuff and passed it with a big majority." Why even bother with judicial review, anyway? No point in trying to limit the quodlibetal power of Leviathan. Justice Roberts could have saved himself a lot of time writing a sophistical opinion if he had just said, "The limited powers of the republic officially died after the Great Depression and have by this time rotted away to dust. So go for it, dudes. Do whatever you want. What do we have to say about it? The issue of constitutional authority simply doesn't arise any more." At least that would have been more straightforward than what he did so.

I think juridical and political issues are being confused here. I'm talking only about the former. How could Congress's so-called "intent" be juridically, as opposed to politically, relevant?

What if the mandate were written so that you got a tax credit for buying insurance? Would that be a tax, or a penalty? I don't see a substantive difference between that and charging a higher tax (or whatever you call it) for not buying insurance.

On the what-is-a-tax question, I think Roberts' answer is surprisingly correct and non-sophist. It's essential that the money is collected by the IRS through usual tax procedures, as opposed to collection by the courts through judicial procedures. Procedure Matters.

On Mr. McLaughlin's objection that Roberts didn't even say what kind of tax this is, if that's true (I haven't read the majority opinion), then it does seem pretty weird. I don't think such a specification would change the arguments of either side. Some of the founders themselves, Madison and Hamilton, made the same contrary interpretations of the General Welfare Clause that are being argued today, so I don't think a naive application of original-understanding (naive being the only kind I could make) would help. The Ninth and Tenth Amendments seem totally irrelevant to this question, because the issue is whether the tax is in fact included in the powers granted to Congress. On that question, both sides seem reasonable to me - even after reading these comments, sorry - and I don't know enough about the law to have an opinion.

Jeffrey S said:

"I don't think this is right. This would imply that because I'm not poor and don't receive food stamps, for example, I'm "taxed" the amount of the benefit that goes to poor people."

That's moving outside the income tax discussion, but let's run with it.

If we give an income tax credit to, say, men, the income tax burden immediately shifts toward women.
(We could cut income tax across the board then raise taxes on women and achieve an identical result.)

When the government spends money on food stamps or Pell Grants the connection is less immediate and more remote but it still has to be paid for. It might not be by you, because the government might get that money from, say, import duties. And it might not be now, because it might be paid sometime down the line. But sure, by spending, the government is increasing the tax burden on someone other than the recipients.

And important for this discussion, your argument, even if it was true substantively (which I don't think it is) FAILS constitutionally -- unless you make the crazy argument John Roberts made.

But here's the thing: the Supreme Court's discussion wasn't really about whether government could impose this tax, the opinion was about whether government did impose this tax.

I don't think it's news that government could, *in principle*, impose a $10,000 per person tax.
I don't think it's news that government could, *in principle*, financially penalize not owning a gun - as your earlier link argues. (The government does, after all, financially penalize "not having children".)
I don't even think it's news that the ACA could, *in principle*, be written in a way that was clearly and unequivocally constitutional - while achieving identical results.

The central issue was whether the provisions in question were or were not a tax. Roberts' argument boils down to the old duck test: If it looks like a tax, swims like a tax, and quacks like a tax, then it's a tax - no matter what it's called for political reasons.

Lydia said:

Unprincipled opinion gerrymandering.

But I only eat strawberries in June!

Aaron said:

On Mr. McLaughlin's objection that Roberts didn't even say what kind of tax this is, if that's true (I haven't read the majority opinion), then it does seem pretty weird. I don't think such a specification would change the arguments of either side.

It would only matter if the tax was a direct tax - the ACA would then be unconstitutional because it doesn't apportion the tax among the States.

Roberts did address this - concluding that the tax is not a direct tax. The particular flavor of indirect tax is irrelevant and Roberts not mentioning it is meaningless.

A friend of mine who is a Catholic attorney found this little nugget on p. 29 of Ginsburg's concurring opinion:

"A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, inter­fered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause."

As he says: Well, isn't that interesting.

Essentially what has now happened is _exactly_ what some feared would happen when a Bill of Rights was passed: Namely, that the only rights we retain are those enumerated in the Constitution and that Congress (contrary to both the 9th and especially the 10th amendments) has been granted otherwise quodlibetal powers. It's astonishing that the prediction of those who worried about this very thing more than two hundred years ago has come about, despite the _express_ statements in the Bill of Rights itself intended to ward that off. Ginsberg's statement makes that clear.

Sage puts this particularly well above:

The point of the Bill of Rights is to give powers to the federal government that are limited in scope, being specifically enumerated. This is explicit in the text of the 9th and 10th Amendments, which makes clear that the Founders' purpose was to give the people broad, unspecified rights to govern themselves while giving the government only very specific, narrow, limited powers.

This decision turns all that on its head by 1) eliminating the crucial principle, long supported by previous constitutional jurisprudence and by ordinary common sense, that the government cannot achieve unconstitutional aims via constitutional means, 2) granting a broad-based and unspecified power to tax the people punitively and to exercise general police powers ordinarily reserved to the states thereby, and 3) limiting this power only by setting forth that the government cannot violate specifically-enumerated constitutional rights, or those the Court in its merciful wisdom sees fit to invent. The federal government has never enjoyed such an arbitrary and tyrannical power to tell every American what he must do, on pain of punishing taxation, for the purpose of achieving whatever policy aims it damned well pleases.

Thucydides, a commentator at VFR, puts very well the new nature of the power Roberts has created (emphasis added):

Roberts’s notion that the Congress can impose a tax for pretty much any purpose (regardless of whether the purpose can be justified under the commerce or welfare clauses) blows a hole in the notion that the central government is one of defined and limited powers. It would in effect extend a general police power to the federal government, something never before seen.

Re: mandated gun purchases to fill a policy need

http://hnn.us/articles/founding-fathers-had-individual-mandate%E2%80%94-buy-guns

No point in trying to limit the quodlibetal power of Leviathan.

Obviously Congress can repeal or alter its own laws, nobody has claimed otherwise. My primary objection is to the idea that SCOTUS should use a chainsaw when only a scalpel is needed. A whole lot of Democrats, including myself, were prepared for a decision that overturned the mandate despite it originally being a Republican proposal. Keep in mind that all three appellate court decisions on the merits and five of six district courts found the ACA to be constitutional OR constitutional without the mandate. It would have all the appearance of blatant partisanship to side with one district court, one that was overruled on the question of severability at the appellate level, against all the rest.

Roberts did address this - concluding that the tax is not a direct tax. The particular flavor of indirect tax is irrelevant and Roberts not mentioning it is meaningless.

Wrong, wrong, wrong. The Constitution actually tells us precisely what sorts of tax the federal government is permitted to levy--direct taxes being one of them, the others being excise and income. Roberts acknowledges in his opinion that the tax is not a direct tax, but does not go on to tell us what sort of tax it actually is, since it obviously is neither an excise nor an income tax. You know howhe deals with this issue? He ignores it. You may find it impossible to believe that his opinion could really be that bad, and may be esperate for whatever reason to assume that what he did was perfectly normal and proper, but it is precisely that bad.

Again, the power of Congress to levy taxes is enumerated and specific. That so many people, including a majority of Justices of the Supreme Court, are so utterly indifferent to this fact only reinforces my claim that we no longer live under a government of enumerated powers.

Exactly. Yep, it matters that he doesn't know what kind of tax it is. That enumeration idea will get you every time. He literally says that not having insurance is "just another thing the Government taxes, like buying gasoline or earning income." Um, yeah, that makes lots of sense. But remember, the government can't regulate inactivity as commerce. It can just tax inactivity as "another thing." An excise tax on inactivity??? Maybe inactivity is income???

Lydia, the other point I neglected to make was that if the power to tax is so open-ended and intentionally ill-defined, then why does the Constitution go to such pains to define what sorts of taxation are available to government, how it is to be apportioned, and so forth. But here's the real killer question: Why the blazes did we have to pass the 16th Amendment to add income tax to the list of permissible federal modes of taxation? Why does it specify that that type of tax could be collected without apportionment (unlike direct taxation)?

Sage said:

Wrong, wrong, wrong. The Constitution actually tells us precisely what sorts of tax the federal government is permitted to levy--direct taxes being one of them, the others being excise and income.

Exactly.

Only if you both insert the word "Direct" into the taxing power when it simply isn't there.

The Supreme Court made an identical argument to mine back in seventeen... seventeen... ah, yes, seventeen ninety six. They continued:

"The power, in the eighth section of the first article, to lay and collect taxes, included a power to lay direct taxes, (whether capitation, or any other) and also duties, imposts, and excises; and every other species or kind of tax whatsoever, and called by any other name. Duties, imposts, and excises, were enumerated, after the general term taxes, only for the purpose of declaring, that they were to be laid by the rule of uniformity. I consider the Constitution to stand in this manner."
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=3&invol=171

Accordingly, once Roberts determined that the ACA did not impose a direct tax, and because the ACA follws the rule of unifomity, it does not make the slightest bit of difference whether the ACA imposes a duty, impost, excise or "[any] other species or kind of tax whatsoever, and called by any other name." Which, again, is why Roberts didn't spend any time on such a meaningless exercise.

Q.E.D.

Lydia continued:

But remember, the government can't regulate inactivity as commerce. It can just tax inactivity as "another thing." An excise tax on inactivity??? Maybe inactivity is income???

As I demonstrated earlier the government already, effectively, taxes such inactivities as "not having children". So what's new here, substantively?

Sage:

But here's the real killer question: Why the blazes did we have to pass the 16th Amendment to add income tax to the list of permissible federal modes of taxation?

We didn't. The Sixteenth Amendment conferred no new powers of taxation.

Why does it specify that that type of tax could be collected without apportionment (unlike direct taxation)?

Because the SCOTUS, in the Pollock decision, had ruled that certain income taxes - on income derived from property - were direct taxes that required apportionment. The Sixtheenth Amendment was passed to remove that apportionment requirement.

Income taxes on such things as compensation for services have always been constitutional, sixteenth amendment or not.

the government already, effectively, taxes such inactivities as "not having children"

Only _extremely_ indirectly and by way of taxing _income_. To repeat Thucydides' insightful point above:

It would in effect extend a general police power to the federal government, something never before seen.

You can keep saying "nothing has changed" until you're blue in the face, G.I., but we have never before given Congress the general power to tell everybody in the country, "Do whatever we want or pay a fine" about anything whatsoever they dream up that isn't deemed to violate some enumerated constitutional right. No one ever understood a precedent in 1796 to give the federal government quodlibetal power to fine of that sort. Everything else is sophistry, and every pretense that this is not a fine is sophistry.

An excise tax on inactivity?

Inactivity (aka making a choice to be uninsured) that has a predictable social cost could fall under the public safety and health aspect of excise taxes.

Everything else is sophistry, and every pretense that this is not a fine is sophistry.

In other words, eat the broccoli liberals. But I don't want to eat broccoli and I dispute your quodlibetal power to compel me.

"...Chief Justice Roberts has decided that the Congress can in fact pass a law requiring Americans to eat broccoli..."

No, he has decided to allow another massive rent extraction by the health insurance industry to continue (Medicare parts C & D being other examples). The whole broccoli thing is a sign that something is very wrong with Scalia (coreyrobin dot com has a series of interesting speculations on the chap)

Now, it seems Roberts changed his vote at the last minute after first voting with Scalia et al and we can speculate forever as to his reasons.

Perhaps things like this,

http://drjengunter.wordpress.com/2012/03/28/cancer-v-the-constitution/

and this,

http://www.newyorker.com/online/blogs/comment/2012/06/something-wicked-this-way-comes.html

led to a still small voice changing his heart or some combination of the above. Anyway, decisions like this by the Supremes will always be driven by "other" considerations, our Constitution being sufficiently flexible and well able to accommodate all sorts of possibilities - there is no "right" answer and endless speculation on this or that section is pointless.

Folks getting the vapors over this tax should read the relevant section (googling "5000 penalty" will get you to the U.S.C.) before engaging in wild speculations. By what process do we get from an unenforceable insignificant penalty affecting very few to ruinous taxes on home schoolers - life is rarely linear and most slopes turn out to be level or uphill (If one owns a ten million dollar home in California and home schools, one does pay such a tax).

Just after the decision a friend of mine made some disparaging remark about "Obamacare".

"Even after it saved you at least $10,000 or so," asked I?

Blank look and some mumbling in reply. Like most folks (and all but a couple of the commenters here), his actual knowledge of the ACA is quite lacking. It seems his 21 y.o. son recently had an abdominal infection that he, being young and dumb, neglected to deal with until the pain became unbearable (and far more difficult to deal with). There is no way his wife would have left the kid to his own devices. The kid was covered, of course, because of Obamacare.

Thucydides

"It would in effect extend a general police power to the federal government, something never before seen."

Bruce Bartlett,

"A government with the power to force us to buy health insurance can also force restaurants to serve black people."

"At this very moment the leftist architects of Obamacare..."

You mean AEI, Heritage, and Mitt Romney? No gloating here but I am happy for the folks who won't die for lack of health care.

"Our history as a republic under a government of limited, enumerated powers is officially at an end, thanks to yet another Supreme Court justice nominated by a President named Bush."

More accurately our Republic ended on December 12, 2000. I look forward to a Restoration, one not likely until well after I have shed this coil.

al writes: "I am happy for the folks who won't die for lack of health care."

Unfortunately, universal health care will increase the scarcity of resources and thus many folks will die while "fully covered." The inability to acquire insurance in the free market because one has pre-existing conditions will be replaced by everyone being "insured" even though some will be denied services because of "post-existing" conditions. The fact they now have a card saying they are "insured" is no real consolation. Being "insured" no more results in healing than distributing M.D.s to every Tom, Dick, and Harry makes one a doctor.

In such a world, the decreasing of the gap between the living and the dead is extolled as "justice," even though the movement toward symmetry is a result of the increasing number of the latter.

Lydia said:

Only _extremely_ indirectly and by way of taxing _income_.

Let's assume that's true. Why should it permissible for the government to do indirectly what it is forbidden to do directly?

we have never before given Congress the general power to tell everybody in the country, "Do whatever we want or pay a fine" about anything whatsoever they dream up that isn't deemed to violate some enumerated constitutional right.

On the one hand you write a bigger check to the IRS on April 15th if you don't have children.
On the other you write a bigger check to the IRS on April 15th if you don't have health insurance.

Why, specifically, should one be constitutional and not the other?

No one ever understood a precedent in 1796 to give the federal government quodlibetal power to fine of that sort.

Only if you think "every other species or kind of tax whatsoever, and called by any other name" doesn't mean "every other species or kind of tax whatsoever, and called by any other name".

"Unfortunately, universal health care will increase the scarcity of resources and thus many folks will die while "fully covered.""

Dr. Beckwith, micro doesn't explain macro so that talking point won't fly.

"Being "insured" no more results in healing..."

Then how about explaining how uninsured folks who reach 65 and go on Medicare have improved health outcomes. Or, how is it that every other industrialized nation manages some flavor of national healthcare at less cost with as good or better outcomes as ours?

As I understand it, the ACA is pretty close to the Swiss scheme and the Swiss seem not to have suffered your predicted outcome. How can this be?

I understand that conservatives have problems with certain concepts. Just as there isn't a fixed number of dollars that can't be exceeded, there no fixed amount of health care. There is quite a bit of inefficiency and rent extraction in the system and push come to shove we can start wringing.

BTW, I assume ND has a great plan so your comment could be read as one in the lifeboat whacking the fingers of those not so situated. Yet another reason to not be a conservative. Fear not, giving the great unwashed a chance at some good things doesn't mean less for us more fortunate folks.

Check out the ACA - really, you all need to actually go to the law instead of wherever you are getting your talking points - and you will find sections that deal with expanding the system.

I guess I'm the only person who has read through this entire thread without understanding what constitutional principle is at stake that warranted the proposed Obamacare legislation being entrusted to the Supreme Court for study and a ruling. Who referred this case to the highest level anyway?

I don't think anyone in the UK would take exception to a mandate requiring citizens to buy personal health insurance. We are used to government interference in almost every aspect of private life, and demand a cradle to grave solicitude from our governors.

English judges can't prevent the enactment of legislation by Parliament and they can't overturn statutes. Repeal and modification of law is possible of course in the same or by another Parliament.

Well, Alex, the constitutional principle that is at stake is called "enumerated powers." I'm a little surprised that you read through the whole thread and found that obscure. Sage has explained it repeatedly (and well) in this thread. Here's just one of his paragraphs:

The point of the Bill of Rights is to give powers to the federal government that are limited in scope, being specifically enumerated. This is explicit in the text of the 9th and 10th Amendments, which makes clear that the Founders' purpose was to give the people broad, unspecified rights to govern themselves while giving the government only very specific, narrow, limited powers.

This decision turns all that on its head by 1) eliminating the crucial principle, long supported by previous constitutional jurisprudence and by ordinary common sense, that the government cannot achieve unconstitutional aims via constitutional means, 2) granting a broad-based and unspecified power to tax the people punitively and to exercise general police powers ordinarily reserved to the states thereby, and 3) limiting this power only by setting forth that the government cannot violate specifically-enumerated constitutional rights, or those the Court in its merciful wisdom sees fit to invent. The federal government has never enjoyed such an arbitrary and tyrannical power to tell every American what he must do, on pain of punishing taxation, for the purpose of achieving whatever policy aims it damned well pleases.

Okay, that's two paragraphs. I realize that this is different from England. Then again, America never claimed to be the same as England! Those of us who praise the wisdom of our founders and who find in that wisdom--in setting out a _limited_ federal government and a balance of powers among governmental branches and between federal and state--consider these things to be of the essence of our American form of government. We've been losing ground on that essence for a while, via a combination of federal legislative encroachments and various Supreme Court decisions. This decision has particularly sweeping ramifications for that principle which have been explained in this thread repeatedly. I will quote again a commentator from a different blog:

Roberts’s notion that the Congress can impose a tax for pretty much any purpose (regardless of whether the purpose can be justified under the commerce or welfare clauses) blows a hole in the notion that the central government is one of defined and limited powers. It would in effect extend a general police power to the federal government, something never before seen.

This might not matter to a Brit in the British system, because the British system was never set up with that crucial notion of a limited federal government with limited powers. All I can say is, it was once the glory of American federalism and the American republic, and you'll have to excuse some of us for mourning the final stake in the heart of that principle.

al,

The ACA solves absolutely nothing. Anyone can opt out of health insurance and pay the lower penalty instead and then get insurance when they actually need it. Over time a growing percentage of people who pay for insurance will also be drawing claims. The insurance industry will die and the Left will demand single payer which was the plan all along anyway.

G.I.,

I like your persistant style. I will say this -- what you have started to do is actually make me consider the constitutionality of all those tax credit schemes I once never gave a second thought; as you say, the end result of a child tax credit is a couple without kids pays more (a penalty?) on April 15th than a similarly situated couple; therefore aren't we penalizing the couple without kids for inactivity (in this case having no kids)?

I'm inclined to say yes, but I'm inclined to say most legislation passed by Congress post-New Deal is not constitutional. So this just adds fuel to the fire.

Step 2,

Requiring folks who are going to be part of militias or called up for conscription in a national army would obviously fall under the authority granted to Congress for these purposes under Article 1, Section 8.

"The ACA solves absolutely nothing."

Perhaps, but parents with children with pre-existing conditions or offspring between 18 and 26 as well as geezers who now get annual checkups or who were in the "dough-nut hole" would probably disagree.

As with the good doctor i would point out that attempts at a definitive micro-economic argument against the ACA will likely fail.

Our totally dysfunctional political climate gave us a camel which fits as we are surely in a desert.

A public option would have been good and Medicare for all better yet but that would have required a level of sanity we simply don't have.

Thank you though for pointing out the weakness inherent in this "oppressive tax". It's refreshing to see at one person around here sees the sky as not falling.

"...the glory of American federalism..."

The most notable features of which were evil compromises at the beginning followed by 75 years of slavery, Civil War, and 100 years of Jim Crow. I guess using that glorious principle as a rationale to deny some folks heath care fits.

Interesting story linked here,

http://www.washingtonmonthly.com/political-animal-a/2012_07/a_new_grievance_for_the_right038300.php

Al, if half the population were blind and the other half had sight, the government could, by law, require that the sighted donate one eye to the blind. Everyone would be equal--no one would be blind and everyone would have the same eyesight--but it would be clearly unjust, even though the "plan" works like a charm. Distribution cannot be its own justification, unless you want a republic of unreason, which is precisely what you're getting here.

The way one assesses a government policy is not by the scope of benefits or whether everyone is getting their "fair share," but whether the means by which it is instituted is itself just. This is why St. Paul warns us that we should not do evil so that good may come.

I am no good with financial information, so maybe y'all can help me out.

I have five children. When they lived at home, this is what we did: at tax time, we figured out how much tax was owed on our income (say $1000, to create a very simple example), then we were allowed to deduct a certain amount per child from that owed tax -- let's say $10o dollars a kid (I'm an English major; I need simple numbers, not realistic ones) -- so that my owed tax would then be discounted to $500. I had been given a benefit, in other words, because of something I chose to do --have children -- which costs more than not doing it.

Now we are empty-nesters, and I start at the same place: I figure out how much tax I owe on my income (let's leave it at $1000), and because I no longer have the expense of children in my home, I no longer have the benefit of the child deduction -- so I owe the entire tax of $1000, the tax I would have owed in any case if no deductions were ever offered to anyone. This is not a penalty for no longer having children at home; it is not receiving a benefit because the condition to receive it no longer exists.

Now -- my understanding of this new tax, which certainly may be wrong, is that it works more like this: I figure out the taxes on my income and find I owe $1000. Assuming I have no deductions, if I have health insurance, I must pay $1000. But if I have *not engaged* in buying insurance, I will owe not $1000, but, say, $1500. This is no longer a tax on my income --that is $1000, I've already figured out -- but a penalty for *not* doing something, specifically for not buying something. Those with insurance are not receiving a benefit that I don't get (like I don't get the child deduction because I don't have children at home) but my tax is being raised, above what it would be just on my income, because I didn't do something.

That's what I seem to be gathering, because I don't hear anybody saying that people who *do* buy insurance will be given a deduction on their owed taxes -- which wouldn't actually bother me that much; I don't buy insurance, I don't get a deduction; fine. Rather, what I keep hearing is that anyone who *doesn't* buy insurance will have to pay *above* the tax they would be assessed on their income. So which is it for insurance: I get the benefit of a deduction for buying it, or I am penalized (the tax I already owe is raised) for not buying it? To me, there is a significant difference in these two scenarios.

Thanks, Lydia, for having the patience, and not for the first time, to deal with my ignorance.

I did read Sage's eloquent explanation but wondered whether - in this particular matter - the claim that an unconstitutional end was being justified by constitutional means wasn't just a partisan opinion? In which case no objective constitutional principle need be violated by Mr Obama's plan. Isn't that why Chief Justice Roberts found reasons to 'flip' from his expected judgment? (Unless it's assumed his ruling merely discovers a liberal who has jumped out of the closet in order to appall conservative America.)

From the perspective of 'American individualist fundamentalism' (a term I've just invented) any taxation by the federal government could be described as 'punishing'. Maybe I'm too complacent in believing that we cannot prevent governments from spending public money, once they've acquired it, in almost any way they choose. And the only redress is to kick them out.

In the matter of health care, as you know British workers must pay a National Insurance contribution - even if they can afford and in fact do pay for medical treatment out of their own pockets. There's no opting out.

Romney IS Liberal Lite -- the entire GOP is. But Liberal Lite is better than Socialist/Cultural Marxist Lite, at least in the short run.

The sooner the system crashes, the sooner you can reboot.

The longer before the crash, the more data you lose.

Just sayin'.

al,

On the road to medicare for all would be numerous attempts to raise the fine for opting out of health insurance in order to strengthen, then preserve, then delay the ultimate and inevitable failure of the system--Supreme Court precedent be damned. Such is the nature of the Left.

Not that any of this matters in my view anyway. We are probably no more than 2 years away from total dollar hyperinflation after which budget and trade deficits as we've come to know them will no longer be possible. Then all this big government we've accumulated will have to paid for essentially from tax receipts. Approximately half the country will consent to the higher taxes (on the largely white middle class) required, the other half (mostly white middle class) will not go along. Things will get very interesting once we can no longer paper over the gaping (and growing)differences between the political right and left with trillion dollar deficits.

I can never tell for certain when the Slippery Slope is a fallacy and when it's a truthful warning.

It is always both.

It is a logical fallacy in the sense that if A occurs, it does not by strict necessity mean B must follow.

e.g. - if gay marriage occurs, it does not mean polygamy must, of necessity, be allowed. It could still be prohibited, albeit somewhat arbitrarily.

But it is a warning in that almost always B follows A, even if it does not have to. What most people who gripe about the slippery slope forget when raised as part of a policy argument is that public policy is meant to deal with real people in the real world (i.e. human nature), therefore strict logic in an academic sense is not the only thing to be considered.

When I say that none of this matters, I'm speaking about the specifics of how the ACA plays out over time. There won't be much time, in my view, for this to play out. Economic reality will make sure of that. The Constitutional principle at stake however does concern me greatly, being a normal, clear-thinking, non-Marxist, non-leftist American.

I said earlier

On the road to medicare for all would be numerous attempts to raise the fine for opting out of health insurance...

That should be instead

On the road to medicare for all would be numerous attempts to raise the fine for not engaging in a form of commerce the government now requires us to engage in on penalty of said fine...

Beth, that is my thinking of it. Currently you get tax breaks for certain activities. BTW, one of those tax breaks you get is for buying health insurance and paying for healthcare which are tax deductible. Some of those tax deductions you can support as Constitutional for items like deductions for dependents. When I have dependents, my income, let's say, is spread across 2 people instead of just myself. So, it makes sense and is Constitutional that my income tax would be reduced some to account for supporting more than just myself. Other deductions though are questionable but at least follow the same model of everyone has the same tax rate but you can get deductions for certain things. This ruling now makes it legal to directly punish with a specific tax for not doing something.

A public option would have been good and Medicare for all better yet but that would have required a level of sanity we simply don't have.

Yeah, the gov't can't control Medicare costs now. I would say it is sane to think that just making that the one-payer system is insane.

there is no "right" answer and endless speculation on this or that section is pointless.

As Step2 and al prove in their above posts, it is useless to debate with Leftists. Truth doesn't matter, only power and the ability to wield it. Obviously, everything they say is flexible and open to interpretation.

This ruling now makes it legal to directly punish with a specific tax for not doing something.

Bingo, exactly. This is what I pointed out above. We _already_ have tax deductions for insurance premiums. Evidently that isn't motivating enough people to buy insurance to keep Obamacare afloat, so the law mandated, in addition, a _penalty_ for not buying insurance. If the latter were just the same as a tax deduction on your income tax, it wouldn't be...well...something they had to add. Let me add too that under the IRS code, we have a rule such as that x percent of taxes are prima facie owed on income within certain ranges. Those percentages are independent of your activities. The various "tax breaks" then come in after that. Whether constitutional or not, they are what they are, which is *not* the same thing as setting a specific tax on you *just because* you don't engage in a desired activity. It's amusing to see that Roberts first said it was a tax, realized that *if* it is a tax it is most like a "direct tax" (as I said above--like a poll tax on every individual, which is then "rescinded" precisely and selectively for those who engage in the desired activity or who are destitute) and that treating it as a direct tax (which would have to be apportioned equally across the states) wasn't the desired policy outcome (!), so he gerrymandered still further by claiming that it *isn't* a direct tax without telling us what kind of tax it is! This decision ranks right up there with Roe v. Wade for blatant legislating from the bench.

Thanks, Chris and Lydia. We English types need very simplistic language to be sure we are getting something if it involves numbers! Sometimes I think I am understanding when I am not, so I appreciate your taking the time to confirm my thinking.

Jeffrey S.:

as you say, the end result of a child tax credit is a couple without kids pays more (a penalty?) on April 15th than a similarly situated couple; therefore aren't we penalizing the couple without kids for inactivity (in this case having no kids)?

Pretty much any time the tax code rewards activity it also, by definition, penalizes inactivity. And vice versa.

Beth:

So which is it for insurance: I get the benefit of a deduction for buying it, or I am penalized (the tax I already owe is raised) for not buying it? To me, there is a significant difference in these two scenarios.

It might help to eliminate loaded terms like 'penalties' and 'credits' and just look at the total amount you send the IRS on April 15th.

If the government wants you to pay $1,000 if you have insurance and $1,500 if you don't they can do this in one of two ways:

1) Keep your tax at $1,000, then get you to pay an extra $500 if you don't have insurance.

2) Raise your tax to $1,500, then give $500 back to you if you have insurance.

One might sound 'better' than the other but in both instances the end result - the check you write to the IRS on April 15th - is identical.

One might be politically more desirable than the other, but there's no good reason why one should be constitutional and the other unconstitutional.

Lydia:

The various "tax breaks" then come in after that. Whether constitutional or not, they are what they are, which is *not* the same thing as setting a specific tax on you *just because* you don't engage in a desired activity.

Of course, nobody said it was.

But increasing income tax across the board then offering a credit for engaging in a desired activity is exactly the same thing as setting a specific tax on not engaging in a desired activity.

So, once again, why should it permissible for the government to do indirectly what it is forbidden to do directly?

It's amusing to see that Roberts first said it was a tax, realized that *if* it is a tax it is most like a "direct tax"

Except that he did no such thing - although he did respond to Plaintiffs contending that.

so he gerrymandered still further by claiming that it *isn't* a direct tax without telling us what kind of tax it is!

Probably because, as I explained to you above, it doesn't make any difference whatsoever.

I haven't been reading this thread much, but I agreed with the earlier points that Guy Incognito made. No matter how I look at it, I cannot see how a tax penalty for failing to buy a product is different from a tax deduction for buying it except when the penalty would cause a violation of a right enshrined in the Bill of Rights.

Let's say you tax someone at 30% and offer them a 3% reduction if they take out a mortgage. They're compelled by law to pay the 30% unless they choose to take out the mortgage to receive a deduction. If that doesn't violate the equal protection rights of those who want to pay only 27% and not have a mortgage, then I don't think you can make a case at all for saying that the base rate is 30% and failing to take out a mortgage jacks it up to 33%. Either way, the tax policy is inflicting some sort of tax extraction by force unless the tax payer voluntarily takes an action which pleases Congress.

I was mad as hell when I read about Roberts' actions, but upon reflection and reading, I realized that this really is just an expansion on something we've been doing for a while. It should be another reminder to social conservatives like Jeff who are eager to use tax and welfare policy to "achieve conservative ends" that social engineering is extremely dangerous to accept on principle.

then I don't think you can make a case at all for saying that the base rate is 30% and failing to take out a mortgage jacks it up to 33%

** I don't think you can make a case at all that starting at, say, a base rate of 30% and then penalizing someone up to 33% for failing to get a mortgage is a violation of their rights either. You accept as a given that the government has a right to bring the base rate up to (questionably unjust) high rates, and then lower them if the tax payer obediently does things which please Congress. That is, in my opinion, just an indirect form of a penalty. It's nothing more than a sleight of hand.

My question to my fellow libertarians and conservatives (sorry for the triple posting) now is: if the government brought the tax rate up to 75% and then offered 10% deductions per child (up to 3 kids) and 5-15% for a mortgage, would you still say that there is a fundamental difference?

But increasing income tax across the board then offering a credit for engaging in a desired activity is exactly the same thing as setting a specific tax on not engaging in a desired activity.

I have two problems with this. The first is that the childless couple is being neither penalized nor incentivized, but simply paying the going rate for their tax bracket. The couple with children pay the same rate, but are then offered a benefit to level the field somewhat due to the added expense of raising children. This is straightforwardly a matter of equitability, not of incentivizing desired activity. The couple with children may in the end have no more disposable income than the childless couple. Both are being taxed on the basis of something that actually exists, their income. But in the ACA setup, both the childless couple and the couple with children are being told to go do something, and if they don't they will be fined for it. For what? For walking down the street?

Second, you don't get to keep calling it a "tax on not engaging in a desired activity." You have to call it, as Roberts should have called it, what the statute calls it: a penalty. As Scalia et al's dissent reminds us:

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.” 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. Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah,etc. "...we have never held — never — that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power — even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.
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.

The impossibility of taxing people in proportion to their revenue, by any capitation, seems to have given occasion to the invention of taxes upon consumable commodities; the state not knowing how to tax directly and proportionably the revenue of its subjects, endeavours to tax it indirectly by taxing their expense, which it is supposed in most cases will be neatly in proportion to their revenue. Their expense is taxed by taxing the consumable commodities upon which it is laid out.

My question to my fellow libertarians and conservatives (sorry for the triple posting) now is: if the government brought the tax rate up to 75% and then offered 10% deductions per child (up to 3 kids) and 5-15% for a mortgage, would you still say that there is a fundamental difference?

From the Libertarian perspective (as I understand it - relatively new to this) - the income tax itself violates the equal protection clause because it penalizes or favors people based on income.

Why, under the Constitution, should one individual have to pay more tax than another? Does that one individual derive more benefit from the government?

The whole system is a violation and should be abolished. We should go back to user fees and tariffs.

What name would you give that "tax" which the ACA statute calls a penalty?

A proportioned excise tax. It is collected at the individual level but is based on aggregate costs of the inactive group. Like alcohol taxes we know there is greater health and ergo financial risk involved in not having adequate health insurance compared to those who do have it, even though that risk cannot be pinpointed to a particular person or drink. The tax is spread out among the appropriate population to recover some, but not all, of the external costs associated with that risk like unemployment, imprisonment, or destitution.

Does that one individual derive more benefit from the government?

Yes. They are benefiting more from banking protections, contract enforcement, and national and global policing. They are likely benefiting indirectly from education and transport expenditures or directly from tax exemptions and subsidies.

Guy Incognito, Mike T, and William Luse,

For some mysterious reason this taxation question has captured my imagination. I really, really like this discussion.

Mike, I think I'm now at the point where I agree with you and Guy that substantively, the whole tax credit versus tax penalty issue is moot -- they are the same creature with different names. Bill, while you think the government is just trying to level the playing field between couples with children and those without (due to the expense of having kids) you could imagine a situation in which the tax credit is generous enough that it does actually incentivize couples to have children (or at least tilt the playing field to those couples). In fact, as Mike alludes to, I have thought of using the tax code for such purposes to promote pro-family policies.

BUT, on the other hand, I think Bill is right to keep making the legal distinction important here. Why? Because as Scalia's dissent notes in the ACA case, there is a reason spending and tax bills have to be introduced in the House -- every two years Representatives must face the voters. By explicitly crafting Obamacare as a penalty, the authors were trying to avoid the tax label to get their bill passed -- it is unfair now for Roberts to do the heavy lifting of Democratic Congress members and legislate from the bench the tax increase that Obama and Nancy Pelosi couldn't pass back in 2010. As Lydia's original post so eloquently said -- procedure matters!!!

Alot of comments trying to put lipstick on a pig. Which applies also to Willard Mitty . Look wake up and smell the cordite--ONE HALF of the population is on government support, otherwise called sucking at the teat of Uncle Sam, and pays NO taxes. They will always vote for the Teat.

What this very long and complicated discussion demonstrates, I think, is how many well-informed Americans care a lot about the way they're governed. That's very creditable.

In contrast, over here in the Somnambulist Isles, nobody loses a wink of sleep over what the government does. Our concerns in a free lunch culture, is how much largess the state is likely to distribute and whether we're entitled to any of it.

From the Libertarian perspective (as I understand it - relatively new to this) - the income tax itself violates the equal protection clause because it penalizes or favors people based on income.

Yup. One of the things being left out here by those castigating Roberts is that it should be unconstitutional to give someone a tax credit or deduction for engaging in a favored action. It would be one thing to give tax credits to those who are already paying directly related taxes such as tariffs; an importer probably shouldn't have to pay income tax on a portion of income specifically meant to cover the cost of personally paying the tariff.

I don't entirely agree with Bill on the issue of the child credit. The child credit, like most of the "enable them to have 2 kids and a home with a white picket fence" tax policies, is aimed at working around the fact that the progressive income tax is toxic to family formation. At 23, I was paying a higher rate of federal taxes than I do now with a wife and our various deductions. Sometimes I think it is a miracle that most of my college peers could get married due to how much they were expected to pay as single men trying to get started in life. As we all know, single never need to save a lot of money to get a family started, amiright?...

I don't see how the very existence of an income tax can be unconstitutional since at least they bothered passing a constitutional amendment to _have_ an income tax. They should have had to do the same with Obamacare. Which wouldn't have happened.

Lydia, if you're referring to my comments, I am not saying the income tax itself is unconstitutional. I am saying that if you want to rail against tax penalties, you need to rail against tax credits and deductions on similar constitutional grounds. If you don't take an action that qualifies for a deduction or credit, then you are being forced to pay more taxes than the people who take them.

Roberts actually did us a favor regardless of his motives. He laid bare the full nature of our income tax system as we accepted it until recently. He just made something which moderates used to call paranoia (moderates being typically as prescient as cattle in predicting political trends beyond a business week) a political reality.

William Luse said:

I have two problems with this. The first is that the childless couple is being neither penalized nor incentivized, but simply paying the going rate for their tax bracket. The couple with children pay the same rate, but are then offered a benefit to level the field somewhat due to the added expense of raising children. This is straightforwardly a matter of equitability, not of incentivizing desired activity.

Suppose, instead of the ACA penalty, Congress raises taxes across the board, then offers a credit to those who have health insurance. Identical result.

In that case - if what you say is true - a couple without health insurance is being neither penalized nor incentivized, but simply paying the going rate for their tax bracket. The couple with health insurance pay the same rate, but are then offered a benefit to level the field somewhat due to the added expense of purchasing health insurance. If your argument works, this also would be a straightforwardly a matter of equitability, not of incentivizing desired activity.

If the penalty is objectionable but the raise/credit is not, why should it be so easy for Congress to make an end run around the Constitution?

Second, you don't get to keep calling it a "tax on not engaging in a desired activity." You have to call it, as Roberts should have called it, what the statute calls it: a penalty.

I believe in that instance I was mirroring Lydia's terminology to better make my point, but no matter. Would it make a difference, constitutionally, if the statute called it a "tax" instead of "penalty"?

“‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’”

As I said earlier in the thread, the justices weren't fighting over whether Congress could tax, only about whether they did tax.

It's hard to argue that the provision in question isn't an enforced contribution directly enacted to provide for the support of a specific government program.

So exactly what "expense" or "consummable commodity" is being taxed when the government collars me, as I'm walking down the street or living and breathing in general, and issues a command to go buy something I don't want or need?

Unfortunately, the justice wasn't offering a definition of what is or is not tax. Instead, he was commenting that the government had "invent[ed] taxes upon consumable commodities". If the government could "invent" those kind of taxes, why can't they invent others?

What name would you give that "tax" which the ACA statute calls a penalty?

For the purpose of this discussion "tax" is all that is needed.

Jeffrey S said:

For some mysterious reason this taxation question has captured my imagination. I really, really like this discussion.

I am glad, but then I am a tax geek.

It's easy for politicians to take advantage of the population's general ignorance in tax matters. People don't like being taxed or having tax increases, but credits and deductions sound positively warm and fuzzy.

Lydia said:

I don't see how the very existence of an income tax can be unconstitutional since at least they bothered passing a constitutional amendment to _have_ an income tax.

We don't need the Sixteenth Amendment to have an income tax, as I explained earlier.

Would it make a difference, constitutionally, if the statute called it a "tax" instead of "penalty"?

Well, yes. To quote a FB friend who is right on the money here: "The problem with Roberts decision is that a tax on inactivity can't possibly be anything but a direct tax. The idea that you can indirectly tax nothing is a contradiction in terms. The very definition of the term requires that the tax be levied *on* something other than person or property. If it is levied on a person for doing nothing, that is the essence of a direct tax....Since it's an exaction apportioned by income but not on income, it shouldn't even be a tax at all, but a regulatory penalty, again based on centuries of precedent. Yet even if it were a tax, it is certainly a direct tax and not a tax on income, which makes it unconstitutional for failure to apportion."

In other words: Roberts can't just make it a tax-but-not-a-direct-tax by waving a magic wand. The mere fact that a judge says something in an opinion doesn't mean he is making any sense in saying it.

Help me out here, folks. Constitutionally, I agree that the Roberts decision is irrational and untenable. But it's just one bad decision in a long series of bad decisions. I don't understand why, for some conservatives, this is the proverbial "straw that breaks the camel's back". Some make it sound like it's the end of the republic. It's not the end of the republic. What it is, for better or worse, is another nail (among hundreds) in the coffin of originalism as a viable legal philosophy. The more interesting question, for me, is whether the new quasi-constitutional jurisprudence is redeemable and something we can live with, or whether the loss of originalism renders it hopelessly corrupt.

Jeff, I think you have to realize that some judicial decisions are more crazy than others. This one is particularly crazy, particularly blatant, particularly constitutionally irresponsible. I could list thing after thing--for example, Roberts's expressly "construing" the statute in a way contrary to its own wording, rewriting the law with the blatant political goal of bringing about a desired policy end.

We haven't seen a judicial decision this blatantly crazy and politically motivated that I can think of since Roe. There've been plenty of bad decisions, so I know it's like a negative beauty context, but this one is especially nuts. And it can be argued (I've seen it argued by a lawyer friend) that, though the substance of Roe was more evil, it conflicted with fewer precedents.

This decision therefore shows us a completely lawless court, a court behaving lawlessly while pretending to behave lawfully, a court behaving lawlessly in the name of "not being activist." All words and principles are turned on their heads. It's lies within lies on top of lies. Yeah, that's particularly bad, particularly corrupt, and opens the door qua precedent to a whole new era/level of lawlessness and legal lying.

Jeff, the other thing (no offense) is that some of us care more than others do about limited federal government as being of the essence of the American republic. This isn't _only_ a huge nail in the coffin of originalism, it isn't _only_ a huge nail in the coffin of any pretense of lawfulness or truth-telling or independence from political pressure on the part even of an allegedly "good" nominee to the court, this is also a huge nail in the coffin of the concept of any limitation to federal government power. If you don't care about all that jazz and would be just as happy with a more or less all-powerful "American" federal government (hoping perhaps to use that power "for good"), fine, that's your prerogative. Some of us do. Which is why we're talking about the end of the republic.

Guy,

Since you seem really well versed in these taxation issues, let me ask you this history question. Earlier you said this:

"Because the SCOTUS, in the Pollock decision, had ruled that certain income taxes - on income derived from property - were direct taxes that required apportionment. The Sixtheenth Amendment was passed to remove that apportionment requirement.

Income taxes on such things as compensation for services have always been constitutional, sixteenth amendment or not."

Do I take it from this that if Congress had passed a flat income tax on just income from services back in 1875 (just an arbitrary year) it would have been Constitutional? Also, can you explain in layman's terms what exactly does "apportionment" mean?

Thanks for the help.

"On the road to medicare for all would be numerous attempts to raise the fine for opting out of health insurance in order to strengthen, then preserve, then delay the ultimate and inevitable failure of the system--Supreme Court precedent be damned. Such is the nature of the Left."

Hardly. If the votes are ever there to have an actual tax/penalty/whatever we'll go straight to single payer.

"Distribution cannot be its own justification.."

Sure it can if it captures externalities that otherwise would crash the larger system. Besides all you have done is repeat your former OMG-health-care-for-you-means-less-health-care-for-me-and-we-can't-risk-that-can-we objection with a glass-half-empty example dressed up with irrelevant justice claims.

How about actually tackling the instant case?

Instead of extreme examples designed to distract, please explain how we are absolutely incapable of doing that which every other industrialized nation manages to do at less cost per capita and with equal or better results overall.

"Obviously, everything they say is flexible and open to interpretation."

Chris, your beef isn't with us, it's with the Framers. If they hadn't intended flexibility they wouldn't have included the Commerce Clause, Necessary and Proper, General Welfare, Due Process, Equal Protection, etc.

I find the whole taxation discussion boring and besides the point because it's based on the notion that there is somehow one "right" answer. This is nonsense. We got the Commerce Clause part of the decision because we had more years of Republican presidents than Democratic presidents. Period. We got the taxation part because Roberts' agenda isn't yours. Period.

Relevantly our Andrew E. has proposed a testable hypothesis:

"We are probably no more than 2 years away from total dollar hyperinflation after which budget and trade deficits as we've come to know them will no longer be possible..."

Does anyone believe that he is going to file it away, reexamine it in two years time, and mark it to market? If standard Keynesian economics is continuing to be the best descriptor will he renounce his current beliefs?

Of possible interest,

http://www.cepr.net/index.php/blogs/beat-the-press/another-effort-to-impose-philosophy-on-the-health-care-debate

Al, since you don't believe there is a right answer to constitutional questions and have said so repeatedly, don't bother referring us to the Framers. You've already displayed your Postmodern Legal Interpreter card very prominently, and there's not a single reason why any of us should talk with you as though reason can make any difference. After all, there's no right answer, according to you!

Lydia: "Which is why we're talking about the end of the republic."

Question: Does the Constitution have built-in processes and procedures to restore the republic after it's been subverted?

I.e., given that there are subverters and perverters of the Constitution, are you saying that the subversion is irreparable? If so, why?

Can things not be reversed or repealed?

Just like the hope that Roe v. Wade be repealed, why can't there be hope that other legal monstrosities be likewise repealed?

Isn't there a self-correcting mechanism within the Constitution that "good" people can appeal to and turn to for hope?

Just like the hope that Roe v. Wade be repealed, why can't there be hope that other legal monstrosities be likewise repealed?

I think the history of Roe v. Wade is instructive: Namely, while it is true that later courts _could_ have rolled it back, and while they had numerous opportunities to do so, they haven't.

Now, let's count the ways in which this recent decision is _less_ likely to be rolled back than Roe.

1) Since it doesn't involve a faux constitutional principle that it's okay to murder babies, it will (somewhat understandably) not generate as much controversy and energy in its opponents. It's "just" about giving the federal government more power. I doubt that a single lobbying group will be formed with the express purpose of trying to elect Presidents who will appoint justices who will overturn this decision. We'll be lucky if we can even get the specific legislation itself, Obamacare, repealed by elections.

2) Obamacare will quickly (and by design) become entangled in the very vitals of the nation. Indeed, even though many of its provisions haven't gone into effect yet, the Obamacarians were _already_ arguing that "so much" of it was in effect that it would be too disruptive and "too late" (haha, weren't we smart to seize power and hold a bunch of other stuff hostage?) to overturn it _now_. Over a period of decades this argument will be considered to be unassailable. The principle of stare decisis is more likely to be applied to laws that have far-ranging effects and are entangled with many different aspects of the economy, etc. The Obamacarians will make good and sure that that is the case here; hence it's virtually guaranteed to be upheld long-term by stare decisis and by the principle that it would be "too disruptive" of the country to limit the government's power once again.

Actually, the overturning of bad, even horrible, constitutional decisions by the court isn't based on a principle _within_ the Constitution, as judicial review itself isn't explicitly in the Constitution. What the hope of repealing a bad court decision has always turned on is simply the hope of replacing bad, dishonest jurors with honest and scrupulous jurors who won't be overawed by precedent. But if Roberts himself was so overawed by sheer political pressure and the rhetoric of the media as to write such a monstrosity of an opinion, it's pretty much assured that later appointees will be overawed by the precedent created and by the "disruptiveness" of overturning it and the fear of being called "activist" if they do so.

It seems to me far more likely that the country will fall into economically induced chaos and have to be reconstructed from the ground up than that this precedent will ever be overturned.

Which applies also to Willard Mitty.

It has been amusing watching him squirm about all this. Even though it is almost identical to his own plan ACA is plainly a violation of (mumble, shiny object, denial) important legal principles. Moreover, he is now having to defend against the scurrilous charge that he raised taxes, in Taxachusetts of all places.

Help me out here, folks.

Welcome to the jungle. You just have to learn to shrug off the apocalyptic rhetoric.

Lydia:

I don't see how the very existence of an income tax can be unconstitutional since at least they bothered passing a constitutional amendment to _have_ an income tax.

Which raises the question: Can one amendment violate another?

But, to take aim at it from a completely sideways angle, doesn't the income tax violate the 5th amendment, notably "nor shall private property be taken for public use, without just compensation"?

Isn't our income "private property"? And isn't the income tax, in essence, a confiscation of private property? So, shouldn't the amount of income the government confiscates from us be proportional to some form of "just compensation"? IOW, shouldn't all people be treated equally under the constitution - regardless of income?

Truth Unites... and Divides:

Can things not be reversed or repealed?
Just like the hope that Roe v. Wade be repealed, why can't there be hope that other legal monstrosities be likewise repealed?
Isn't there a self-correcting mechanism within the Constitution that "good" people can appeal to and turn to for hope?

Yes, there is a built-in correction factor to any SCOTUS decision - Congress.

With Roe v. Wade, there is legislation pending in Congress right now to define "personhood" as beginning at conception. That would essentially repeal Roe v. Wade - no justices required. The same thing can be done with Obamacare. That is why it is so important to be politically active and get our representatives elected.

This new tax just accelerates the demise of the republic. Obama has worked chaos into the American system so adroitly that we can hardly take it all in. It is like trying to get a drink from a fire hydrant. The financial meltdown beginning in '08 has left Europe with a $70 trillion debt that they cannot repay based upon $700 trillion or so in derivatives. Our GDP is only $15 trillion. How about the US dollar ceasing to be the worlds reserve currency. This enlarges the problems we have as well. How about our economy as a massive debt bubble and when it bursts, we lose about half of our GDP. Social Security and Medicare will end, one way or the other. If not ended voluntairly, they will destroy the government and economy; an outcome Obama would welcome. The "Ryan Plan" assumes prolonged GDP growth for decades for his plan to work. Not happening. Nuclear war is looming with Russia, China and Islam. What statesman or group of statesmen will address these problems while at the same time, roll back Obamacare and many other government programs that are not in the spirit of limited government?

So, shouldn't the amount of income the government confiscates from us be proportional to some form of "just compensation"?

Or maybe that's how politicians justify corporate welfare and slap-on-the-wrist justice for the rich... it's "just compensation" for all the taxes they pay!!!

Off topic...

I just ran across this: July is Repent of Non-Christians Obama and Romney Month (2 Chronicles 19:2)

He essentialy says tha Obama and Romney are non-Christians so Christians should not vote for them. I'm not sure what to make of his logic, but it raises the question: How much sway should a politician's personal faith have over a Christian's vote?

Lydia said:

Well, yes.

I'm not sure, by your explanation, that you understood the point I was making. Perhaps I phrased my question badly.

Suppose Congress passes a law that does X.
Should it matter, constitutionally, what Congress calls X (e.g. tax or a penalty) or is it the nature of X itself that is important?

For example, if Congress had simply called the ACA provision a tax, would that resolve the question of whether it was a tax or a penalty? Because if it's really that easy to bring something within the taxing power...

Speaking which, I've explained a few times now how easily Congress could make an end run around the Constitution. I may as well ask, for the third time, why should it be permissible for the government to do indirectly what it is forbidden to do directly?

"The problem with Roberts decision is that a tax on inactivity can't possibly be anything but a direct tax. The idea that you can indirectly tax nothing is a contradiction in terms. The very definition of the term requires that the tax be levied *on* something other than person or property.

I'd love to see the "very definition" of direct/indirect tax that he or she is talking about. Courts have been trying to come up with one for many years, without success.

If it is levied on a person for doing nothing, that is the essence of a direct tax....

The provision in question isn't "levied on a person for doing nothing", so that doesn't help us.

Roberts can't just make it a tax-but-not-a-direct-tax by waving a magic wand.

Then it's a good job he did a lot more than that:

"[D]irect taxes, within the meaning of the Constitution, are only capitation taxes... taxes on real estate... taxes on personal property and income from personal property...

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance...” The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax..."

I'd love to see an attempt at an actual counterargument, rather than meaningless dismissals like "unprincipled opinion gerrymandering" or "waving a magic wand."

Jeffrey S. said:

Do I take it from this that if Congress had passed a flat income tax on just income from services back in 1875 (just an arbitrary year) it would have been Constitutional?

Exactly. In fact, that's pretty much what happened:
http://en.wikipedia.org/wiki/Springer_v._United_States

Also, can you explain in layman's terms what exactly does "apportionment" mean?

Apportioned among the states in accordance with their respective populations.

Chucky Darwin said:

doesn't the income tax violate the 5th amendment, notably "nor shall private property be taken for public use, without just compensation"?

Nice try, but the SCOTUS rejected that argument in 1916:
http://en.wikipedia.org/wiki/Brushaber_v._Union_Pacific_Railroad#Holdings

Sorry, Guy, but I think I _gave_ an argument. In fact, I've given one several times. It's quite clear that this is a penalty which is simply "forgiven" for certain destitute people. That doesn't make it something other than a "tax" (if it were a tax--actually, it's a fine) on persons.

What I find hard to understand is how someone can be obviously smart and well-informed and not see how totally unprincipled Roberts is being.

I'll spell it out a little more, and then I'm going to stop because, frankly, it makes me angry to see someone pretending that Roberts isn't being unprincipled. It makes me even more angry when this person isn't admitting to being a flaming liberal (and maybe, G.I., you _aren't_ a flaming liberal). But I'm just not going to keep trying to make you see the obvious:

The fact that people with no income are "forgiven" this penalty doesn't make it a tax _on_ income. As my lawyer friend pointed out, this obviously _isn't_ a tax on income. Just forgiving a penalty levied on individual persons for inactivity in the case of persons with no or very low income doesn't make the tax a tax on income. Moreover, here is the ludicrous statement from Roberts that makes it quite clear that he is being totally unprincipled:

That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.

To my mind, that passage is a reductio ad absurdam in itself. There simply is no such thing as "a tax on going without insurance." Going without insurance simply is not income. If you cannot see that "a tax on going without insurance" is indeed a penalty levied on persons (hence, if one pretends it is a tax, it _must_ be a direct tax), and that this is a blatantly political, unprincipled decision based on stupid, fake arguments that any reasonable child of ten should be able to see through, there's not much more I can say to you.

Frankly, there is no way Roberts comes out of this good. I saw someone on my Facebook feed the other day solemnly telling all of us that maybe he wasn't just being a political animal and believed what he wrote. Okay, then he's delusional and his vaunted brilliance is a joke. Take your pick. But I don't think that. I think he just switched for political reasons and engaged in flaming sophistry to "justify" it. But let's not turn our own brains to mush pretending that sophistry isn't sophistry.

Let me add, too: The fact that Congress could have achieved a *somewhat* similar effect by more indirect, and potentially politically costly, means does *not* mean that Roberts's crazy opinion has broken no new ground.

Tax deductions and credits, for example, are always tied directly to actual expenditure, not to a pre-set "penalty" amount. Had Congress decided to incentivize further purchasing health insurance, it could have passed a law making health insurance premiums, based on actual expenditure up to x amount (but possibly less), actually paid by a taxpayer a credit rather than merely a deduction (or paid with pre-tax dollars). This would be similar to what the tax code presently does with college tuition dollars. At that point we would either go in the hole more in terms of deficit spending, expenditures would have to be cut elsewhere, or taxes would have to be raised. That decision would presumably be hashed out in the give and take of political debate, with actually raising taxes across the board being the politically more costly decision.

However, this would still have left the actual purchase of health insurance voluntary and the credit would still be an incentive. If you bought cheaper health insurance than I did, your credit would be less. And if you were in a pretty low tax bracket to begin with, you might not find the credit worthwhile.

That would indeed be a "no change" situation from the powers previously (before this decision) assumed to belong to Congress. We can debate the constitutionality of Congress's giving such tax credits, but the "penalizing" effect is indirect and does not work in the same way as setting a penalty amount to be assessed on everyone (except those to whom it is magnanimously forgiven) who does not do what Congress mandates that they do.

I believe that Guy I. doesn't understand this and is looking only at indirect effects. From the perspective of constitutional principle and the amount of power granted to the federal government directly to punish any and all behavior it does not like, however, there is quite a difference. Again, as both Sage and I have said repeatedly, it is quite a big deal to give the federal government a general police power to punish by setting fines.

There simply is no such thing as "a tax on going without insurance."

As he's explained many times there are tax credits and deductions for preferred activities. In principle they amount to the same thing as a tax on inactivity.

If you want to call it a fine or regulatory penalty I'm sure Romney will be happy to agree, but "every other species or kind of tax whatsoever, and called by any other name" is still fully applicable to its legality. For some perspective, only 1% of MA residents are paying the fine in order to forgo insurance, so this sound and fury is vastly over-hyped.

Lydia:

Nice try, but the SCOTUS rejected that argument in 1916:

So they've been wrong once before then!

Besides... it's not the "due process" clause I'm citing - it's the "just compensation" clause:

...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

"every other species or kind of tax whatsoever, and called by any other name" is still fully applicable to its legality.

Step2, I will eat my hat if the court decision you are citing there (which Bill Luse discussed above) meant that Congress can fine you for not eating broccoli and call it a tax.

Does it mean nothing to any of you of the "Nothing to see here, folks" school of thought that the so-called "conservative" justices consider Roberts's sudden volte face to be inexplicable and his transparent rationalization of it to be beneath contempt? Or is there just something they are missing? I mean, heck, it isn't as though Tony Kennedy of all people is exactly some sort of member of the Vast Right-Wing Conspiracy.

Lydia said:

If you cannot see that "a tax on going without insurance" is indeed a penalty levied on persons (hence, if one pretends it is a tax, it _must_ be a direct tax), and that this is a blatantly political, unprincipled decision based on stupid, fake arguments that any reasonable child of ten should be able to see through, there's not much more I can say to you.

You are again mistaking invective, misdirection and condescension for argument. I've already told you what you could say to me. For example:

1) I showed that the provision is a tax according to the definition the dissent uses. You could tell me why I'm wrong. [Instead, you spent most of your time explaining that the provision not a tax on income - which is nice and all, but is not an argument I have ever made.]

2) I quoted a specific quotation of the majority opinion. You could engage it, perhaps by completing the following sentences:
'Roberts was incorrect when he said courts had only recognized three kinds of direct taxes because.... '
or
'Roberts' reliance upon the eighteenth century definition of "capitation" is inapplicable because... '

3) You could explain why it should be permissible for the government to do indirectly what it is forbidden to do directly.

Tax deductions and credits, for example, are always tied directly to actual expenditure, not to a pre-set "penalty" amount...

Since when was the Child Tax Credit tied directly to actual expenditures, not to a pre-set amount? (Hint: never.)

(This is far from the only example, by the way.)

***snip lots of stuff that is now irrelevant since Lydia's premise is fundamentally flawed***

I believe that Guy I. doesn't understand...

You were saying?

You have a good point about the child tax credit, and it is also refundable.

But Congress didn't offer a credit, did it?

Again, yes, the method makes a difference. Look, the very lawyer I was quoting earlier said in so many words that there were things that would have been somewhat similar in some effects that Congress could have done that wouldn't have raised the same constitutional questions. They just chose not to, presumably for political reasons. Then Roberts saved their bacon, presumably also for (different) political reasons.

I'm sorry that you don't think the quotation I gave earlier is an argument, but I'm afraid it does make sense to me. How can a pre-named tax amount *on* inactivity be anything but a direct tax? And if this is an indirect tax, what is it an indirect tax *on*?

I'm sorry, but analogies to indirect raising of tax rates through tax credits and deductions just don't amount to an answer to that question.

Procedure matters. Here as well.

I will eat my hat if the court decision you are citing...

In that case, the challenger claimed it was a direct tax while Congress worded it to be a duty. The Court ruled it was an excise tax. You can examine the decision here:
http://press-pubs.uchicago.edu/founders/documents/a1_9_4s13.html

I mean, heck, it isn't as though Tony Kennedy of all people is exactly some sort of member of the Vast Right-Wing Conspiracy.

As a commentator elsewhere put it, Kennedy does whatever the voices in his head tell him to do. He's not part of a conspiracy, but that doesn't mean I will assume his opinion is correct or reasonable.

By the way: My taxes are higher to some extent because people coming out of the army get their college tuition paid for. I don't therefore think that the fact that Congress takes some of the money I pay for taxes and uses it to pay for college tuition for veterans makes some portion of my tax a fine or penalty for my not having been in the military and subsequently gone to college.

Something similar should apply to tax credits, especially refundable ones, that are not determined by actual expenditure. Call them handouts if you will (that might be a somewhat fair assessment), but no one thinks (or at least no one should think) that government handouts are fines on other people for not engaging in the activity for which the handout is given or the government expenditure is made. Not only would such a "fine" be highly indirect, it would also vary (and could vary a good deal) from one person to another depending on his tax bracket and other tax facts about him which determine independently how much tax revenue he generates for Uncle Sam.

Step, having looked at the case I will just reiterate the point made above: An indirect tax must be a tax on something. Even if that case was wrongly decided (which perhaps it was, who knows), the tax was a tax on something--specifically, carriages. Presumably somewhat like (at the federal level) the state license fee I pay for my cars every year, allegedly to defray the wear and tear my cars put on the road. It's a somewhat questionable opinion, it seems to me, but the colonists hadn't been entirely unfamiliar with taxing the ownership of specific goods. (Though I seem to recall, especially on this day of all days, that they weren't too fond of it!) A tax on a person for inactivity is a different type of beast altogether.

Guy Incognito:
By your analysis, since there has been some judicial variance on the definition of "direct tax" and "indirect tax," those terms should instead be treated as if they are completely meaningless, so as to be set by the Court on a whim. Apart from being a prescription for absolute judicial anarchy, it is also offensive from a moral perspective to have democratically passed laws interpreted with no regard whatsoever to the democratic will behind them. Extended to its logical conclusion, your view leaves no judicial principles at all, and while that is certainly a disturbingly common view, it can hardly be considered normative.

If we grant that the direct/indirect decision is based on anything at all, it must be based on the principle that taxes on person or property per se are direct, while taxes on some activity or transaction pertaining to person or property are indirect. The idea that one can *tax* inactivity indirectly is every bit as vapid as the argument that one can *regulate* inactivity as commerce. There's "no there there."

As to your argument, you could advance the same argument for regulating inactivity as commerce as you give for taxing inactivity indirectly, i.e., that there was no precedent that specifically *says* that inactivity can't be taxed. But as a sheer logical matter, there's simply no coherent way to call inactivity "commerce" in a way that makes the enumeration in the commerce clause a meaningful, applicable sentence and no way to construe such a power as "proper" to the concept. Given that *all* the precedent on indirect taxation finds some predicate transaction that makes the tax not levied on person or property per se, given that all the precedent on direct taxation either relates to a tax on person or property per se in the absence of a transaction or errs on the side of calling taxes direct (as in Pollack, which is an outlier anyway), and given that the historical meaning of the term appears to have been exactly that the direct/indirect distinction related to whether the tax was on person or property per se, the same logical argument that Roberts *accepts* in the commerce clause context should have been equally necessary in the direct/indirect tax context. Unless we're just going to throw up our hands and say "direct tax means whatever the judge's breakfast that morning dictates," you have to explain how Roberts can simultaneously accept and reject the logical consequences of the same argument, where the context does not permit any logical distinctions between the two.

I've said elsewhere that Roberts' decision literally violates the law of non-contradiction, and I absolutely mean that. If inactivity and activity are logically exclusive categories, then indirect taxes on inactivity are nonsense in the same sense that commerce regulation of inactivity is nonsense. And it is nonsense in the philosophical sense of a contradiction in terms like a "square circle." If you can indirectly tax inactivity, then the term "indirect tax" has ceased to have any meaning.

An indirect tax must be a tax on something.

You've got a premise that Congress shouldn't tax personal decisions that are "inactive", but that is because you are unwilling to admit the principle of rewarding specific behavior through tax incentives is economically equivalent to penalizing inactivity of the same behavior. But it is economically equivalent. Further, as my own example of alcohol taxes showed, indirect taxes can be used to recover some of the external costs of choices that have a net public expense, even if they cannot be traced to a single individual.

Apart from being a prescription for absolute judicial anarchy, it is also offensive from a moral perspective to have democratically passed laws interpreted with no regard whatsoever to the democratic will behind them.

Says the side that imagines a complete overturn of the law would have been apolitical and restrained. Where is the regard for democratic will in that interpretation?

"..but that is because you are unwilling to admit the principle of rewarding specific behavior through tax incentives is economically equivalent to penalizing inactivity of the same behavior."

That's right, Step2, we aren't. Surely you can see what a contradictory formulation "penalizing inactivity of the same behavior" is. Hint: inactivity is not behavior. (By the way, alcohol taxes are taxes on behavior, not inactivity.) In spite of G.I.'s smug omniscience, Lydia has been making an argument and she's right. G.I.'s mistake can be found in his first comment:

Rhetoric aside, what it comes down to is this: Congress revised the IRS code so that, come April 15th, you have to send more money to the IRS if you don't buy health insurance. Just like you already have to send more money to the IRS if you don't have children, or a mortgage, or whatever of the countless other deductions, credits, exemptions or penalties you care to choose. Politicians can use whatever label they like to sell it to the public and each other but underneath it all - provided you believe that it's your money in the first place, and not the government's - they are all a tax on not having X.

Great comment by Jonathan P.

Step2, I agree that there could have been some partisanship involved had the Court overturned Obamacare - inevitably so, just as there was inevitably some partisanship involved with the Court deciding not to overturn. But that goes with the territory: justices are appointed by partisan politicians, and even when (never, in these days) they try to appoint without over-regard for partisan politics, they cannot avoid appointing men whose ideas and standards for judicial right and wrong have a partisan element.

Nevertheless, the Court could easily have said "Congress called it a penalty, not a tax, they were absolutely free to name it what they wanted to name it, they know quite well the difference between a tax and a penalty because the difference is already enshrined in law of their own making, and we are obliged to honor Congress's choice of names for what they really intended by the words." That would have been a far less partisan approach than some of the arguments used to justify Roberts' theory.

In fact, Roberts made a vast mistake. If the law calls it a penalty but is interpretationally ambiguous because it treats it as a tax, then the law is an ambiguous and defective law AS SUCH, and deserves to be treated as a defective law. One way a defective law is treated is to be overturned, as being too obscure to be constitutionally observable. There are other ways as well. But the problem Roberts has is in judicial principle: a law doesn't become ambiguous because it is called a penalty and then is administered by the IRS. The IRS administers things that are penalties all the time. There has to be a source of ambiguity that makes it doubtful as to what Congress actually means by calling it a penalty, before a judge can interpose his opinion on top of what Congress said, and there simply is no ambiguity in having the IRS handle the penalty. And if there is no ambiguity, the judge is obliged to respect the law as written.

Further, taxes are either (a) related to some kind of wealth - either the getting of wealth (income taxes, excise taxes on oil, lumber, and other natural resources), the having of wealth (such as real estate tax) and the giving up of wealth (including sales tax, gift tax, estate tax, and others), or (b) imposed uniformly on all. That's the constitutional principle. If you want to impose a tax on persons as such, without levying the tax on all persons, you will immediately run afoul of the taxing authority in Article One. This comes from centuries of continental practices of taxes on persons where all sorts of exceptions arose, eventually creating gravely unjust results. Congress didn't call it a tax because it ISN'T a tax.

Step2, do you agree with Roberts that if the law had been a penalty and not a tax, it would have been unconstitutional?

Bill Luse,

I've really enjoyed Guy Incognito's visit to this blog, although I do think he has to try and lay off the snark.

I also think that he's wrong with respect to the legal arguments (mainly because of what Lydia has been arguing with an able late assist from Jonathan P.'s wonderful comment), but right with respect to the economic substance of his argument about tax credits being equivalent to a tax penalty. I just think that when we talk about penalty, we are using the legal definition and he is using the economic definition. You say, "The childless couple is not being penalized for paying the going rate in their bracket. It would be a penalty if that couple were fined above and beyond their tax bracket simply for choosing not to have children." His point (which I think I now understand) is that from an economic standpoint there is no difference between a couple with kids getting a credit and a childless couple not getting the credit. And as I said above (I think to Jeff C.), even if we acknowledge the extra expense of raising kids, we could structure the credit generously enough that it was a net benefit to couples to have lots of kids and in an economic sense a childless couple would be at a disadvantage to a similarly situated couple with kids.

His point (which I think I now understand) is that from an economic standpoint

Justice Roberts is supposed to rule according to the law, not torture the law to fit an economic theory. His decision shows absolute contempt for the distinction between taxes and penalties and all Supreme Court precedence. Johnathan P.'s point is irrefutable: what Roberts withheld from the commerce clause he gave back in spades under the taxing power. As I said elsewhere, I'm having trouble imagining what in the universe of human activity can now be secure against a taxing power whose oxymoronic limit appears to be infinite.

we could structure the credit generously enough...

Well, yeah, we could do a lot of things, but that still doesn't make a tax credit a penalty, unless you think that a single man in the same tax bracket as the childless couple is being penalized because he can't file jointly.

His point (which I think I now understand) is that from an economic standpoint there is no difference between a couple with kids getting a credit and a childless couple not getting the credit.

Given the reality of deficit spending, Jeff S., plus the uniqueness of various tax situations, this is by no means obviously true even economically. We might instead say that the country is going into the hole "more" because of the other couple's credit, not that the childless couple is paying more because of it. And it would hardly be a given that the childless couple is paying the "same amount" more in taxes that a couple with children is getting in credits. How would you decide which other couple, how many "children's worth," to compare them to, anyway? Just how many ever it took to eat up their whole federal tax bill? Twenty, if necessary? But we know that if every couple in the country had thirteen children (or whatever) all else would not be equal and the government would have picked a different child tax credit amount anyway.

Step2:
They are equivalent from the perspective of the taxpayer, but they are certainly not equivalent in the macroeconomic perspective. The fact that the universe of conduct that might be taxed (the tax base) is limited has effects on the response of the markets in all sorts of ways, including particularly saving and spending. Likewise, it encourages rent-seeking behavior among all companies, which worsens the underlying economic uncertainty. The biggest difference is whether the tax is economically government spending (as deductions and credits are) or extending the tax base, the latter of which has drastically different effects on the underlying economy. That is the reason for the *legal* restrictions on Congress's power.

As to giving regard to the will of the people, the People's House deleted the severability clause relative to the Senate bill, and the Senate voted and passed the amended version. That is a clear manifestation that the law was not intended to be passed piecemeal and that the Court was not entitled to assume that the other parts of the law would have been passed if one part was unconstitutional. Rather than violating the principle of democratic sovereignty, it would have been far more activity for the Court to write a law that Congress indicated it would not have passed but for the unconstitutional clause, it was the Court's obligation to strike the entire law if any of it fell.

Here's a fun thought. Now that a tax on unspent income is an indirect tax, why not tax unspent wealth too? Say, if you don't spend your income on solar panels, we'll just take a portion of your house's value. Or if you don't by an approved hybrid car, we'll take a part of your car's value. 401(k)'s value too high? Saving too much? We'll take some of that to pay for people who didn't get to save as much. Don't have the cash? No problem, you can just sell your asset to pay the tax, right?

The more I think about the implications of this atrocious decision, the worse it gets.

Hmmm...does this mean that a ladies' night promotion is a tax on maleness? Or that a senior citizens' discount is a tax on not being 55?

Reminds me of the Monty Python sketch where the bureaucrats are in a meeting deciding what else they can tax. They come to the conclusion that they will have to figure out a way to tax sex, as the only other thing left that's untaxed is using the bathroom, and "you can't tax that!"

Hmmm...does this mean that a ladies' night promotion is a tax on maleness? Or that a senior citizens' discount is a tax on not being 55?

Yep, NM, that's more or less what one argument being made in this thread amounts to. Because, it is conjectured, in order for the business to operate, it must bring in a certain amount of money, so the males are "paying" an unspecified amount "more" to keep the business afloat than they would otherwise have to if the ladies' discount were not being given. At least, that's one way to run the (misguided and misleading) argument. One obvious answer is that this may simply not be true. The business may just be choosing to make less profit in the hopes of getting more customers from its ladies' night. (In the case of the government, they may just be running bigger deficits.) Another obvious answer is that a given man may have some other discount (e.g., being senior citizens). Another is that it is pretty much impossible to tell how much more a given man is allegedly paying to "pay for" the ladies' night discount, which illustrates quite well the entirely indirect nature of this alleged tax on maleness and the fact that that is a confused way of thinking of it. Now, another way to run the confused and misleading argument is literally to say that the male is "paying" as a "penalty" or "tax" the exact amount which is the difference between the cost of his ticket and the cost of a woman's ticket. But this is even worse. For one thing, whatever cost-benefit analysis is being made by the business is based on the assumption that everyone _isn't_ going to get this discount. If everyone could take the discount, the business probably wouldn't give it at all or would make it a lower amount. So it's not like every male customer is prima facie owed the discount and having it taken away from him. When we start comparing the situation of a discount to the incredibly complex tax code it shows up as an even worse argument, because something like a credit will be scaled to, say, how many children you have, so there isn't even a stable target to compare to. Am I being "taxed" the difference between my two (younger) children and someone else with four children or five children? Or eight? Am I being "penalized" for the fact that I didn't have my eldest child later, since there was no child tax credit when she was actually a baby, so I missed a few years? Am I also being "penalized" for having paid off my house early (which I consider to have been a huge benefit to me!) and hence not having home mortgage interest to pay anymore? How do I calculate _that_ "penalty"? And so forth.

Sure messing around with the tax code _is_ unduly complex and _does_ incentivize some behaviors. And ultimately the cost of those incentives and credits, just like the cost of government handouts of various kinds unrelated to taxes, does get spread around somehow and somewhere or other, whether to greater debt or some indeterminable amount of greater taxes for others. All true. But by no means do any such facts make credits comparable to a straightforward penalty for not being in some one (any? all?) of the zillions of possible situations to get a discount on your taxes.

Yep, NM, that's more or less what one argument being made in this thread amounts to. Because, it is conjectured, in order for the business to operate, it must bring in a certain amount of money, so the males are "paying" an unspecified amount "more" to keep the business afloat than they would otherwise have to if the ladies' discount were not being given. At least, that's one way to run the (misguided and misleading) argument.

When you refuse to do something for which there is a credit or deduction, you are being penalized for not taking it. By offering credits and deductions for things it likes, Congress is making some "more equal than others" in terms of duty to fund the treasury. The fundamental difference here between the Ladies Night and tax deductions is that men are not forced to go to a bar, let alone a bar which makes them pay more than women one night a week. Furthermore, one could argue that Ladies Night at least has an advantage insofar as it tends to attract women to the bar/club which is a good thing for single men. It is not a good thing for my neighbor if he rents and is denied the mortgage deduction which I get. He is paying a higher amount of his income (all things being equal otherwise) in tax revenues. The only way he can relieve his burden is to work less or go into debt.

Lydia, there is nothing dishonest about this line of argument. The fact is that the liberals here are right on this one by pointing out to you that the power to raise taxes to any rate (including flat out unjust rates) and then offer deductions if you comply is a form of coercion to engage in those activities which get you the deduction. It is merely less overtly tyrannical because the human brain naturally tends to see any positive in a sea of bad as a good thing. Looked at objectively, deductions and credits fail all economic conservative tests because they pick winners and losers and are a powerful tool for social engineering.

Sure messing around with the tax code _is_ unduly complex and _does_ incentivize some behaviors. And ultimately the cost of those incentives and credits, just like the cost of government handouts of various kinds unrelated to taxes, does get spread around somehow and somewhere or other, whether to greater debt or some indeterminable amount of greater taxes for others. All true. But by no means do any such facts make credits comparable to a straightforward penalty for not being in some one (any? all?) of the zillions of possible situations to get a discount on your taxes.

The mortgage deduction is an excellent example of a deduction which is all but a tax penalty if you refuse to make it an option. Around here, a typical mortgage interest and property tax deduction can be a few tens of thousands of dollars off your AGI. That is very real money if you put yourself in a position to take it. If you choose to rent instead of own, you will have a noticeably higher tax obligation.

Mike T., I'm not going to repeat myself. I've both acknowledged that tax code fiddling incentivizes some behaviors and that those "handouts" or credits or deductions have to be "paid for" somehow, so long as spending remains the same, if only by increasing the deficit. (An option I, of course, wouldn't endorse.) However, the disanalogies between either a government handout or a government tax credit and a specific, pre-named, direct fine on inactivity (which, say what the liberals will, is what the individual mandate amounts to) are numerous, and I have detailed several of them. Here I'll only repeat the indeterminacy of the "penalty" for not being in a position to take a particular tax credit. I've said more about this above. The macro-economic impacts are also different.

And by the way, here's just one more I didn't name: Though our government rarely if ever takes this route, there is one option for offering tax breaks for particular behaviors that does not amount to raising taxes on anyone else: Lowering spending elsewhere. There is literally *no* analog to that possibility, even to the possibility, in a direct fine for a failure to purchase something.

it's the "just compensation" clause

Sorry, that would be the "Takings Clause".

Lydia said:

How can a pre-named tax amount *on* inactivity be anything but a direct tax?

Again, this isn't a tax on inactivity.

And if this is an indirect tax, what is it an indirect tax *on*?...

How about 'having taxable income without having X'?

(where X is something like 'appropriate health care coverage')

I'm sorry, but analogies to indirect raising of tax rates through tax credits and deductions just don't amount to an answer to that question.

They're not supposed to. They're supposed to make this argument:
- Congress already has the power to 'tax inactivity'.
- If the ACA provision is unconstitutional Congress could easily make an end run around the Constitution.
- Congress should not be allowed to do indirectly what it is forbidden to do directly.
- Therefore either both should be unconstitutional or both should be constitutional.

Jonathan P. said:

By your analysis, since there has been some judicial variance on the definition of "direct tax" and "indirect tax," those terms should instead be treated as if they are completely meaningless, so as to be set by the Court on a whim... your view leaves no judicial principles at all

Only if you pretend that Roberts didn't cite these precedential principles:
- [D]irect taxes, within the meaning of the Constitution, are only capitation taxes... taxes on real estate... taxes on personal property and income from personal property...
- Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance...”

As to your argument, you could advance the same argument for regulating inactivity as commerce as you give for taxing inactivity indirectly, i.e., that there was no precedent that specifically *says* that inactivity can't be taxed.

Except that I never made that argument.

Given that *all* the precedent on indirect taxation finds some predicate transaction that makes the tax not levied on person or property per se...

As does Roberts.

William Luse said:

The childless couple is not being penalized for paying the going rate in their bracket. It would be a penalty if that couple were fined above and beyond their tax bracket simply for choosing not to have children.

I think I'm just going to repeat my earlier response to you:

Suppose, instead of the ACA penalty, Congress raises taxes across the board, then offers a credit to those who have health insurance. Identical result.

In that case - if what you say is true - a couple without health insurance is being neither penalized nor incentivized, but simply paying the going rate for their tax bracket. The couple with health insurance pay the same rate, but are then offered a benefit to level the field somewhat due to the added expense of purchasing health insurance. If your argument works, this also would be a straightforwardly a matter of equitability, not of incentivizing desired activity.

In which case, we're all golden, right? Even though it's an identical result.

This distinction is crucial to the dissenters' asserting that the mandate's tax-penalty "introduces a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes."

And again, as I said in my earlier response to you:

According to the dissent: “[A] tax is an enforced contribution to provide for the support of government;"

It's hard to argue that the provision in question isn't an enforced contribution directly enacted to provide for the support of a specific government program.

You need to get your story straight, G.I. In one breath you say that this *isn't* a tax on inactivity. In the other breath you say that Congress "already taxes inactivity" and hence imply that this is a ho-hum moment, apparently because *both* are taxes on inactivity.

How about 'having taxable income without having X'? (where X is something like 'appropriate health care coverage')

Y'know, I don't really give a tinker's damn if you call this "invective" and/or "condescension": If you cannot see that that is sophistry and is not at all what "a tax on" is supposed to mean, I really cannot help you. At this point you're just wasting my time. Since the feeling is no doubt mutual, since you are intransigent, why bother?

Jonathan P. makes an unanswerable point when he points out that for Roberts to say that the commerce clause cannot extend to inactivity but that it is possible to put a penalty on inactivity and call it a tax is simply incoherent:

If inactivity and activity are logically exclusive categories, then indirect taxes on inactivity are nonsense in the same sense that commerce regulation of inactivity is nonsense. And it is nonsense in the philosophical sense of a contradiction in terms like a "square circle." If you can indirectly tax inactivity, then the term "indirect tax" has ceased to have any meaning.

As for your repeated analogy to tax credits, I've already answered it in multiple ways, to all of which you are impervious. At this point that just gets a shrug from me.

I think I'm just going to repeat my earlier response to you

He does that a lot. I've come to the conclusion G.I.'s a robot.

G.I.:
Taxes on *having* income as opposed to taxes on *making* income (gain/loss events), are taxes on personal property, which is a direct tax by those same categories you listed above. Well done -- by categorizing the tax as you did, you just proved why it should have been a direct tax.

Step2, do you agree with Roberts that if the law had been a penalty and not a tax, it would have been unconstitutional?

I disagree with Roberts that it was an unconstitutional penalty.

Taxes on *having* income as opposed to taxes on *making* income (gain/loss events), are taxes on personal property...

I don't know what the difference is supposed to be, especially in light of the 16th amendment which makes income from personal property indirect. If I have a taxable income, isn't that the same thing as making income I pay taxes on?

General Question: If capitation taxes are paid by every person, “without regard to property, profession, or any other circumstance...” does that also mean they are incapable of being reduced for any circumstance (like owning insurance)? This is related to Lydia's point above about the tax being rescinded, is that even an option for capitation taxes?

Suppose, instead of the ACA penalty, Congress raises taxes across the board, then offers a credit to those who have health insurance. Identical result.

No, it isn't. They are still taxing income. Take a person who has no income at all, and lives off his savings alone, taking money out of his mattress for his food, rent, etc. He pays no MORE tax when Congress raises the taxes across the board than he did last year - none. Congress can tax income. That's in the 16th amendment. But if Congress wants a direct tax, it has to do it uniformly on everyone. This is a direct tax (if a tax at all), but it is an unconstitutional one.

GI, Roberts himself rejects your claim that taxing something is legally the same as applying a tax credit to the opposite:

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.

Roberts argues that the penalty is a tax because it is administered by the IRS, it is not administered under the penal provisions of the IRS, and it is limited by income rules - all criteria that make it a tax. But when he argues that it is not a direct tax, he fails to make the case. He argues that it is not a direct tax because direct taxes, like the capitation tax, fall on every head.

Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.”

That's circular. Sure, NOW that the Constitution limits direct tax, a direct tax has to be applied uniformly. The Constitution doesn't permit capitation taxes that are not applied uniformly - which means that a capitation tax can be imagined and planned that DO fall on some and not on others. And in fact that's just what happened in England and France for centuries. A tax, then, cannot excuse itself of being a direct tax merely on account of its being uneven of application.

This thing, if a tax at all, is a direct tax. Unless you are taxing some THING, you are taxing some person. You cannot tax a non-entity, nor a non-condition EXCEPT as it resides in a person. In this case, they are taxing persons, but persons who buy insurance are exempted. Just as, in the old capitation taxes, persons who had titles or other privileged status were exempted. To tax a person who doesn't have insurance is to tax a person. That's direct tax.

Just as, in the old capitation taxes, persons who had titles or other privileged status were exempted.

Oh, this is awesome. The ability to buy health insurance is the new sign of privilege and nobility.

It's a pity we have to tax the peasants to maintain this lavish party of buying insurance protection against a serious medical condition or accident, but what can you do? Wait, you say we aren’t taxing the peasants? My dear Patrician, you are sadly misinformed if you think a proud merchant like myself will support this outrage against the ordained order by treating the dirty masses as ourselves, people worthy of affordable medical care. I beg of you, be reasonable.

Mike T., I'm not going to repeat myself. I've both acknowledged that tax code fiddling incentivizes some behaviors and that those "handouts" or credits or deductions have to be "paid for" somehow, so long as spending remains the same, if only by increasing the deficit. (An option I, of course, wouldn't endorse.) However, the disanalogies between either a government handout or a government tax credit and a specific, pre-named, direct fine on inactivity (which, say what the liberals will, is what the individual mandate amounts to) are numerous, and I have detailed several of them. Here I'll only repeat the indeterminacy of the "penalty" for not being in a position to take a particular tax credit. I've said more about this above. The macro-economic impacts are also different.

I'm not particularly interested in the economics of it, as I repeatedly pointed out that deductions and credits should be unconstitutional as a form of "separate but equal" treatment before the law. Buying a house, having kids and a whole host of other things should not warrant favoritism on tax day. The purpose of taxes is to raise funds, not reward good behavior. Furthermore, there is not even a constitutional basis to claim that Congress has the legal authority to provide exemptions from a duty to pay a tax they have levied against an activity or thing.

What I did say against your example with Ladies Night is that there are important differences that make that analogy fatally flawed:

1. Going to a bar at all is a voluntary act; bars have no authority coerce commerce from customers.
2. Ladies Nights are usually set up to indirectly benefit men by increasing the ratio of women to men to a level that is beneficial to single men.
3. Regular patrons can avoid subsidizing the women by simply going another night.

And by the way, here's just one more I didn't name: Though our government rarely if ever takes this route, there is one option for offering tax breaks for particular behaviors that does not amount to raising taxes on anyone else: Lowering spending elsewhere. There is literally *no* analog to that possibility, even to the possibility, in a direct fine for a failure to purchase something.

Lowering spending does not change the "more equal than others" aspect. Congress has the authority to set rates, but doesn't have the legal authority to favor one man's choices over another. The 16th amendment specifically makes only a direct income tax possible; the rest of the amendments are firmly on the side of equal rights and duties before the law. Arguably even progressive rates are unconstitutional.

Well, Mike, you're just getting into a different legal, moral, and economic question from the question of whether Roberts gave Congress new and more sweeping powers than before in this decision. For purposes of this thread, that's the question that interests me. Your notion that it's inherently unjust for there to be tax breaks for anyone at all is really a different issue. You may think it's the same issue because you think it's _so_ unjust for there to be tax breaks for anyone that, once that injustice is allowed, direct penalties and fines by the federal government don't matter, but that is a very strong claim with which I cannot agree.

I cannot help wondering: Suppose that the penalty were not collected by the IRS but rather by the FBI. Suppose that Roberts hadn't done his little dance and redefined it as a tax but simply had said, "Yes, the federal government has the power to, if necessary, put a lien on your bank account to punish you for not having insurance (or buying a house, or buying broccoli, or investing your retirement funds in Solyndra, or flying a rainbow flag outside your house, or whatever), and this power is found in...uh...the commerce clause." In other words, suppose that you had it put "in your face" (even more than it already is) that this is just giving Congress the power to fine you directly, with a pre-set amount, for whatever it feels like if that activity or inactivity is not protected by some other provision of the Constitution. This is giving the federal government general police power. Would you _then_ see that this is a vast increase of federal governmental power? Or would you keep saying that it's nothing different because it's so unjust already that there are such things as targeted tax breaks? I mean, heck, at that point you might as well says, "Go ahead, let the feds fine me for whatever they please; it doesn't matter. The store was already given away when we set up the food stamp program or federal AFDC, etc. Nothing could be worse than that, so I just don't care about this." At which point, to put it mildly, others will be free to disagree with you strongly.

On a social networking site I saw someone saying recently that he was reading the decisions and his "inner libertarian was crying." That's for sure. If libertarians, at least, aren't outraged by this decision, the spirit of liberty in American really is dying.

I cannot help wondering: Suppose that the penalty were not collected by the IRS but rather by the FBI.

Federal taxes used to be collected by Customs, so the enforcing agency is immaterial. I have few doubts that if it survives legalization, the DEA will have a hand in enforcing excise taxes on marijuana...

Would you _then_ see that this is a vast increase of federal governmental power? Or would you keep saying that it's nothing different because it's so unjust already that there are such things as targeted tax breaks

As previously mentioned, it is a big increase in power, but it was implied in the power to give deductions for behavior. Roberts didn't just pull this out of an orifice the way the Commerce Clause was abused under FDR. Rather, it was built directly on something which was almost universally considered a discretionary power of Congress.

I happen to disagree with Roberts insofar as the easiest way out here would have been to take the Obama Administration at face value and label it as a direct fine since AFAIK it wasn't implemented as a facet of the income tax code. Ergo, it would have been unconstitutional as he would have said "you can't make up your mind on what it is, but it passes the 'duck test' for a direct, non-tax fine in how you implemented ergo you are trying to sneak it in under the Commerce Clause, therefore unconstitutional. GTFO my court room, k thnx bye!"

** What makes Roberts ruling bizarre is the fact that as implemented, Obamacare AFAIK is literally not a tax. Therefore his ruling is damn near the Chewbacca Defense come to life in how much of a non sequitor it is. Whatever points he made that may have been perfectly valid had Obama slipped it directly into the income tax code are irrelevant if Obama labeled it as a fine that "just happens" to be collected the same day as income tax (instead of being in the income tax code and directly affecting deductions, credits and penalties).

Mike, I am inclined to worry about Obama (and future administrations) completely ignoring Roberts and go ahead and treat this not as a tax but as a legal penalty for non-complicit behavior. But I don't understand where you are getting the "as implemented" stuff. Can you point to specific actions, actual facts about what has already been done in this line, that says it is already being treated as a legal penalty for criminal behavior? I didn't think that the administration (and the effective dates) have gotten far enough into the process for anything like that to have happened.

I would love to be a fly on Roberts' wall in 5 or 10 years, when he finally realizes that he left the barn doors wide open for an administration that couldn't give a plug nickel for what the Chief Justice says about it being "a tax", and seeing them go on their merry way treating non-compliance like crime. I would laugh myself silly enjoying the look of dumbfounded surprise - if only I weren't the victim being treated as a criminal, of course, which I fully expect to be.

Will Roberts ever realize the boneheaded error he made? A better question is: when he finally does realize the error, will he apply the Anthony Kennedy approach and - instead of unraveling the vast bureaucracy that grows up on his vote of approval - say we may have made a mistake 10 years ago, but now that it has been the law of the land for 10 years, we have to go with the flow and accept the error as a fait accompli. No going back and fixing old mistakes. Or will he man up to his mistake and say that if the Administration can't treat this as a tax, it isn't constitutional?

Oh, this is awesome. The ability to buy health insurance is the new sign of privilege and nobility.

Step2, your comment is so far off the mark as to be downright offensive. My only point about historically the nobility being exempt is that direct taxes can have _some_ people be exempt from them. It could have been those who are blond and are left-handed, or those who look like Elvis, and the point would have been the same: either way, it's against the Constitution to tax that way. A direct tax CAN be levied on some but not all, but doing so violates the Constitution.

Lydia said:

In one breath you say that this *isn't* a tax on inactivity. In the other breath you say that Congress "already taxes inactivity" and hence imply that this is a ho-hum moment, apparently because *both* are taxes on inactivity.

Only if you misquote and misunderstand me.

The ACA provision is not simply a tax on inactivity (because one has to do something more than be 'inactive' for it to apply.)

But I'm happy to assume it is - for the sake of further discussion of the implications of the decision. In which case it's either a ho-hum moment (because as I said, "the government already, effectively, taxes such inactivities as "not having children") or presents an even greater problem (because Congress has - for many years - made an end run around this prohibition). Your choice.

Personally, I think it's a ho hum moment. But, since you disagree, I would like you to explain (I think this is the fifth or sixth time I've asked) why it should be permissible for the government to do indirectly what it is forbidden to do directly.

(I gave my answer: it shouldn't, and we are left with a contradiction.)

If you cannot see that that is sophistry and is not at all what "a tax on" is supposed to mean, I really cannot help you.

Last time you felt unsure of what to say to me I offered some suggestions, which you then pointedly ignored. In a triumph of optimism over experience, here's how you could help me:

1) You could explain why the combination of (a) earning taxable income AND (b) not having health coverage is not "something".
[At the risk of laboring the point: (a) is clearly something, even if we accept that (b) is nothing. The tax only triggers when both (a) and (b) occur. Something + nothing = something.]

2) You could explain where your claim that "an indirect tax must be a tax on something" came from. I hate for you to be imposing on Roberts a rule that just got plucked out of thin air.

3) Congress has the "power to lay [any] species or kind of tax whatsoever." You could explain why that doesn't give Congress the power to lay a 'tax on nothing'.

4) I showed that the provision is a tax according to the definition the dissent uses. You could tell me why I'm wrong.

5) I quoted earlier a specific portion of the majority opinion. You could engage it, perhaps by completing the following sentences:
'Roberts was incorrect when he said courts had only recognized three kinds of direct taxes because.... '
or
'Roberts' reliance upon the eighteenth century definition of "capitation" is inapplicable because... '

Otherwise, the inescapable conclusion is that if those are the rules, Roberts correctly applied them.

At this point you're just wasting my time. Since the feeling is no doubt mutual, since you are intransigent, why bother?

Good question. I am hoping that, instead of ignoring my questions and arguments, you will engage them and give me good reason to reconsider my positions.

That you continually avoid them gives me pause to think I might be on to something.

William Luse said:

He does that a lot. I've come to the conclusion G.I.'s a robot.

If you're going to ignore my counterargument to you and simply restate your original argument, I'm going to call you out on it.

I'd hate for people to think that the reason you are ignoring important points is because there aren't any good responses.

Jonathan P. said:

Taxes on *having* income as opposed to taxes on *making* income (gain/loss events), are taxes on personal property, which is a direct tax by those same categories you listed above.

Like Step2, I'm not sure that makes the difference you want it to make. In any case I happily change my response to:

How about 'earning taxable income without having X'?
(where X is something like 'appropriate health care coverage')

Step2 said:

General Question: If capitation taxes are paid by every person, “without regard to property, profession, or any other circumstance...” does that also mean they are incapable of being reduced for any circumstance (like owning insurance)?

It doesn't necessarily mean they are incapable of being reduced, just that they would no longer be capitations and, instead, a different kind of tax.

Or, to put it another way, Congress still has the power to lay those taxes, but they would no longer be considered direct taxes that need to be apportioned.

Tony said:

No, it isn't. They are still taxing income. Take a person who has no income at all, and lives off his savings alone, taking money out of his mattress for his food, rent, etc. He pays no MORE tax when Congress raises the taxes across the board than he did last year - none.

Let's take a look at that person's check to IRS on April 15:

With ACA 'penalty' and no health insurance = $0.
With ACA 'penalty' and health insurance = $0.
With tax increase/deduction and no health insurance = $0.
With tax increase/deduction and health insurance = $0.

Identical results.

That's circular. Sure, NOW that the Constitution limits direct tax, a direct tax has to be applied uniformly

I'm not sure, but I think you're saying that Roberts just made up the part about Capitations being paid without regard to circumstance. But that wasn't what happened - this is an Eighteenth Century Supreme Court definition.

No, I am saying that Roberts misapplied an 19th century comment _about_ capitation tax as if it defined capitation tax, when it didn't and wasn't intended to. In the centuries before the Founders wrote the Constitution, England and France saw a number of capitation taxes. Some of them (and eventually most of them) were levied unequally: nobles got a different deal than commoners. In some cases, nobles had to pay MORE. But even in the cases where nobles had to pay more, there were OTHER perquisites by which they sometimes could weasel out of the tax. In some cases, after decades, the only people who actually paid were the commoners. As historical fact, not all direct taxes are applied "without regard to circumstance." He's just wrong, that's all. This isn't a legal analysis, it's just a purely historical fact.

You could explain why the combination of (a) earning taxable income AND (b) not having health coverage is not "something".

Try this one: "Being over three and a half feet tall" (or even "having grown to over 3 1/2 feet tall in the past year") and "not having health coverage." And then having the IRS put an additional couple of lines onto the tax form asking you to verify your height and your health care status. Would this then become an "indirect tax" rather than a tax on persons (specifically, persons who happen both to be over 3 1/2 feet tall, or to have passed the 3 1/2 mark in the past year, and have no health insurance)? In fact, would it be anything other than a fine which, as Mike T. says, just happens to be collected at the same time as income tax? Like you, G.I., I say this only because of a triumph of optimism over experience. The notion that common sense will now kick in does not, on the basis of past evidence, inspire confidence.

Tony has answered your point about capitation tax. Which is also an answer to your question of why Roberts is wrong in his strict delimitation of the only kinds of things that could possibly be direct taxes.

"You could explain why that doesn't give Congress the power to lay a 'tax on nothing'."

A "tax on nothing" would be a direct tax. It certainly doesn't, even if Congress did have the power to levy a "tax on nothing," give Congress the power to lay a tax on inactivity (really, a fine for not engaging in a desired activity) and then treat it as an indirect tax for purposes of apportionment. Both the administration and Roberts want to have it both ways.

In fact, would it be anything other than a fine which, as Mike T. says, just happens to be collected at the same time as income tax?

In terms of the topic of taxation, being over 3 1/2 feet tall is irrelevant. So you've added nothing to nothing.

Which is also an answer to your question of why Roberts is wrong in his strict delimitation of the only kinds of things that could possibly be direct taxes.

I want to note at this point that Roberts using strict delimitation upon other aspects of the law has been perfectly acceptable for his conservative critics, except when he wasn't strict enough. Why do an about-face here?

Step2, your comment is so far off the mark as to be downright offensive.

I'm sorry about that. When you or somebody else manages to accidentally walk right into a caricature it all goes downhill from there.

As historical fact, not all direct taxes are applied "without regard to circumstance."

Okay, but in terms of constitutional meaning i.e. the whole point of this debate, should taxes applied with regard to circumstances be described as another type of tax? Guy Incognito says yes, but I'm open to the notion of a hybrid tax that, because it is also based on income, qualifies as being indirect.

Mike, I am inclined to worry about Obama (and future administrations) completely ignoring Roberts and go ahead and treat this not as a tax but as a legal penalty for non-complicit behavior. But I don't understand where you are getting the "as implemented" stuff. Can you point to specific actions, actual facts about what has already been done in this line, that says it is already being treated as a legal penalty for criminal behavior? I didn't think that the administration (and the effective dates) have gotten far enough into the process for anything like that to have happened.

Tony, all I meant by "as implemented" was that as the law is described in the media. As described, it sounds like there are pieces of truth in what Lydia, Guy Incognito and Step2 are saying. Lydia is correct when she assails how Roberts got to this decision and says that this is a major practical increase in federal regulatory power. I think she is also correct in getting at (I haven't followed this thread 100% because of real life demands) the fact that the ACA does not seem to actually implement the penalty in a way that is legal under this ruling. That is, it is a penalty that was implemented to coincide with the income tax, not be a part of the income tax code which would have given it some grounds for 16th amendment protection. Since Obama cannot, AFAIK, point to the IRS regulations which show that it has some impact on AGI calculations, I cannot fully agree with the liberals in terms of Roberts being insane and chicken#$%^ beyond redemption in his logic, but unfortunately right in his statement about income tax authority.

I think the strategy out of this will entail giving liberals a chance to compromise by shifting "taxes on the rich" from income taxes which hit Bill Gates and the Kadashians equally, to heavy consumption taxes on goods and services that aren't necessary for daily life. In terms of "making the rich pay their fair share," it is far more logical to tax a Ferrari at 35% than the rich individual's income at 35%. A rich income saved and invested in the economy is good for the poor; buying luxury goods is debatable. Therefore the practical political program should include finding grounds to convince liberals that they can have some of what they want, but by making a distinction between simply being rich and extravagant consumption (what really gets most liberals).

In terms of the topic of taxation, being over 3 1/2 feet tall is irrelevant. So you've added nothing to nothing.

Yup-er, and since the penalty for not having health insurance is not a tax _on_ income (as G.I. cheerily, not to say smirkingly, acknowledges), it's irrelevant as well to making this an indirect tax. So that, too, is arbitrarily adding nothing to nothing.

Since Roberts appears to have written most of the minority decision before "changing his mind," what are the odds that someone blackmailed him? I think it would make for a devastating constitutional crisis if a member of the SCOTUS ruled under duress.

Tony said:

No, I am saying that Roberts misapplied an 19th century comment _about_ capitation tax as if it defined capitation tax, when it didn't and wasn't intended to.

My bad. Thank you for the clarification.

Even so, I'm not at all sure how:
"the direct taxes contemplated by the Constitution, are... a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance..."

wasn't intended to mean:
a capitation must be 'without regard to other circumstances' in order for it to be a direct tax contemplated by the Constitution.

Some [capitations] were levied unequally...

[therefore]

As historical fact, not all direct taxes are applied "without regard to circumstance."

Only if you assume that unequal capitations are direct taxes - which is what you are trying to prove.

Lydia said:

Try this one: "Being over three and a half feet tall" (or even "having grown to over 3 1/2 feet tall in the past year") and "not having health coverage."

According to SCOTUS precedent, it's not a direct tax that needs apportionment.

But I guess you're making the argument that would make it a tax on nothing and:

A "tax on nothing" would be a direct tax.

Which is the same as you saying "an indirect tax must be a tax on something".

I asked you earlier for a source for that definition, which you didn't provide.

So I'll ask again where that rule comes from. As I said, I hate for you to be asking me or Roberts to rely upon a rule that you just plucked out of thin air.

Yup-er, and since the penalty for not having health insurance is not a tax _on_ income

Unfortunately I'm with Step2 in thinking that your 'tall tax' doesn't really help the discussion. Back to the ACA provision:

It's not a tax on income. (Something.) Because it's not triggered simply by having income
It's not a tax on 'no healthcare'. (Nothing). Because it's not triggered simply by not having healthcare.

It's only triggered by the combination of income AND 'no healthcare'. So it has to be a tax on the combination of "income and 'no healthcare'"

Even in the light most favorable to you this remains:
something + nothing = something

Only if you assume that unequal capitations are direct taxes - which is what you are trying to prove.

Ahhh, no. Sorry. You need to read up on the history just a bit. Capitation taxes are the quintessential example of direct taxes. The leading, most pristine, most certain, most exemplary type of direct taxes. What we mean by "direct tax" slides alongside of what we understand a capitation tax to be like, though other (non-capitation) taxes can be direct taxes, (and need not be uniformly apportioned either), such as the real estate tax.

But capitation taxes had for centuries been applied non-uniformly, according to circumstance or criteria. These taxes were regularly called capitation or poll taxes, EVEN THOUGH they were subject to conditions. That's the prior experience leading up to the language in the Constitution. In order for the Framers to have meant "only those capitation taxes that are applied without conditions" would be to force the word into a usage that was not the ordinary, regular usage at the time. And we know well from jurisprudence principles, judges are required to assume legislators used words in their ordinary sense unless they indicate they are crafting or borrowing a special sense. And the Framers did nothing of the sort. To be a non-uniformly applied capitation tax is still to be a capitation tax, and is still to be a direct tax as used by the Framers. Thus, nothing about "non-proportionate" jumps it out of _direct_tax_ characterization.

Quick question:

If the Obamacare penalty is a "tax", then why don't the exemptions given to specific corporations by the Obama administration violate the Uniformity Clause?

There is some light in the darkness.

As Randy Barnett observed over at SCOTUSblog (on the day of the decision):

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.” Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power. [Emphasis mine]

From what I've heard, progressives are most fearful of what that last sentence implies - that a new and enforceable spending limit precedent has been set.

It's not all bad.

Chucky Darwin said:

If the Obamacare penalty is a "tax", then why don't the exemptions given to specific corporations by the Obama administration violate the Uniformity Clause?

In order for that clause to even apply the tax must be a duty, impost or excise. I'm not sure anyone has suggested that be the case.

Tony said:

In order for the Framers to have meant "only those capitation taxes that are applied without conditions" would be to force the word into a usage that was not the ordinary, regular usage at the time.

So how to explain a considered Supreme Court opinion, written less than ten years after the adoption of the Constitution, which conclusively and unequivocally states the opposite:

"[D]irect taxes contemplated by the Constitution, are... a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance..."

"As all direct taxes must be apportioned, it is evident that the Constitution contemplated none as direct but such as could be apportioned. If this [tax] cannot be apportioned, it is, therefore, not a direct tax in the sense of the Constitution."

The Justices even argued that "some taxes may be both direct and indirect at the same time" (which may be the case with the ACA provision) and endorsed the notion that Congress should not have to apportion such taxes.

Tony and Lydia want Roberts to replace the SCOTUS' own precedent with rules that have no foundation in Constitutional or judicial history. Rules that just happen to coincide with their own self-interest. A justice creating a rule out of thin air, to support a desired political outcome, would be a textbook example of judicial activism.

Guy, "capitation tax" had a vastly more clear and certain meaning than the term "direct tax", even at the time in 1787 and 1796. Everyone knew examples of capitation taxes. "Direct tax" was more of an abstraction.

I finally read the entirety of the Hylton vs US decision (1796). What is more certain than anything else is that the justices who opined were not themselves absolutely certain of what the Constitutional framers intended by "direct tax", and even less certain of the ramifications thereof. They knew that ONE of the reasons for the rule was that if you tax land according to acreage (which is a legitimate option generally) then the unpopulated large southern states like Georgia would be bankrupted overnight. So as a compromise position the Framers restrained the general taxing power so that couldn't happen. The justices repeatedly express uncertainty:

The argument on both sides turns in a circle; it is not a duty, impost, or excise, and therefore must be a direct tax; it is not tax, and therefore must be a duty or excise. What is the natural and common, or technical and appropriate, meaning of the words "duty" and "excise" it is not easy to ascertain. They present no clear and precise idea to the mind. Different persons will annex different significations to the terms.

Some difficulties may occur which we do not at present foresee. Perhaps a direct tax in the sense of the Constitution can mean nothing but a tax on something inseparably annexed to the soil -- something capable of apportionment under all such circumstances.

If were to rely on Hylton for indications of certainty about what the Framers meant by "direct tax", we would be in defiance of the justices' own sentiments.

Further, Justice Patterson made an out-and-out logical error in his analysis, one that (hopefully) would not be repeated these days:

For the term "tax" is the genus, and includes 1. Direct taxes. 2. Duties, imposts, and excises. 3. All other classes of an indirect kind, and not within any of the classifications enumerated under the preceding heads. The question occurs how is such tax to be laid, uniformly or proportionately? The rule of uniformity will apply, because it is an indirect tax, and direct taxes only are to be apportioned. [my emphasis]

In fact, the Constitution says direct taxes must be laid proportionately, and "duties, imposts and excises" must be laid uniformly. It did not say that ALL taxes other than direct taxes must be laid uniformly, and Patterson himself specifies class 3 as those that are not direct taxes that are not duties, imposts, and excises. So, by the explicit language, the Constitution is silent about whether class 3 must (or may) be taxed by proportion or by uniformity. Patterson says "direct taxes only are to be apportioned", but the Constitution doesn't say that. It is logically legitimate (according to the language) for objects in class 3 to be taxed by proportion, since they are not duties, imposts, and excises. (Justice Iredell (see below) corrects the error, but then makes a preferential _assumption_ in the same line.)

If it can be considered as a tax neither direct within the meaning of the Constitution nor comprehended within the term "duty, impost or excise," there is no provision in the Constitution one way or another, and then it must be left to such an operation of the power as if the authority to lay taxes had been given generally in all instances, without saying whether they should be apportioned or uniform, and in that case I should presume the tax ought to be uniform, because the present Constitution was particularly intended to affect individuals, and not states, except in particular cases specified. And this is the leading distinction between the articles of Confederation and the present Constitution.

As all direct taxes must be apportioned, it is evident that the Constitution contemplated none as direct but such as could be apportioned.

If this cannot be apportioned, it is therefore not a direct tax in the sense of the Constitution.

From Justice Iredell becomes more apparent an IMPLICIT assumption about the practical effect of various tax schemes - as of 1796 when they actually got around trying to tax, not in 1787 when they were trying to ditch the Articles. There is an apparent clarity, by this time in 1796, that was not as clear in 1787, about trying to tax people other than by uniformity: it don't work. In 1787 they were working off the Articles of Confederation where Congress could only levy the states themselves, not the people. In that scheme, the levies were often not paid, and when paid they were paid at atrociously inequitable rates from one state to another. They knew that Congress needed to be able to tax people instead of states, but they didn't want to allow a tax on land as above uniformly by acre (nor a tax on slaves that counted each slave - the northern states would get off scott free). By making such tax on land and on people (including 3/5 of slaves) proportionate to representation, they avoided these disasters.

As a result of the quickly manifest difficulty of taxing anything ELSE according to apportionment, Iredell makes the assumption that anything that can be taxed by uniformity should be so taxed,

and then it must be left to such an operation of the power as if the authority to lay taxes had been given generally in all instances, without saying whether they should be apportioned or uniform, and in that case I should presume the tax ought to be uniform,

and thus anything that CANNOT be taxed by proportion should not be considered to fit the bill of "direct tax". But obviously he is reading into the Constitution what isn't there, that directly proportioned taxes are really problematic: effectively what he means is that any legitimate, acceptable tax that is a direct tax must be capable of being taxed by apportionment, because everything that can be taxed by the rule of uniformity ought to be taxed that way and therefore should not be taxed proportionately. He essentially begs the question of what, actually, is meant by "direct tax", by assuming that apportionment and uniformity are the only options, and that the rule of uniformity is constitutionally the preferred mechanism applicable in all cases but those where apportionment must apply. It is indeed the preferred mechanism, but that preference registers in practicality, it is not found in the Constitution. Effectively, he is circular in analyzing direct tax.

At the time of Hylton, they were absolutely sure that a tax on persons (capitation or "poll") and a tax on land itself would be direct tax. They were unsure anything else would fit the bill, though they could conceive of the possibility:

What are direct taxes within the meaning of the Constitution? The Constitution declares that a capitation tax is a direct tax, and both in theory and practice a tax on land is deemed to be a direct tax. In this way, the terms "direct taxes" and "capitation and other direct tax" are satisfied. It is not necessary to determine whether a tax on the product of land be a direct or indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered as the land itself; it makes part of it or else the provision made against taxing exports would be easily eluded. Land, independently of its produce, is of no value. When the produce is converted into a manufacture, it assumes a new shape; its nature is altered; its original state is changed; it becomes quite another subject, and will be differently considered. Whether direct taxes, in the sense of the Constitution, comprehend any other tax than a capitation tax and tax on land is a questionable point. If Congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the states in the Union, then perhaps the rule of apportionment would be the most proper, especially if an assessment was to intervene. This appears by the practice of some of the states to have been considered as a direct tax. Whether it be so under the Constitution of the United States is a matter of some difficulty, but as it is not before the Court, it would be improper to give any decisive opinion upon it. I never entertained a doubt that the principal, I will not say, the only, objects that the framers of the Constitution contemplated as falling within the rule of apportionment were a capitation tax and a tax on land.

It is incontestable that historically capitation taxes had (in Europe) been levied with regard to circumstance (i.e. not in proportion to population). In Hylton, the justices are certain that they don't want the taxing authority to be forced into apportionment where that would be an irrational way to tax, and they are uncertain that taxing carriages are direct taxes, so they cook up (much in the vein of the compromise give-and-take by which the "direct tax" language was drummed up to begin with) a scheme to express an assumption that "direct tax" must be taken as narrowly as possible and exclude things that can be taxed by uniformity. The so-presented "if and only if" theory that a tax is a direct tax if and only if it can be applied solely by proportion is a cooked-up scheme that creates, rather than interprets, meaning out of thin air - somewhat in direct contradiction to historical practice of capitation taxes that were not levied by apportionment. Since neither Congress nor anyone else was worried about a disproportionate capitation tax, that possibility was left out of the consideration. So, even though it was more certain that some direct taxes need not be proportionate to be direct, they decided to define direct by way of apportionability.

For a different sense of "direct tax", try this website:

http://www.utexas.edu/law/faculty/calvinjohnson/directtax.pdf

That "direct taxes" was virtually synonymous with "internal taxes".

A third sense of "direct" is taxes levied not through the states, but bypassing the states altogether and getting at the people (or their income or goods). The "duties, imposts, and excises" were levied mainly on the passage of property into and out of the country.

Oh, and to prove the point yet again, with the Hylton decision and Justice Iredell's own words:

"[D]irect taxes contemplated by the Constitution, are... a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance..."

The immediate history of direct taxes in the states includes states laying capitation taxes by profession, as well as by other categories or circumstance. Thus, when Iredell says " comtemplated by the Constitution" either he means "the acceptable type of direct taxes, the ones that will pass Constitutional muster", not "what the Constitional framers meant by the expression 'direct tax' " or he is being completely circular and rejecting existing usage.