I’ve been reading the “The Roberts decision is not as mad and bad as you think” essays this evening. I offer you this by Joshua Hawley, this by Paul Rahe and this by Timothy Dalrymple. A positive way of looking at today’s SC decision is to say that we never really want, as conservatives, to depend on Supreme Court decisions about law, anyway. Using the courts to eliminate laws we don’t like is not the right way to play politics in America. That’s what the other guys do.
So let’s look at the Roberts decision like this; he is not saying that Obamacare is good law or even good policy, in fact he strongly suggests it is not. He is saying that the individual mandate is a faulty way for Congress to tax people and that what it does is tax, but without calling that tax a tax. Congress has the power to tax, no doubt about it. However, taxing is politically unpopular. This, of course, is why the last Congress refrained from calling for taxation for national healthcare reform. From Dalrymple, “Roberts’ decision will press new social welfare initiatives out of the commerce clause and into the tax code — and passing a new tax is much more difficult as a political matter than passing a new regulation.” From Hawley, “Making the mandate a tax has at least one other effect. It makes repeal easier. Now that the mandate has been deemed taxation, it can likely be jettisoned through use of the reconciliation process — meaning the Senate will need to muster only a bare majority for repeal, not 60 votes.” From Rahe, “In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.”
And that’s the good news. I hope those guys are correct about this.
June 29th, 2012 | 5:18 am
I guess I don’t see this at all. Doesn’t this decision really mean that Congress can pass something awful by saying it’s NOT a tax, and rely on the courts to uphold it because it IS a tax?
June 29th, 2012 | 5:23 am
It’s still my understanding that tax-related stuff is easier to change than non-tax stuff through the budgetary process, so the GOP may be able to gut the law, and move to an individual-based insurance system, fairly quickly without fear of filibuster, by killing the mandate and shifting tax incentives for insurance from employers to individuals. Then a President Romney can use EOs to grant blanket waivers to all individuals, employers, and insurance companies as need be to encourage HSA-style plans for all. (given Obama’s immigration action, this can’t possibly raise any objection on the left, right?)
June 29th, 2012 | 6:00 am
Yes, I realize the GOP won’t do any of the things I suggest, but a guy can dream…
June 29th, 2012 | 8:56 am
I want these guys to be right, as otherwise, this is all too depressing for words. I do not see how the Supremes can rule on legislation by saying it doesn’t say what it says it says, redefining terms like this, and then NOT throw it back at Congress to fix because the law is not written in any way that makes sense according to the Constitution. If this is a tax, then Congress has to say it is a tax or the whole thing is invalid. Saying we are looking at lousy legislation that would be unconstitutional unless we look at it sideways and squint a little makes little sense to me, but then, as Hawley says, I’m not looking at the decision as constitutional politics.
June 29th, 2012 | 9:04 am
This kind of politics, “Did Chief Justice Roberts save the Supreme Court?” The implication is that the court uses the Constitution to play politics, by the common perception.
The proper way to discern the common perception of US politics is through election of legislators. See you in November.
June 29th, 2012 | 9:27 am
Thanks for pointing me to these posts, Kate. Let me add one more to the list (I’m afraid I don’t know how to link…) Sean Trende over at RealClearPolitics finds plenty of silver lining in Roberts’ opinion when taking the long view, especially when it comes to his curtailing of Congress’ power under the commerce clause.
But to focus on the more narrow, partisan question for a moment–how can Romney make use of Roberts’ decision? It strikes me that in clarifying Congress’ authority under its TAXING POWER to pass ObamaCare, something like the following argument could prove effective:
Our country took shape while we were engaged in a bloody war in defense of the principle that taxation without representation was unjust. The Constitution vests the power to tax in a body composed of representatives of the people. The Court has made clear to us that the mandate is a tax. If the people do not want this tax, and their representatives will not listen, then it is left to the people to elect new representatives who will do so.
Just pound this in at every stump speech. I’m probably naive to think that the “if you don’t like it you have to do something about it” line will amount to much, but I don’t see how it can hurt to try. The Federalists achieved a great deal by appealing to the prudence and wisdom of the people during a moment of great national importance. 2012 could be viewed as a similar juncture in our politics, and Romney should be all about drawing this to the attention of the American people, reminding of their wise decisions at critical junctures in the past, and making sure that they realize a vote for him and the Republicans is the wise and public-spirited vote this fall.
June 29th, 2012 | 10:20 am
Thank you, NotD. “The Chief Justice’s Gambit” I think we were all surprised by the decision. We all thought that we had a right not to be forced by government not to purchase something. It seems like an essential liberty. If the federal government decided that identifying us would be easier if we had our SS numbers tattooed on our foreheads and forced us to pay for the tattooing, calling it a tax, who is to say no? Maybe not tattooing. How old-fashioned. Instead, say, implanting a computer chip with all of our vital information, including medical records, for our good and safety and the ease of law enforcement. It seems to me this decision makes that kind of thing a little easier. Given recent events, a president could declare it necessary by executive order. What’s law, but what the party in power says it is?
Congress passed a mostly empty law. We couldn’t find out what it was until after the fact, but that’s all right because basically what happens in reconciliation all the time. Short game, long game, I’m all for limiting the use of the Commerce Clause, but opening out a new avenue of limiting liberty doesn’t really help us, does it?
June 29th, 2012 | 2:08 pm
I read this question somewhere and can’t remember where but, I think it brings up a good point:
“Would you describe an annual levy on uncultivated land as a tax or a penalty?”
We can ask how the Chief Justice could do this to us…doesn’t he know we own our bodies!
Well, isn’t the answer (like the the Civil Codes of Europe) “No.” Because such a view leads to the very “My Body, My Choice!” mantra that so many American conservatives are against?
The Liberal push, going back to Rosseau and the French Revolution was to allow the state to have the full possession of each and every citizen, right? Liberté, égalité, fraternité isn’t consistent if it excludes the body. So, for us liberals or post-liberals, we should cheer this consistency, right?
Now, going back to that question:
“Would you describe an annual levy on uncultivated land as a tax or a penalty?”
I can see, in light of our Western individualized liberalism, how our government which claims authority in health, ecology and security could rightfully claim that an unmaintained body is like like a piece of uncultivated land and it is copacetic to tax our neglectful behavior.
June 30th, 2012 | 8:44 am
I thought the penalty (tax) was for not carrying health insurance. I agree that penalties are likely to accrue if everyone goes on some government funded program like Medicaid or Medicare, simply to keep the astronomical costs down.
In your analogy the unmaintained body is not like uncultivated land, but like badly used land. There is a parallel. Local small gas stations have gone out of business because they could not afford to pay the million or more dollars required to dig up old gasoline tanks and replace them or fill in the pits. Usually, corporate entities come in and take over the property, either gas station chains or others like the big drug store chains. At least one old gas station owner in our area had to declare bankruptcy because no one wanted the costs included in developing the property as the EPA would allow. That family lost everything trying to comply with the regulations.
What will government do to the person who doesn’t diet or exercise or stop smoking or stop drinking? Look at cigarette and alcoholic beverage taxes designed to slow consumption.
Anyway, I don’t really think it matters what any individual calls your penalty or tax, what the law calls it is a tax. That raises another taxation issue; if we want green space, more trees, higher property values, etc., why don’t we stop taxing fallow ground?
August 17th, 2012 | 12:43 am
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