Implications of the new “tax-mandate”

posted at 6:41 pm on June 28, 2012 by J.E. Dyer

So, this is how I understand the Supreme Court decision on ObamaCare.  Congress wrote an individual mandate – to purchase approved health insurance – into the law.  President Obama spoke with great certainty of the provision being a mandate, and not a tax.  Congress didn’t write the mandate in words that would make it a tax.  The description of the provision doesn’t fit that of a tax.  The provision is that you are required to buy something from a commercial vendor – i.e., not send revenue to the government, which is the exact definition of what a tax does – and that you are required to do so if you fit a certain income or employment profile; if you don’t fit the profile, you aren’t required to make the purchase; but if you do fit the profile and fail to make the purchase, you will be fined.

The Supreme Court decided that that’s a tax.

This is what a tax now looks like?  This is an open invitation to “tax” via whatever mandate sounds good to you.  What sort of unequal-before-the-law mandate would not fit this definition of a tax?  Congress can do anything it wants, by the logic of this decision, with the judicial precedent set that levying mandates equals using the power to tax.

Let’s mandate that every adult in America with an income over $80,000 a year has to buy a Chevy Volt or pay a fine.  Make it a 5-year recurring requirement, with the vehicle selected according to the preferences of environmentalists and unions.  Use the IRS to gather the necessary data and enforce the requirement.  It’s just a tax – why not?

Why can’t Congress tell us the size of house we are allowed to buy, require us to buy it, and fine us if we don’t?  Congress would just be taxing us by doing this.  Why can’t Congress mandate that we pay for two weeks of vacation at the tourist hotspots approved by Congress, and fine us if we don’t?  Why can’t Congress order us to pay for college and fine us if we don’t?  Buy furniture, buy certain types or brands of food, use a certain minimum amount of electricity or natural gas; get tattoos, buy a minimum amount of clothing each year – or buy only a maximum amount of clothing, and use only a maximum amount of electricity or natural gas – why can’t Congress require any or all of these things via a Tax-Mandate?

This is a very serious question.  If nothing in the US Constitution or legal precedent can be held to stop Congress from levying an unequally applied health-insurance purchase mandate, then what could stop Congress from levying any other unequally applied purchase mandate?  The same things that would stop a lawn-care or makeup purchase mandate should have knocked down the health-insurance purchase mandate.

It is deeply saddening to see the torture of our law and our idea of law in this instance.  Congress did not, in fact, write a tax; Congress wrote and intended to write a mandate.  SCOTUS has done great harm by so dangerously enlarging the effective definition of a “tax” – and by assuming the privilege of telling Congress what Congress actually did when Congress meant to frame a mandate.  The difference between purchase “mandate” and “tax” is a very real one from every perspective of government and law, and SCOTUS has irresponsibly elided them.

I say the court did not have the constitutional power to do that.  For the purposes of enforcement and politics – in terms of their meaning to our lives – the two things are obviously different.  They are validly separate categories, and it is overriding reality and the common sense of the people to decide that the one is to be interpreted as the other – and will therefore be treated as the other in terms of Congress’s constitutional powers.

If this decision was to be made at all – that a mandate is a tax, and Congress is empowered accordingly – Congress should have made it.  This transformational decision about definitions and distinctions in the law wasn’t for the Supreme Court to make.  A better approach for the court would have been to accept that Congress intended to write a mandate, and rule – on the basis expressed in the majority opinion itself – that Congress doesn’t have that power.  The court could have added that if Congress wanted to write a tax, it could do so.

A bulwark for our constitutional liberty and rights has been smashed.  Taxes do not involve commercial-purchase mandates, and individual purchase mandates, if they are to be implemented at all, belong to the states.  If we do not abide by those definitions and limits, then there will be no limit on what SCOTUS will say the Congress can “tax-mandate” out of our wallets.

J.E. Dyer’s articles have appeared at The Green Room, Commentary’s “contentions,Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.

This post was promoted from GreenRoom to HotAir.com.
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I think the bill did originate in the House. They just substituted the body from the Senate into another bill, which they can do.

txmomof6 on June 28, 2012 at 8:12 PM

It did. The Senate gutted out HR 3590, which was some junk bill from the House about first-time home buyers credit. They put ObamaCare into that as an amendment to the shell and then the House voted on that exact language (which they didn’t want to do, hence all that crazy DemonPass talk, the Stupak fake amendment talk and the like).

ThePrimordialOrderedPair on June 28, 2012 at 8:15 PM

Everyone has a price I guess

tomas on June 28, 2012 at 8:14 PM

I think Robert’s just exposed his political ideology to the entire country. People up till now thought he was some kind of conservative. Looks like he’s fond of social engineering, like the rest of the progressives.

Dr Evil on June 28, 2012 at 8:19 PM

J.E. Dyer on June 28, 2012 at 8:12 PM
Do you believe that with an engaged citizenry, Congress will enact such legislation? Truly? Politicians are the laziest scum of the earth. You are correct, repealing this law is not enough. . We have to be vigilant from now on and not let this happen again. If we become complacent we get what we deserve.

txmomof6 on June 28, 2012 at 8:20 PM

That’s fine. But a 5-4 ruling that 0bamacare is unconstitutional would have done our work for us, and made the socialists mad enough to cheat in force come November.

I think the man is that smart.

cozmo

Please, just stop. We have enough tinfoil conspiracies around here as it is.

We do! By amending the Constitution. The atrociousness of this idiotic ruling is one of the best reasons I have seen for decades to start the amendment process.

J.E. Dyer

Good luck with that. Even if such a thing had any chance whatsoever of happening, what difference would it make? All you’ll have then is a new, amended constitution that the supreme court will ignore instead of the current version. The problem isn’t the constitution, the problem lies with those who refuse to do the job they’re supposed to do.

xblade on June 28, 2012 at 8:21 PM

Can this new right to mandate through taxation trump other rights? Can they now “tax” offensive speech?

Rancher on June 28, 2012 at 8:23 PM

U.S. Constitution 1789-2012 R.I.P.

Who is John Galt on June 28, 2012 at 8:23 PM

Can this new right to mandate through taxation trump other rights? Can they now “tax” offensive speech?

Rancher on June 28, 2012 at 8:23 PM

Bill of Rights still applies to tax laws

txmomof6 on June 28, 2012 at 8:25 PM

LaserBeam on June 28, 2012 at 7:38 PM

Koa on June 28, 2012 at 7:39 PM

Thank you.

Fallon on June 28, 2012 at 8:26 PM

xblade on June 28, 2012 at 8:21 PM

Aw sweetie, things lookin’ too tough for you?

Can’t say I like the Longhorns…
J.E. Dyer on June 28, 2012 at 8:15 PM

We all have our crosses to bear.

Do you believe that with an engaged citizenry, Congress will enact such legislation?
txmomof6 on June 28, 2012 at 8:20 PM

Evidently, some people think they will.

cozmo on June 28, 2012 at 8:26 PM

Bill of Rights still applies to tax laws

txmomof6 on June 28, 2012 at 8:25 PM

Just as it applied to random stops and searches on the weekends because MADD made some stupid arguments and no one wanted to look “mean” …

Don’t hold your breath. The right to not be taxed for doing nothing is as far as you can go. Once that’s accepted, nothing is out of reach.

ThePrimordialOrderedPair on June 28, 2012 at 8:30 PM

…told my daughter that this morning. She’s peace….peace….peace…all the time. Told her and her children will be lucky to own anything in the future.

skeeterbite on June 28, 2012 at 7:38 PM

When the doors of socialism swing shut, you and your descendants stay on the side you were on when it happened. That’s why so many of the ultra rich are liberals-leftists-outright Marxists. Socialism is a fantastic deal for the ruling elite.

I feel bad for people with children today. Maybe some technological breakthroughs will pluck the younger generations out of the morass the baby boom generation has pushed them into. I hope so. Otherwise… it looks pretty bleak right now.

Gilda on June 28, 2012 at 8:33 PM

I think Robert’s just exposed his political ideology to the entire country. People up till now thought he was some kind of conservative. Looks like he’s fond of social engineering, like the rest of the progressives.

Dr Evil on June 28, 2012 at 8:19 PM

Roberts is a collectivist statist.

farsighted on June 28, 2012 at 8:35 PM

Implications of the new “tax-mandate”

Taxing my behavior.

Taxing my non-behavior.

Despotism.

petefrt on June 28, 2012 at 8:36 PM

I say we make full use of Citizens United, which Roberts upheld again this week and WIN IN NOVEMBER!!!!!!!!!

txmomof6

We can and should do this of course, but here’s the sad reality….Obamacare is most likely here to stay, even if we win in November. This battle was lost in November of 2008. Best we can hope for now is to get rid of Obama and hopefully keep things from getting even worse.

xblade on June 28, 2012 at 8:36 PM

It seems to me that this “tax” would fall into the constitutional category of a “direct tax”, and as such would be prohibited by Article I of the Constitution.

Article I, Section 2, Clause 3:

Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers…

Article I, Section 9, Clause 4:

No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.

The exception to this would be the Sixteenth Amendment, but it only applies to taxes on income:

Sixteenth Amendment to the United States Constitution
From Wikipedia, the free encyclopedia

The Sixteenth Amendment (Amendment XVI) to the United States Constitution allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results. This amendment exempted income taxes from the constitutional requirements regarding direct taxes, after income taxes on rents, dividends, and interest were ruled to be direct taxes in Pollock v. Farmers’ Loan & Trust Co. (1895).

Text

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The ObamacareTax surely doesn’t fall under the Sixteenth Amendment, so how does it get past Article I?

I wish crr6 were here to explain this to me!

topdog on June 28, 2012 at 8:38 PM

1. Congress’s power of taxation shall not extend to compel any person or entity to engage in commerce.
2. Congress may not regulate the citizens of any state in their right to produce, buy or sell any good or service.
3. Congress may not infringe upon the right of any individual to enter in to a mutually agreed contract.

Did you or did you not understand that the commerce clause isn’t the problem in this case? We just had a 9 to 0 opinion that the mandate is not allowed under the commerce clause.
What you are looking for is a law that prevents congress from assessing taxes based on circumstances other than income — something we really need.

Count to 10 on June 28, 2012 at 8:40 PM

Taxing my behavior.

Taxing my non-behavior.

Despotism.

petefrt on June 28, 2012 at 8:36 PM

Yes, which is why we need a constitutional amendment setting explicit limits on taxation.

Count to 10 on June 28, 2012 at 8:44 PM

xblade on June 28, 2012 at 8:36 PM

Battles are never won by those who give up, xblade. Romney isn’t someone who will rectify the US with our Constitution, but if Congress repeals Obamacare, I believe he’ll sign it.

I agree very much with txmomof6 that engagement is our only option, as citizens. We spent the last 60, 80, or 100 years, depending on your reckoning, letting statism creep up on us, accepting bad programs and dangerous laws because we felt invulnerable. After all, we had a Constitution and a polity committed to liberty and God-given rights. As long as the cost didn’t interfere with our daily lives, it seemed too hard to most people to get engaged and fight the statism off.

The chickens have come home to roost. No government can be trusted with the power we have given ours. We can’t just buy peace from the left anymore by handing them money. They want our spirits and everything we have, and they won’t be satisfied with less. Roberts has given them the way to come after it.

A peaceful confrontation at the ballot box in November is what is indicated, for now. But that won’t be enough, not by a long shot. We will have to postpone other goals in our lives — those of us with a taste and talent for politics — and get in the arena.

Not doing that is the one thing that would guarantee we will lose.

J.E. Dyer on June 28, 2012 at 8:48 PM

I do not know how many times I have to keep saying this, but here goes again. The Bill of Rights applies to tax laws also. It is already under attack in the 4th Circuit under the Equal Protection clause and the Establishment Clause by Liberty University, because of the religious exemptions and abortion.
I think the bill did originate in the House. They just substituted the body from the Senate into another bill, which they can do.

txmomof6 on June 28, 2012 at 8:12 PM

Thanks for clearing that up for me.
Can you help me out with my Article I question above?

topdog on June 28, 2012 at 8:50 PM

We just had a 9 to 0 opinion that the mandate is not allowed under the commerce clause.

Count to 10 on June 28, 2012 at 8:40 PM

Huh?

I think that “opinion” was 5-4, with Roberts concurring with Thomas. Alito, Kennedy, and Scalia.

However, Roberts did not think the Obamacare mandate was a mandate. He called it a tax. Not sure how that works as a precedent, since the “opinion” is not based on actual legislation, because Roberts did not think Obamacare included an actual real “mandate”.

The opinion on that the Obamacare “mandate” was actually a “tax” was 1-8. Roberts was the only one who called it a tax. Ginsburg and the libs had no problem calling it a mandate. To them if Roberts needed to call it a tax — shrug, whatever.

That’s how absurd this ruling and Roberts written decision is.

farsighted on June 28, 2012 at 8:53 PM

It sounds like J.E., you have it exactly right.

Anything congress decides they want the public to do or not do, they simply call it a tax and…voila, the people have no say until after they pay the tax and then can file a grievance in an attempt to get the tax refunded, for whatever reason, they can or cannot provide as proof.

God Bless America!

paratisi on June 28, 2012 at 8:55 PM

I wonder how Roberts thinks an actual mandate, something he would call a mandate, actually looks like and works.

I suppose he must think prison terms for non-compliance must be involved, or something. Because apparently he thinks anything short of that is just a tax.

farsighted on June 28, 2012 at 8:56 PM

I wonder how Roberts thinks an actual mandate, something he would call a mandate, actually looks like and works.

I suppose he must think prison terms for non-compliance must be involved, or something. Because apparently he thinks anything short of that is just a tax.

farsighted on June 28, 2012 at 8:56 PM

Scratch that. If you refuse to pay taxes you go to prison.

Apparently in Roberts world there is no such thing as a mandate if you can give the government money to avoid going to prison.

I would really like to hear what Roberts thinks a mandate is. Too bad that will probably never happen.

farsighted on June 28, 2012 at 9:02 PM

we had a Constitution and a polity committed to liberty and God-given rights. As long as the cost didn’t interfere with our daily lives, it seemed too hard to most people to get engaged and fight the statism off.

J.E. Dyer on June 28, 2012 at 8:48 PM

Well said. Having all those things does not guarantee we will maintain our freedoms. We opted for the semblance of personal peace and affluence and surrendered essential liberties as a result.

I believe that the 2012 and 2014 elections will tell the tale as to whether this get reversed at the ballot box or whether it will have to be a more costly method.

chemman on June 28, 2012 at 9:03 PM

Ballots, my precious. Or bullets, if need be.

PD Quig on June 28, 2012 at 9:05 PM

Bill of Rights still applies to tax laws

They tax the sale of guns, can’t they just up the tax regardless of the right to bear arms? They did it with cigarettes, how’s that different? Free speach means they can’t jail you, does it mean they can’t “fine” you?

Rancher on June 28, 2012 at 9:05 PM

Next up? A mandate that you buy solar panels for your house, you know, for clean air?

Decoski on June 28, 2012 at 9:12 PM

You’re missing the point. Here is what you said.

“Why can’t Congress tell us the size of house we are allowed to buy, require us to buy it, and fine us if we don’t? Congress would just be taxing us by doing this. Why can’t Congress mandate that we pay for two weeks of vacation at the tourist hotspots approved by Congress, and fine us if we don’t?”

This already happens! Do you live in city? Do you have a lot you build on? Does that government, state, county or city tell you how big your house can be? Absolutely! They tell you they own a setback, even though you pay taxes on that ground. They tell you how close you can be to your neighbor’s house, which directly effects the size of your house.

Don’t shoot the messenger in the form of Judge Roberts. He did you a favor in a way because he stripped the “cute” language out of the law and told everyone listening what it is, a huge daunting life style killing tax. Rubio said it best. He just made millions of young Americans potential IRS targets.

This may turn out to be a Judo move. He let the dissenting judges tell it like it was- the law is a piece of crap. BUT he also reminded us, in his view of his job, that it isn’t the SP’s duty to unscrew a goat that elected officials, that WE elected, decided to create.

Roberts and his court did the same thing with campaign finance. They said it was constitutional and waited until someone was actually harmed by it, and then overturned it.

By making it a tax he stopped the further intrusion into the commerce clause and also exposed it for what it is. It is OUR job to fire the dumbies who wrote it and replace them with people who will repeal it.

Is Roberts a liberal or progressive? No so much as he is a lawyer. And I haven’t met one as a judge who doesn’t want to prove at least once he is the smartest person in the room.

This time, depending or whether the Republicans hit the hanging curve he just threw, he just might end up being the smart one.

(Notice the court sided with the States over Medicaid, removing one of Obama’s sticks. Not by accident. Maybe the SP is looking for a little “manning up” from them?)

archer52 on June 28, 2012 at 9:49 PM

This already happens! Do you live in city? Do you have a lot you build on? Does that government, state, county or city tell you how big your house can be? Absolutely! They tell you they own a setback, even though you pay taxes on that ground. They tell you how close you can be to your neighbor’s house, which directly effects the size of your house.

You will note the absence of the Federal government in your statement. States have plenary powers. The Federal government does not, as was first acknowledged in McCulloch v. Maryland, 17 U.S. 316 (1819):

“Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”

CJ Roberts reiterated this principle again today:

“The Commerce Clause is NOT a general license to regulate an individual from cradle to grave, simply because he will PREDICTABLY ENGAGE IN PARTICULAR TRANSACTIONS. ANY POLICE POWER TO REGULATE INDIVIDUALS AS SUCH, AS OPPOSED TO THEIR ACTIVITIES, REMAINS VESTED IN THE STATES.”

Resist We Much on June 28, 2012 at 10:13 PM

And you forget that the federal government since the mid thirties has “taxed” you for Social Security. They “tax” you for Medicare since the mid sixties.

Roberts points out the obvious it is accepted law that the federal government, when it feels there is a national need, to reach out and solve that need and then fund that solution by taxing you.

Suddenly, when nationalized healthcare at this level raises its head everybody forgets this is already settled and accepted law and practice.

Obama knew he couldn’t sell it as a tax. We were already strained. So he sold it as a lie, a mandate. Roberts just pulled the curtain back and will make everybody see it for what it is.

If the Republicans and conservatives like you and I don’t immediately change the title from Obamacare to “Obamatax” we’re the fools.

Now I’m with the minority personally. I think the law is unconstitutional because of its overreach and should have been dumped. But then again I feel about 90% of what the feds do is unconstitutional.

However, Roberts comes from a different school of thought. He believes it isn’t the SP’s job to pick and choose what laws are just or right or moral or effective as it is their narrow job to make sure they are constitutional.

As a tax, it is. I feared this from the outset. How can you say nationalized healthcare isn’t constitutional when you have your paycheck debited for nationalized retirement and healthcare for the elderly and infirm?

We let the camel under the tent a long time ago. Roberts only pointed out to everyone it was in fact a smelly camel when Obama was claiming it was a unicorn farting fairy dust. He also stuck a pretty sharp stick in the eyes of liberals who wanted to use the commerce clause as a way further into your lives.

You want change. Don’t look to the SP. Vote the dumb bastards out that have corrupted themselves and our nation and start over.

Oh, one more thing. Ask yourself why if a coal plant is in West Virginia providing power for West Virginia, the EPA- a federal agency- can shut it down on a whim.

We’ve allowed the violation of limited government to become commonplace. Roberts just followed what we’ve accepted as they way things are done.

It’s not over. Wait until the first tax not paid comes to the SP as a complaint like Citizen United and campaign finance reform. I think Roberts and the rest are setting Obamatax up in the same way.

Then again I could be wrong and Roberts is a progressive.

archer52 on June 28, 2012 at 10:48 PM

Don’t you have to tax something? What is being taxed here is nothing. That doesn’t make a bit of sense. How is letting Congress do anything through the tax power better than letting Congress do anything through the Commerce Clause? I don’t get it.

besser tot als rot on June 28, 2012 at 6:47 PM

This. When the first so-called tax hits, one simply needs to appeal to the tax courts. If you paid $0 in insurance, it is mathematically impossible to tax $0. Overwhelm the IRS and tax courts with appeals.

Nutstuyu on June 28, 2012 at 10:58 PM

What I want to know is if I pay the tax can I then buy the health insurance policy I want or do I still have to buy Obamacare policies that include things I do not want and subject me to the death panel rationing system?

KW64 on June 28, 2012 at 10:59 PM

As a tax, it is [constitutional]. I feared this from the outset. How can you say nationalized healthcare isn’t constitutional when you have your paycheck debited for nationalized retirement and healthcare for the elderly and infirm?

archer52 on June 28, 2012 at 10:48 PM

Those taxes are INCOME taxes. The mandate-tax is not.

topdog on June 28, 2012 at 10:59 PM

Yes there is no limit on taxes in the Constitution but there is a terrible price to pay by elected politicians for taxing high or taxing anything they want… That is why we have elections… Our whole system is check and balances and the ultimate check and balance are the elections…

mnjg on June 28, 2012 at 11:31 PM

mnjg on June 28, 2012 at 11:31 PM

No limit on taxes?
Article 1 Section 9 is pretty specific.

topdog on June 28, 2012 at 11:45 PM

This is about to make me cry. I look at my sweet sweet baby and can’t imagine the kind of country he is going to grow up in. If we try to fight against the government they will take everything away from us and leave him nothing. I think of all the things that the lying scheming immoral degenerate Democrats are going to try to make us do, and I will not do anything that goes against my faith. They will grind us under their thumbs and laugh at our anguish.

cptacek on June 28, 2012 at 11:57 PM

Battles are never won by those who give up, xblade. Romney isn’t someone who will rectify the US with our Constitution, but if Congress repeals Obamacare, I believe he’ll sign it.

I agree very much with txmomof6 that engagement is our only option, as citizens. We spent the last 60, 80, or 100 years, depending on your reckoning, letting statism creep up on us, accepting bad programs and dangerous laws because we felt invulnerable. After all, we had a Constitution and a polity committed to liberty and God-given rights. As long as the cost didn’t interfere with our daily lives, it seemed too hard to most people to get engaged and fight the statism off.

The chickens have come home to roost. No government can be trusted with the power we have given ours. We can’t just buy peace from the left anymore by handing them money. They want our spirits and everything we have, and they won’t be satisfied with less. Roberts has given them the way to come after it.

A peaceful confrontation at the ballot box in November is what is indicated, for now. But that won’t be enough, not by a long shot. We will have to postpone other goals in our lives — those of us with a taste and talent for politics — and get in the arena.

Not doing that is the one thing that would guarantee we will lose.

J.E. Dyer on June 28, 2012 at 8:48 PM

Welll said J.E. We have to get in the arena. I know you are in it with your blogging, so thank you. If I didn’t have 6 kids, I would consider running for office, but some day they will be grown.

txmomof6 on June 29, 2012 at 12:36 AM

It bemuses me the folks that say it isn’t Robert’s job to overturn what a duly elected President and Party have put into law and that if we don’t like it – to then vote.

He swore an oath to uphold and defend the Constitution, not teach lessons in civil consequences. The Constitution’s whole premise is based on the fact that the Federal government is limited with its powers and is bound by the rights it can not infringe upon its citizenry.

How the hell do we get from that most basic foundation to the Mandate is a Tax, even though the tax isn’t on Income, but the statute didn’t call it one practice of Constitutional Law???

rgrovr on June 29, 2012 at 12:58 AM

Me too. Can’t say I like the Longhorns, but I’ve got family all over Texas, Dad was born in Fort Worth, and I really, really like Texans. Almost as much as I like Okies.

J.E. Dyer on June 28, 2012 at 8:15 PM

Elizabeth Warren excluded, obviously. Right?

steebo77 on June 29, 2012 at 1:05 AM

Elizabeth Warren excluded, obviously. Right?

steebo77 on June 29, 2012 at 1:05 AM

She’s definitely an OINO (Okie in Name Only). Doesn’t count.

J.E. Dyer on June 29, 2012 at 3:00 AM

Why do you think Robert’s did this? He just loathes the “Republic”?

Dr Evil on June 28, 2012 at 8:14 PM

Sorry, but I won’t go there. I’m not about impugning the man’s motives. I consider him to be honorable and sincere and in this case, profoundly wrong. That’s it.

MJBrutus on June 29, 2012 at 6:01 AM

txmomof6 on June 29, 2012 at 12:36 AM

I agree with you that we should seek to amend the Constitution. What has me so upset is that such amendment should not be necessary. The Constitution as written already prohibits this type of law!

MJBrutus on June 29, 2012 at 6:03 AM

It did. The Senate gutted out HR 3590, which was some junk bill from the House about first-time home buyers credit. They put ObamaCare into that as an amendment to the shell and then the House voted on that exact language (which they didn’t want to do, hence all that crazy DemonPass talk, the Stupak fake amendment talk and the like).

In light of this, it’s obvious the fix was in from the very beginning. This ain’t getting repealed folks. Your government loathes you and loathes personal freedom.
It’s time to start accepting reality.

quiz1 on June 29, 2012 at 7:02 AM

Never has such evil visited our shores before. This ability to tax for non-performance of an arbitrary obligation is pure fascism, a totalitarian reality. By what contorted reasoning did Roberts commit treason. We no longer have a constitution.

John Mauer on June 29, 2012 at 7:30 AM

Scalia’s dissenting opinion is a lasar beam of intellectual honesty and purity. Roberts’ betrayal of the Constitution in order to pass this law as a tax when the Government never defended it as such is sickening…

Pest on June 29, 2012 at 8:18 AM

1.76 Trillion in new taxes coming our way according to the latest CBO estimate (Does anyone believe it won’t end up being 3-4 Trillion?) and an army of new IRS agents to enforce it.

dddave on June 29, 2012 at 8:22 AM

Healthcare mandate is now a TAX enforced by 16,500 new IRS agents!! Have any of you folks ever tangled with the IRS when they think you owe taxes?? IRS will function as Obama’s Chicago style Gestapo!!

Marco on June 29, 2012 at 8:23 AM

The problem is that everyone likes power and so does the Congress. This ruling allows the legislative shell game and super taxing power to get what Congress decides it wants. Even if Romney wins and overturns Obamacare the federal power is still there.

Constitutional Amendment that takes away that power? That would take too many true conservatives in State Legislatures. Politics abstracts way to many sell-out low-lifes.

I’m very surprised & disappointed in Judge Roberts.

Chessplayer on June 29, 2012 at 8:39 AM

VOTE, DONATE TO CONSERVATIVES.

ELECT CONSERVATIVE CONGRESS

PUT ROMNEY IN AS PRESIDENT.

Let the Amendment process begin. Amend the consititution to LIMIT the size and scope of the federal government. It is the only way we will ever plug the hole in the dam.

stenwin77 on June 29, 2012 at 8:41 AM

Topdog-

It doesn’t matter what they are called, a tax is a tax. Social Security tax is tied to income, but it is NOT an income tax. If it were the “lockbox” lie would have never existed in the first place.

Neither is the point. Now the Left is going to have to eat their lunch of taxing everybody IF the Right gets its act together and renames Obamacare Obamatax.

As some of you have already figured out. The Supreme Court has ruled, under Roberts’ decision, this is a tax. That makes it applicable to all other tax regulations, limits, appeals etc.

A “mandate” was new law and soundly rejected. The Left tried cute and got slapped down. I think Roberts did a good job trying to navigate an unwinnable situation.

Don’t get me wrong. If I were him, I would have kicked it out so quick people would have wondered if we had heard it at all in the first place. But I’m stuck Constitutionally pre-Teddy Roosevelt in my way of thinking what the government can and should be allowed to do.

So don’t confuse my empathy (I understand why he did it) with sympathy (I agree with what he did). When I chased bad guys for a living I understood why they killed, raped and robbed from their twisted mental perspective. It made it easier to catch them. But I arrested and prosecuted them for their crimes as I did not excuse their behavior.

Roberts did what Roberts did because he was trained and believes in a certain role in the overall process. In this I agree. Do we want nine people parsing and choosing what laws they like based on their view of whether or not it serves their personal preference? (Judicial activism) Or do we want judges who will say, as bad as this is it is constitutional but we STRONGLY urge all of you to stop allowing your elected representatives to commit acts of stupidity and abuse.

Roberts knows what this is. He also knows it isn’t his job to, as Ron White so aptly put it, “You can’t fix stupid”.

That is our job and it starts now and ends when we can feel secure in knowing big government loving, corrupt, spoiled career politicians no longer inhabit either party.

Just my opinion.

archer52 on June 29, 2012 at 8:51 AM

I think everyone is wrong here(heh) The court was confused because of all that sweet-smelling stuff in the air or something.

You see, Roberts and the court decided based upon that long held legal standard, “original intent.” Since this new law didn’t require long legal searches through historic documents, but only a short trip to the present day …say..New York Times, to find this original intent.

There could be little doubt about it in this law,since only one party passed it. This party shouted loud and clear for all the world to hear (or tweet) that their intent was NOT a tax.

Now all the court had to do was follow that original intent so they did and concluded that it was the origninal intent of the law that is is …a tax?

Who needs intelligent lawyers on the court, when any old devious politician will do??

Don L on June 29, 2012 at 8:59 AM

Here are opinions of two other people. I used to love George Will be he’s drifted Left in my opinion- or I drifted farther Right.

Krauthammer is brilliant period. I may not agree, but I least I admire him for thinking things through in great detail.

http://www.washingtonpost.com/opinions/george-will-supreme-court-gives-conservatives-a-consolation-prize/2012/06/28/gJQAWyhY9V_story.html?wprss=rss_opinions

http://www.washingtonpost.com/opinions/charles-krauthammer-why-roberts-did-it/2012/06/28/gJQA4X0g9V_story.html

From Will’s post:

“By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s advantage. ”

From Charles:

“Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

“As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.

That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the commerce clause, what can it not do?

“The Framers . . . gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states.”

Not an easy job, trying to maintain some sense of Constitutional balance when surrounded by activist on the Left on your court and idiots in the nation who think “I get my mortgage and gas and now healthcare for free” and who vote in politicians only too eager to allow those voters to believe such lies.

This fish didn’t rot from the head, it rotted from the tail on up.

archer52 on June 29, 2012 at 9:03 AM

he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

archer52 on June 29, 2012 at 9:03 AM

This is where I disagree. IMHO, Roberts has damaged the court’s legitimacy, reputation and stature beyond repair with his overreach and rewriting of this law. What he sees himself as is not what his job is. He seems to be acting like Obama, putting his own stature and legacy ahead of the Constitution and ahead of the country, and trampled on the Constitution, just like Obama, instead of upholding it. He has, in my view, “eroded the esteem” in which the court was once held. I think the judiciary is one area that the Founding Fathers didn’t define well and that apparently has grown to have too much power and sway that needs to be reigned in. We The People need to take back that power.

stukinIL4now on June 29, 2012 at 9:31 AM

The court could have added that if Congress wanted to write a tax, it could do so.

AND since they not only didn’t do so, but loudly and clearly denied it was a tax, SCOTUS cannot and should not give Congress’ written word any other meaning.

From my blog yesterday: One of the key rules of law is that when a portion of a law has to be interpreted by the court because the word or passage is not easily construed, the court looks at the legislative intent by reviewing the notes made by legislators. Here, IF individual mandate is not clear to SCOTUS then they only have to look at Obama’s repeated denials (along with Harry Reid and Nancy Pelosi) that the mandate is a tax.

katablog.com on June 29, 2012 at 10:13 AM

It is deeply saddening to see the torture of our law and our idea of law in this instance. Congress did not, in fact, write a tax; Congress wrote and intended to write a mandate. SCOTUS has done great harm by so dangerously enlarging the effective definition of a “tax” – and by assuming the privilege of telling Congress what Congress actually did when Congress meant to frame a mandate. The difference between purchase “mandate” and “tax” is a very real one from every perspective of government and law, and SCOTUS has irresponsibly elided them.

I agree with most of your points, but we shouldn’t blame SCOTUS as a whole. Four justices (Scalia, Thomas, Alito, Kennedy) were totally opposed to the mandate due to the Commerce Clause, and wanted to strike down the entire law. Four justices (Ginsberg, Breyer, Kagan, Sotomayor) believed that the mandate WAS constitutional because sick people not covered by health insurance impose costs on others, and at least they were honest about their opinion.

Only one Justice (Roberts) invented from scratch the idea that the fine against failure to comply with the mandate was a “tax”, even though the Solicitor General, arguing FOR the mandate, said over and over that it was NOT a “tax” but a “penalty”. How does a judge find in favor of a plaintiff by disputing what the plaintiff argued?

Former President George W. Bush told us he didn’t want judges legislating from the bench–and then he gave us one who did.

Steve Z on June 29, 2012 at 10:35 AM

U.S. Constitution 1789-2012 R.I.P.

Who is John Galt on June 28, 2012 at 8:23 PM

Thread winner!

I want that on a bumper sticker.

FlatlanderByTheLake on June 29, 2012 at 12:05 PM

…Four justices (Ginsberg, Breyer, Kagan, Sotomayor) believed that the mandate WAS constitutional because sick people not covered by health insurance impose costs on others, and at least they were honest about their opinion…

Steve Z on June 29, 2012 at 10:35 AM

The free-rider notion is largely propaganda. The ‘free-riders’ are illegal aliens and the homeless. They are the only ones that can walk out on a hospital bill. Regular folks that need healthcare end up with big credit card bill, a second mortgage, selling off that second family car, etc.

After Obamacare, the illegal aliens and the homeless will remain free-riders, because ‘free’ will always be the cheapest way to go.

slickwillie2001 on June 29, 2012 at 12:38 PM

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