Green Room

The Supreme Court, the Mandate, and “Taxes”

posted at 9:22 am on June 29, 2012 by

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

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

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

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

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

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

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

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

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

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To which I respectfully reply: that’s not the job of a Supreme Court Justice.

So what? What does that viewpoint do to advance the conservative cause and fight back Progressivism? It’s defeatist and totally non-pragmatic.

I really don’t understand some people. Yes, I’m sure many of us are still reeling from the shock that OCare wasn’t overturned, but at some point we have to pick ourselves up, dust ourselves off, and decide what the next step is. Enough of the fatalistic perspectives. We need to go to Plan B, then Plan C, and so on…and if we have to invent new letters of the alphabet to make room for more plans, so be it!

Yes, the Commerce Clause has been hindered. Why are so many people poo-poohing this as unimportant? This can now be used as precedent to usurp numerous court decisions on federal power…something nobody expected we’d have so soon! Same goes for the identification of ObamaCare as a tax. We now not only have the greatest talking point EVAH for the election, but it’s the same one that sunk an incumbent 20 years ago! Additionally, this gives us an even better opportunity to start dismantling the bastard piecemeal, starting with the most onerous core of the monstrosity!

This isn’t Waterloo. Dunkirk, possibly. Market Garden, maybe. The war isn’t over. It’s never over.

MadisonConservative on June 29, 2012 at 10:16 AM

Agree wholeheartedly.

GWB on June 29, 2012 at 10:29 AM

How is settng a strong limit on the Commerce Clause not a job for the Court?

Handing the Progressivess a destructive ‘victory’ is, arguably, defense of the Constitution. And by getting the Liberal Wing on board, Roberts put a serious limit on how Congress and the President can strong-arm the States.

When you look at fighting withinthe Court, Roberts looks like Sherman facing James P. Johnston: outmaneuvering the enemy by indirect, relatively bloodless action.

njcommuter on June 29, 2012 at 10:29 AM

MadisonConservative on June 29, 2012 at 10:16 AM

At best it’s Market Garden, MadCon. The question is, how do we get rid of all the Montgomery’s in the Senate? They will insist we continue on doing what doesn’t work, or what isn’t constitutional. Where is our Patton in this?

GWB on June 29, 2012 at 10:49 AM

The question is, how do we get rid of all the Montgomery’s in the Senate? They will insist we continue on doing what doesn’t work, or what isn’t constitutional. Where is our Patton in this?

GWB on June 29, 2012 at 10:49 AM

To your first question, the answer is November. I know that Herb Kohl’s seat will most likely be taken by a Republican, after Walker’s win. Right there, that puts us up two places. This can happen in more of the country if we use this energy the way the Tea Party did in 2010.

And to your second question, the answer is the American people. They don’t like being lied to about taxes, especially not when the Vice President is telling them they’re in a depression. Remember “Read My Lips”.

MadisonConservative on June 29, 2012 at 11:08 AM

as a true “glass half-full” guy, I think Roberts “punted”. the court of late dodges constitutional issues (I know that’s their job but to steal a line from a movie “that’s not important now”). the problem they have is those issues are “forever”. so he finds an easy out (knowing that as a “tax”, it can easily be undone).

I haven’t read the opinion but I did hear something like “it’s not our job to protect people from their electoral decisions”. If that is true, then Roberts found a way to duck the “precedent” but at the same time sent a very subtle message to everybody.

one question I have…I didn’t think the court would decide any issue not present in the briefs. was the “tax” thing in those arguments? if so, why was everybody “blind-sided”?

teejk on June 29, 2012 at 12:18 PM

one question I have…I didn’t think the court would decide any issue not present in the briefs. was the “tax” thing in those arguments? if so, why was everybody “blind-sided”?

teejk on June 29, 2012 at 12:18 PM

The issue the Court decided (among others) was whether or not the mandate was constitutional. The government made several arguments in favor of its constitutionality (one of which was that the mandate was a proper exercise of the federal government’s power under the Commerce Clause).

The government also argued that the mandate was a valid exercise of the federal government’s power to impose taxes. This was considered to be the weakest argument, for a lot of reasons — partly because of the fact that the government was simultaneously arguing that the mandate was not a tax (so that the government could avoid the application of the Anti-Injunction Act), and partly because the Congress and Senate had expressly denied that it was a tax when they wrote and passed the bill.

Almost all of the legal “experts” had focused on the Commerce Clause arguments, because that was viewed as the most likely place for the Court to find authorization for the mandate. The tax argument was considered by most people to be the weakest argument, and that is why so many people were surprised that CJ Roberts bought it.

AZCoyote on June 30, 2012 at 7:40 PM

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