A closer look at page 41-42 of Justice Roberts opinion is a lot like putting bananas on your cereal: it just starts the day off right. by Paul Benedict
Sunday, July 8, 2012
Because so many impoverished American neighborhoods cancelled Fourth of July fireworks for financial reasons, I was doing some lighter reading today to see if it would buck me up. I wasn’t disappointed. Did you know that that good ole Justice Roberts totally understands me? Sure, listen to this from page 41 of his decision:
"There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something" (41)
When I read this, I about jumped out of my seat. "That’s almost exactly what I wrote in my recent article on this same issue," I thought (see "When a Tax is not a Tax...".) I couldn’t believe it. Some one actually read one of my articles! Then I remembered that Roberts wrote this before I penned my article because, well, I wrote the article responding to Roberts (Actually, I really wrote in response to Rush’s comments on Roberts. Rush was off on some weird tax tangent and had, this once, missed the boat. Little did I know then that is was me and the Romney campaign that missed it)
Anyhow my mood lifted as I continued reading the Robert’s opinion: "Three considerations allay this concern..." Oh, that wise Supreme, he not only understood my concerns, but he was working hard to allay my fears. Then I read:
"First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that every-one must pay simply for existing, and capitations are expressly contemplated by the Constitution (41)..."
I belly laughed. I felt much better. Roberts himself had stopped helping, but he had got me following through on his logic, and that was wild enough to take the edge of the Fourth of July's new normal.
First, the mandate’s penalty is not like the capitation tax mentioned in Article One of the Constitution. A capitation tax (or decapitation tax as some understand it), was not a tax based on the choice not to act. As Roberts recognizes, everyone who could be counted had to pay the tax. The choice not to be born doesn’t come into play (Although some have suggested informing the fetus about Obama Care as a sort of late term abortion technique, little progress has been made).
Roberts has made a constitutional precedent that allows a class of people to be taxed because they don’t live the way the majority feels they should. This is exactly the core of our natural right to pursue our own happiness that the plaintiffs sought to secure from the unwarranted expansion of the commerce clause. Fees and penalties follow regulations. Calling this a tax means that congress doesn’t even have to mess with complicated jurisdictional issues; they can just skip to the heart of the matter: unlimited federal enhancement of power and revenue.
Justice Roberts has just found new revenue streams for the federal government. Congress will certainly use them. Can we expect federal seatbelt taxes, federal incorrect anti-virus software taxes, federal motorcycle helmet taxes, and federal green energy farm taxes? If there are not already non-participation taxes for rectal screenings in the Affordable Care Act, there absolutely will be. Surely, there will soon be federal non-condom compliance taxes also. Will the IRS visit our high schools with bananas? And what if, what if we refuse to put fruit on our low cholesterol cereal? Will my wife and children get a tax write-off for squealing? Will the participating spouse always get custody? If all of this was done by national referendum, I wouldn't be concerned, but this is done by congress. Stuff like this gets passed every day as part of some save our rear compromise that conress feels it can all hide from the people until the local high school starts mandating IRS agents be supplied with free bananas.
Justice Robert’s second point is that if the taxes for choosing not to participate in the majority’s life-style choices get so high that they "destroy," the court will surely step in (42). Tax me more if I’m not comforted by this. His third point is that taxes aren’t as bad as penalties. In other words, the legal trouble folks can get into for not paying a penalty is far worse than the trouble they might find in not paying their taxes. Tell it to Capone--talk about bananas!
Roberts has simply relabeled a jar of Constitutional botulism. If he had upheld the exploitation of the commerce clause, the people would be forced to write a constitutional amendment. Now that it has been upheld by the broader power of taxation, the people must still go to work. (If I were the Tea Party or in a coalition with the Tea Party, I’d suggest we trade higher taxes for several constitutional amendments. That’s for another day. For now, it would be great to see our national leaders swear off drugs).
The mess Roberts has made is tragically comical. The Republicans are really excited about following Robert’s lead and calling this a tax. Of course I kid about Roberts and his bananas. He’s a bad liar but a brilliant man. He knows very well that even the Conservative lawmakers would rather sell their grandchildren into slavery than to give up their filibuster power in the Senate. (That thing is worth real money. See my article on the birth of Obama Care.) That’s how Roberts knew that the Republicans would jump on the tax rhetoric. If it’s a tax, Conservatives can seek to undo Obama Care through the budget reconciliation process with a simple majority. Let’s say they succeed. Then what? You bet. The ACLU and other communist legal foundations will sue. They’ll say the legislative process was illegal because the mandate was NOT a tax. Guess what? All nine Justices are already on record saying that the mandate is not a tax! Yea, according to Scalia, not only do the four dissenting justices refuse to call the mandate a tax (and, indeed, suspect it would be an unconstitutional to call it a tax--p. 151), but His dissent also points out that the five jurists upholding the ALL, call it a mandate for the sake of avoiding the injunction against the plaintiffs filed by the Government itself. Scalia writes:
We have left the question to this point because it seemed to us that the dispositive question whether the minimum-coverage provision is a tax is more appropriately addressed in the significant constitutional context of whether it is an exercise of Congress’ taxing power. Having found that it is not, we have no difficulty in deciding that these suits do not have "the purpose of restraining the assessment or collection of any tax." (152).
It’s hard to imagine actually deciding whether the mandate is a tax before considering whether or not the jurisdiction of the court allows a ruling. That seems too straightforward, logical, and honest for any constitutional lawyer. Anyhow Justice Scalia continues:
"The Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for purposes of the Anti-Injunction Act … but is a tax for constitutional purposes…." (153).
Scalia isn’t entirely wrong. At least the syllabus summary of Robert’s ruling in part concurs:
"The Anti-Injunction Act provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person," … so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a "tax" for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a "penalty," not a "tax." That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. [my emphasis]" (2).
Legislatively, the mandate is not a tax, but constitutionally it is. That means, legislatively, a filibuster may be required to overturn the Act even though, by some sort of constitutional miracle, a mandate is really a tax.
There are 3-2 pitches, bases loaded in the bottom of the ninth, that are called strikes even though they’re well off the plate. That’s one thing. It’s another when strike three is over the umpire’s head and whacks a little kid in the stands. Bananas.
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