Thursday, June 28, 2012

Libertarian Reaction to Supreme Court Ruling on Obamacare

Who can be surprised? 
The Supremes, who love putting their boots on our necks as much as the Congress and the Executive, have endorsed another totalitarian expansion of State power through Obamacare. Republicans, who loved Nixon's and Bush's socialized schemes, and Romneycare, too, really do not differ except on pure partisan grounds. After all, Obamacare was written by Big Pharma, which owns both parties in its area of interest. Note: the Nine Creeps' power here is entirely usurped, thanks to John Marshall, though this was no surprise to the Anti-Federalists, who correctly saw the Constitution as a centraizing, big-government coup against the Articles.

Laurence Vance:
 Chief Justice John Roberts has joined the liberals on the SC in upholding the Obamacare individual mandate. In doing so, he declared a non-tax to be a tax: 
The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress's power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress's power to tax. 
For years we have been told by Republicans that we need to elect a Republican president so he can appoint conservatives to the SC. Thanks Republicans, for electing George W. Bush so he could appoint John Roberts. Thanks a lot.

Ryan McMaken:
 SCOTUS voted 5-4 to uphold Obamacare and have concluded that the Constitution actually empowers the government to force people to buy things. In this case, it's health insurance, but now that the precedent is set, the feds can now require you to buy anything it wants, apparently justified by the Constitution's granted power to tax. 
This nicely illustrates the theory that SCOTUS judges will almost always come down on the side of more government power unless doing so will dangerously undermine their own power. They're politicians in robes. The number one concern of the court is its own independence, as illustrated by the craven switch in time that saved nine. It will only vote for more freedom when backed into a corner by the text of the constitution itself, as in the case of Chicago v. McDonald. But now, calculating that there's enough political support behind Obamacare to get away with it, SCOTUS has handed the executive branch a new massive amount of power.

Michael Rozeff:
 "The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax," Chief Justice John Roberts wrote for the court's majority in the opinion. 
"Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness," he concluded. 
It's bad enough that the U.S. government claims the power to tax, but it adds insult to injury for the Court to claim that a fine for not doing something is a tax. Idiotic.

Michael Rozeff (again)

Michael Eversden pointed this out to me, so I read that portion of the decision, and it's true: the Supreme Court says that the fine is not a tax for one purpose (getting the case to be considered despite the Anti-Injunction Act) and is a tax for another purpose (the Constitution). The relevant portion of a paragraph reads: 
"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." 


  1. Weep for what was a free and moral country of men.... I feel grief and despair today... we live in 1984

  2. As a libertarian who doesn't believe that Constitutions are anything more than statist tricks, I respond with a resounding "meh."

    A little more or a little less statism. That is what SCOTUS decides.

    1. I view James Madison as being one of the most evil men who ever lived.

  3. I feel sorry for the dupes and suckers listening to the likes of Sean Hannity who will be told to vote for Romney so we can overturn Obamacare and get more Justices like ..... John Roberts?

  4. If you haven't seen this, seriously watch:

  5. I was expecting Roberts to find some way to keep the mandate, and he did. Unlike eternally wishful republicans, I was pretty certain Roberts will do anything to not be "the judge who killed a president's term"; so the outcome was pretty obvious from the outset, and I was only curious to see what pretzel he will turn himself into to justify it.

    It's an elegant one :)

    It's true that he has to apply the penalty label towards anti-injunction while at the same time ignoring it to re-label the payment as a tax. But nobody took the anti-injunction part seriously anyway.

    The core of the logical contortion here was that in his mind, Roberts had managed to both limit the commerce clause and avoid striking down the law at the same time, thereby limiting the wrath of both conservatives and democrats. Note that a part of Ginsburg's dissent was specifically lamenting this point - she's unhappy with the fact that he DID specify a limit on the commerce clause (the activity vs. inactivity distinction), which will make it harder for congress to force people to do things.

    In practical terms, this probably increases Romney's chances, as well as the chances of those running for congress against anyone who voted for Obamacare. We'll be seeing the video where Obama says "this is clearly not a tax" every day for the next 4 months.

    Other than that, it really changes nothing. Things will be just as bad as they were before, with the tiny distinction that from now on, if congress wants us to buy something we don't want, they'll have to admit it's a tax...

  6. @Anon 1:21 PM

    "Weep for what was a free and moral country of men...."

    When was that? So you've swallowed the propaganda hook, line, and sinker! The US has never been either free (for the little people) or moral. The US has always been an aristocracy, and you're not a member...

    As Celente likes to say, justice means "just us."

    Or as Patrick Henry famously declared "Give me liberty or give me death" with emphasis on the ME... the little people need not apply.

  7. We obey satan, and therefore you have to do what we tell you. If you don't come out in full support of the destruction of America, we will fine and imprison you; with or without your family's knowledge of your whereabouts. Kneel before Zod!

  8. Well Yankees, looks like were all Canadians now. Welcome and pay up.

  9. The holding that the penalty was a "tax" for Constitutional purposes but not for purposes of the Anti-Injunction Act is not that outrageous. Even in private contracts, words are often given (or should often be given) a specified meaning that may or may not be the typical meaning (or may be an expanded or limited version of the typical meaning). What mattered for purposes of the Anti-Injunction Act was merely Congressional intent--did Congress INTEND for the AIA to apply to the penalty, or not? The Court concludes that Congress did NOT intend for the AIA to apply--that is the significance of its holding that the penalty is not a "tax" for AIA purposes. However, what matters for Constitutional purposes is the Constitutional definition (or, to be more precise, the Court's definition for use in Constitutional contexts) of "tax," not Congress' intent.

    A similar (though less complicated) dichotomy can be seen in the "Constitutional" (again, the Court's) definition of "income" for purposes of income taxation, as opposed to the statutory definition (which excludes things like life insurance proceeds which would otherwise be income under the Court's definition).

  10. @mtphrs:

    Yes, in private contracts, words "are often given a specified meaning that may or may not be the typical meaning (or may be an expanded or limited version of the typical meaning)."

    But contracts and agreements often have something called a term sheet. On that sheet, the agreement lists words and the definition of those words. The term sheet is designed to provide consistency throughout the agreement.

    In the Roberts' opinion, the court defined the word "tax" as A in one part of their opinion, and then defined "tax" as B in another part of the opinion. That simply should not be done.

    Furthermore, the court states: "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." (Emphasis added.)

    My question: Why is it impossible for the "penalty, not a tax" distinction to control how the court viewed the Act? In any other situation, the court would apply a common-sense reading of the text. In this case, the common-sense reading of the text is that it is a penalty -- not a tax.

    If Roberts wanted to vacillate between the two definitions, he owed the people some reasoning as to how -- legally and logically -- he could do so.

  11. @antiahithophel:

    "In the Roberts' opinion, the court defined the word 'tax' as A in one part of their opinion, and then defined 'tax' as B in another part of the opinion. That simply should not be done."

    There's no reason not to, when the term is being discussed in the context of two different documents. Internal consistency within one document does not require consistency between that document and some other document using the same term, unless the documents expressly state that such consistency is intended.

    Further, if you look beyond the label "tax," you'll see that there is no inconsistency at all in doing what the Court did: to say that a levy is a "tax" for AIA purposes is merely to say that Congress intended that the AIA bar a suit challenging that levy prior to its collection; whereas to say that a levy is a "tax" for Constitutional purposes is to say that Congress has authority to impose the levy. There is no inconsistency in saying that (1) Congress may impose a levy (the levy is a "tax"), but that (2) Congress did not intend to bar suit prior to collection of the levy (the levy is NOT a "tax")--unless you assume that (3) Congress intended the AIA to bar suit challenging collection of any levy imposed under its taxing power prior to collection, and (4) Congress did not intend otherwise with respect to the "shared responsibility payment" imposed under the individual mandate. Even if we assume that (3) is true, however, Roberts concludes that (4) is not, but that Congress did intend otherwise.

    "In any other situation, the court would apply a common-sense reading of the text. In this case, the common-sense reading of the text is that it is a penalty -- not a tax."

    Roberts concludes otherwise. You can argue with his reasoning, but the reasoning you ask for is in the opinion.

    (Without researching the question too much, I WOULD argue with his reasoning: he determines that the "shared responsibility payment" is a tax for Constitutional purposes by using a test designed to determine whether a levy is a penalty; but for this to be valid, there must be no other possible characterization than "tax" or "penalty." Couldn't some levy be neither a tax nor a penalty?

    That said, Roberts supports his affirmative finding that the payment is a tax with the following: (1) it is paid to the Treasury by "taxpayers" when they file their tax returns; (2) It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the IRC; (3) the amount of the payment is determined by such "familiar factors" as taxable income, number of dependents, and joint filing status; (4) the requirement to pay is found in the IRC and enforced by the IRS, which must assess and collect it "in the same manner as taxes"; and (5) the process yields the "essential feature of any tax:" at least some revenue for the government.)

  12. @ mtphrs:

    First, the term is NOT being disucssed in two different documents. The term is in one document: The ACA. The question is: How do the Constitution and the Anti-Injunction Act apply to the ACA and how do they apply to the penalty?

    I would agree that if a term "X" is used in document A and the term "X" is used in document B, then, yes, of course, the term can have different meanings. But, clearly, that's not what happened here.

    Second, I am not asking for Roberts to explain why HE thinks that it is a tax. I want Roberts to explain why he can acknowledge that Congress declared it "not a tax" and then he can declare it "a tax" and his judgment trumps that of Congress. That is not his role. Congress was clear in what it stated. If they wrote a poorly constructed bill, that's not his problem. He is neither the editor nor the author of legislation.

    Also, according to Roberts, Congress declared it a penalty, not a tax, to get around the Anti-Injunction Act. In other words, he was saying: "Congress wanted it to be a tax, but they knew that if it was declared a tax, then the AIA would apply. So, to get around this, Congress declared it a penalty. Thus, for purposes of the AIA, it is not a tax but a penalty. For all othe purposes, however, I know that Congress really wanted to call this a tax, so I declare it a tax."

    But, that reasoning is ill-founded, for if Congress wanted to declare it a tax and not have the AIA apply, all it had to say was: "This is a tax, but it is immune from AIA analysis." I think Congress does this all the time: Write law A and protect it from law B.

    Finally, I close with the words of Justice Kennedy's dissent:

    "Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of
    those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

    "In answering that question we must, if “fairly possible,”
    Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the
    provision to be a tax rather than a mandate-with-penalty,
    since that would render it constitutional rather than un-
    constitutional (ut res magis valeat quam pereat). But we
    cannot rewrite the statute to be what it is not. “‘“[A]l-
    though this Court will often strain to construe legis-
    lation so as to save it against constitutional attack, it
    must not and will not carry this to the point of perverting
    the purpose of a statute . . .” or judicially rewriting it.’”
    Commodity Futures Trading Comm’n v. Schor, 478 U. S.
    833, 841 (1986) (quoting Aptheker v. Secretary of State,
    378 U. S. 500, 515 (1964), in turn quoting Scales v. United
    States, 367 U. S. 203, 211 (1961)). In this case, there is
    simply no way, “without doing violence to the fair meaning
    of the words used,” Grenada County Supervisors v. Brog-
    den, 112 U. S. 261, 269 (1884), to escape what Congress
    enacted: a mandate that individuals maintain minimum
    essential coverage, enforced by a penalty."

  13. form what i understand if when you get fined you would have to pay a tax, and if you refuse to pay that tax you would get fined and causeing you to pay another tax that. Is that making a ever ending monopoly?

  14. @antiahithophel:

    I am not expressing an opinion regarding whether Roberts reached the correct conclusion in saying that the "shared responsibility payment" is a tax for Constitutional purposes; I am only pointing out that there is no inconsistency in calling it a tax for Constitutional purposes, but not for AIA purposes. To summarize Roberts' view (as I read it), the "shared responsibility payment" is a tax that Congress called a penalty. Because it is a tax, it is a valid exercise of Congress' power to lay and collect taxes; by calling it a penalty, Congress indicated that the AIA doesn't apply. In other words, Congress did what you say it can ("This is a tax that is not subject to the AIA"), but implicitly rather than expressly.

    What's more, Roberts is not saying that a single term as used in a single document has two disparate meanings; instead, he is stating that the fact that Congress called the tax a penalty is only relevant for purposes of the AIA, and does not change the tax into something other than a tax for Constitutional purposes.