Saturday, June 30, 2012

Robert Reich and Judge Napolitano on the Bizarre Logic of Justice Roberts

Reich is trying to make a different point, but he correctly understands how Justice Roberts' reasoning for upholding Obamacare is bizarre reasoning that can lead down a very dangerous path:
On the most critical issue in the case – whether the so-called “individual mandate” requiring almost all Americans to purchase health insurance was a constitutionally-permissible extension of federal power under the Commerce Clause of the Constitution – Roberts agreed with his conservative brethren that it was not.

Roberts nonetheless upheld the law because, he reasoned, the penalty to be collected by the government for non-compliance with the law is the equivalent of a tax – and the federal government has the power to tax. By this bizarre logic, the federal government can pass all sorts of unconstitutional laws – requiring people to sell themselves into slavery, for example – as long as the penalty for failing to do so is considered to be a tax.

And Judge Nap backs up Reich:






(ht Kyle Johnson)

3 comments:

  1. Who doesn't get the feeling this "tax" ruling will have great and unoreseen consequences? As Lew Rockwell states, politics pollutes everything, and only politics can ensure that one man alone can unleash something like this on hundreds of millions of people.

    It reminds me a little of a kerfuffle over here in Britain. It's on a smaller scale but still ongoing.

    The Bill of Rights 1689 states that no-one can be fined unless found guilty of a crime in court. A few years ago a few people disputed parking fines, challenging authorities to always take them to court (and lose money because it's an expensive process).

    Local councils (the parking authorities) said that the fines are taxes, not fines. Ok, the protestors started writing off these taxes (fines) against their tax bills. The Inland Revenue said they're fines, not taxes, and found themselves in an unresolved argument with local authorities.

    The lesson is to not tug at threads in the first place.

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  2. In fairness, I don't think Reich is correct when he says, "By this bizarre logic, the federal government can pass all sorts of unconstitutional laws – requiring people to sell themselves into slavery, for example – as long as the penalty for failing to do so is considered to be a tax."

    Roberts' ruling arguably places no [i]structural[/i] limit on the federal government's ability to do something like Reich says (although there's language in the opinion to the contrary). But it does not address whether taxes can be used as an end-around the Bill of Rights and other constitutional amendments (like the 13th Amendment, which clearly bans slavery) that protect individual rights. For example, I don't think Congress could say "join the Catholic Church or pay a tax"---that'd violate the First Amendment. Forcing you to buy insurance, on the other hand, doesn't run afoul of the Bill of Rights as the Supreme Court has interpreted it. So not only is there no structural limit on Congress's ability to force you to do that, there's also no rights-based limit either.

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  3. Most obvious application of the Roberts's Rule of Taxation: All citizens are order to by a General Motors vehicle . . . or pay a tax in the amount of the vehicle's cost. Perfectly legal.

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