Skip to comments.Congress can compel action due to public necessity (Did John Roberts use Laurence Tribe's argument?)
Posted on 06/29/2012 7:56:37 AM PDT by Qbert
THERES PLENTY to be said as a policy matter both for and against the Affordable Care Act, but its beyond reasonable debate that it complies fully with the Constitution...[Snip]... The one provision whose constitutionality is questioned is the individual mandate...[Snip]
That mandate, too, is constitutional. Congress found that the cost of providing uncompensated care to the uninsured totaled $43 billion in 2008, raising annual premiums for the average family by over $1,000. Suppose Congress had required anyone who received medical care at public expense in 2010 to purchase insurance for 2011 or face a modest increase ($750 per year) in federal income tax liability.
Yet the only difference between that requirement and what Congress enacted is that it chose not to wait for someone to take a free ride on other taxpayers before imposing a preventive measure to guard against shifting the economic burden of ones health care to others in this multitrillion-dollar interstate industry. [Snip]
Challengers focus on how the increase in tax liability penalizes what they call inaction rather than action. Thats an illusion. Decisions to wait and see are actions that shift costs to others and risk the viability of insurance reform. Besides, nothing in the Constitutions text, history, or Supreme Court precedent suggests anything improper about regulating commerce or imposing taxes to create incentives to act rather than incentives to refrain from acting.
There may be a right to refuse unwanted medical care, but there is no comparable right to insist that ones medical care be paid for by others. Besides, this law doesnt literally force anybody to do anything; it just increases the tax liability of those who refuse to buy insurance.
(Excerpt) Read more at boston.com ...
"There may be a right to refuse unwanted medical care, but there is no comparable right to insist that ones medical care be paid for by others. Besides, this law doesnt literally force anybody to do anything; it just increases the tax liability of those who refuse to buy insurance."
If you've read the majority opinion, I think you can see where John Roberts may have gotten his key argument- the argument that turned the case. Laurence Tribe has been awfully vocal lately, boasting about this very article from a year ago in a SCOTUSblog post today, and predicting just a few days ago that John Roberts- Tribe's former student- would uphold the Obamacare law...
We've also been inundated with reminders of the horrible, horrible, partisan 5-4 decision in Bush v. Gore ... which Tribe argued and lost. There was intense pressure on Roberts to avoid such a supposedly "political decision". So, was Roberts convinced by his old law professor's main argument to avoid such an outcome?...
No, I'm not congratulating the CJ on his clever opinion. The guy is apparently Tribe's "mini-me".
I have to agree. The ACA isn’t some watershed violation.. its been coming down the pike since the courts decided that (IIRC) the “general welfare” clause could be stretched to include damn near anything the government said was a “compelling interest” or some such.
Just another nail in the coffin of liberty.. albeit a particularly noxious one.
Free Americans can also choose inaction due to public necessity.
I’m due for new clothes (actually very far overdue and was finally going to give in before the election), but I’m waiting five more months. I will not be spending one cent unnecessarily between now and election day. I will buy the minimum food, fuel, and energy to get by, but I will not eat out, travel, vacation, buy new clothes/toys/gadgets, or otherwise contribute to economic activity between now and election day. It’s not much, but it’s one thing I can do to demonstrate that ObamaCare is bad for America. The exceptions? I will continue buying emergency supplies to be prepared for emergencies.
"No, I'm not congratulating the CJ on his clever opinion. The guy is apparently Tribe's "mini-me"
Yep. If my suspicions are correct, Roberts was duped by the same secretive backroom nonsense that concocted Obamacare in the first place.
Roberts' wondrous "legacy" will one of severe rationing for average Americans and economic destruction.
These Constitutional know-it-alls really crack me up. They act like its all SO mysterious, and that only those with vast legal knowledge (or just really loud opinions) are the only ones capable of determining the Constitutionality of anything.
Here's a simple litmus test anyone can use:
Beginning with the fact that government derives all its legitimate authority from the People, ask yourself a couple of simple questions. Do I, as an individual, have the legal ability to force anyone to purchase a product of any kind? Does any individual possess the legal ability to force me to purchase same?
If the answer is no, then its unconstitutional, as it is impossible to delegate a power one never possessed.
"George Will is claiming that this ruling is at least a semi-victory for conservatives because the Supreme Court struck down the Medicare Penalty provision, which was the mechanism in the law to get states to implement Obamacare or lose medicare funding. According to Will, states with Republican Governors and legislatures, can fold their arms and refuse to set up the exchanges or even allow one drop of state resources to be used for implementation or enforcement of Obamacare, with total impunity."
And what do you think Obama- the guy who went so far as issuing an Executive Order to force churches to violate their religious beliefs in order to implement Obamacare provisions- is going to say to that?...
Well, if the Boston Globe says so, I guess I won't complain any more, being an eminently reasonable person.
"Free Americans can also choose inaction due to public necessity."
I think what the leftists are so giddy about with this decision (besides the obvious) for the long run is something that some of our supposed geniuses (George Will, etc.) still haven't figured out:
Roberts holding, while giving lip service to placing limits on the Commerce Clause (which future left-majority Supreme Courts will ignore anyway, if necessary) gives Congress an immense new power to regulate everything under the sun through taxation... without the necessity of even calling it as such, or meeting the requisite Constitutional requirements to be a "tax". Democrats and squishy Repubs will hike taxes through "fees", "licenses", "penalties", etc.- all the while getting the benefit of saying they didn't actually "raise taxes".
We may be free to chose inaction... but I fear, not for long.
The answer could not be simpler. Vote OUT the sort of politician who would do this and keep voting them out. If we cannot do that and they go on and do as this article suggest they can then we get exactly what we deserve.
Anyone who whines about the Dems and then refuses to vote because the nominated candidate is not as pure as they would like fits nicely into the group who as described above who will get everything they deserve.
Congresses ability to tax is not infinite despite what some believe. You cannot continue to draw from a well which is running dry. Increased taxes and economic growth work inversely.
Finally as the very old saying goes, we will have exactly the government we deserve. I am pushing hard on 70 yrs of age and I have mine and it is where no one can touch it. I vote straight Republican every single time and have since about 1962 and will do so until I die. I can do no more but I feel no sympathy for those who decry Obama as evil incarnate and the beginning of the end for America if he wins a second term and THEN turn around and say they will not vote for the Rep nominee because, well, he’s not “Conservative enough”.
If I have to list in this forum reasons why a rusty tea pot is better then the schmuck in the WH now then we all are lost so I will not do so. I talk to people all the time and those people I do attempt to persuade to vote against Obama and cite reasons of which there are plenty. Should it all come to naught then I at least will feel comfortable that I have given it my very best shot and did not simply complain about the candidate being a RINO (which he is). RINO, rusty tea pot, pile of rotting garbage ALL are preferable to what we have now.
We get everything they deserve, unfortunately.
Earth to Tribe: your student threw part of the ACA out yesterday. So it’s not crystal clear that it complies with the Constitution.
We shall go on to the end, we shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and even if, which I do not for a moment believe, this Island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God's good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old.
- Winston Churchill
“Besides, this law doesnt literally force anybody to do anything; it just increases the tax liability of those who refuse to buy insurance.”
Traffic laws don’t literally force anybody to do anything; they just increase the money paid to government by those who refuse to follow traffic laws.
Laws against theft don’t literally force anybody to do anything; they just increase the time spent in jail by those who refuse to not steal.
If a similar law were passed with regards to abortions (or abortion access or follow-up medical care for those who had one or more, whatever) or voter-identification legislation, would you feel the same way, or would those be "undue burdens"?
Obama Care is gong to affect and disrupt the entire economy in ways we cannot even imagine at this time. Taxes always drive behavior.
Like any other government tax, fee or penalty, people will find ways to legally evade the tax or reduce their obligation.
As a starter, they will move themselves and their capital into occupations, businesses and industries that have been granted Obama waivers.
Some may just drop out of sight, or live off the grid.
Others may just decide to leave the country.