Skip to comments.Roberts Didn't Expand Government's Taxing Power
Posted on 07/05/2012 2:42:28 PM PDT by neverdem
I've been a little surprised by the continued outrage on the right and chest-thumping on the left regarding the Supreme Court's health care decision. The right got everything it wanted in the ruling, save for the actual outcome. The left got legal reasoning that, up until the minute the decision was handed down, it had maintained would mark the end of government as we know it. Sad to say, but the main takeaway is that most court-watchers, left and right, care a lot about the outcome and very little about the law.
Some on the right are latching onto one bit of doctrine as cause for unhappiness in the case. In particular, they claim that John Roberts expanded the governments taxing power substantially, such that it now provides an endless capacity that Congress lacked with the commerce clause.
This is nonsense. There are two reasons why. First, all nine justices, and even some of the lawyers arguing against the health care law, agreed that the individual mandate could be enforced under the power to tax. Heres the joint dissent: Of course in many cases, what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action, or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. . . . The issue [here] is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so."
In other words, the fight among the justices was not an epic struggle regarding the extent of the taxation power. It was a rather mundane fight over statutory interpretation, and whether the mandate, as written, could be construed as a tax or not...
(Excerpt) Read more at realclearpolitics.com ...
Yes he did. Now congress can pass a tax on anything or nothing. I think it’s pretty clear that this is the first tax for not purchasing or using something.
Let’s see: first Bob Tyrrell, and now this clown, masquerading as a constitutional scholar. The “backlash” against the “backlash” campaign seems well and truly under way, with the “silver lining” crowd trying to recapture their lost ground.
Did’t Roberts set dangerous precident by changing the wording in a statute under review in order to approve it?
Couldn’t future courts do the reverse?
Couldnt future courts do the reverse?
It's unlikely that future courts would do the reverse. Courts, in general, are hesitant to overturn a statute if there is a way to construe the statute in a way that makes it constitutional. So, while a court may stretch the language of a statute in order to avoid overturning it (as the Court clearly did here), it's much less likely that a court would stretch the language of a statute in order to overturn it. In general, that's a good thing (as it limits the role of the courts), though in this case it led to an incorrect result.
Once upon a time an old man was trying to nap in the town square in Hammama, while some children exuberantly kicked a ball. Eventually their youthful play became too boisterous for the old man to ignore. He sat up and said, "Why are you children kicking a ball in the square in Hammama on such a hot day? Don't you know that over in the square in the next village they're handing out oranges?"
Upon hearing this, the children ran off, leaving the old man to drowse in peace. But within just a few minutes, he sat up, scratched his head, and thought, "Why am I napping in the square in Hammama on such a hot day, when they are handing out oranges in the next village?"
Conservatives, sadly, seem to have a capacity at least as large as the Arabs to delude themselves, as this article (and many others like it) prove.
Here's just one example of how tortured the author's "thinking" is in the instant case: He claims that people with the same income are paying two different tax rates if one buys an electric car, while the other fails to, because there is a tax incentive to buy electric cars. So far, so good... He then assures us that this is the same thing as paying a higher tax rate if one doesn't insure for health care.
"Consequently" he reasons (and I use both words very guardedly with respect to this author) Congress already has the power to do what Roberts' claims in his ruling.
But he is apparently unaware of the nature of the argument against the mandate. Whatever the tax consequences, neither of the taxpayers' in his example is forced to buy an electric car. Both make a voluntary decision. Neither would pay any penalty for refusing to buy a car. The author's argument that the differential tax rate is the same thing as a mandate to buy health insurance is as silly as the argument that I did not buy my daughter a car this year, but my neighbor did, and that therefore I have "saved" $30,000.
This idiocy has to stop.
The people trying to make an argument that Roberts has handed the left a stinging defeat are jackasses, and they need to be anathematized from conservative, libertarian, and Constitutionalists' company.
We lost. The decision is a shattering betrayal of the concept of limited government. It is the Dred Scott decision of our time.
Hey Trende, Roberts voted with Kagan, Ginsburg, Sotomayor and Breyer! Do I need to say anything more? He’s a freaking, cowardly traitor!
There is so much social engineering already in the income tax code that either taxes you; or exempts you from taxes; or grants you a “tax credit; that I don’t really know why this particular one makes people more upset than all of the other ones...
Yeah, maybe this one is the first one to “penalize you for not doing something” but that is just one little slip down the slope from all of the paragraphs that “reward you for doing something” that have been in the income tax code for decades.
...traitor Roberts commanded that, unlike any other tax in US history, the Obamacare tax cannot be constitutionally challenged once it takes effect.
the treasonous bastard is a one man Warren Court!!!
There is a huge difference between offering a tax credit for someone deciding to do something and taxing someone for not doing something. The latter is a federal police power that did not exist until June 28, 2012. Now people can be compelled to do what the federal government wants, and if they don’t, they can be taxed and put in prison for not paying the tax. This is how you create a Fascist state.
And the real biggie that so many are missing is that the states are now allowed to opt out with no penalty against current federal payments.
And this probably can be applied to the dept of education, state DOT programs and a host of others that have done our freedoms endless damage.
Further, making this law a tax law dooms it because it will collapse due to lack of funding, not only because we will vote against the tax, but because with 25% to 40% of the states opting out, the tax base for it will be decimated and the costs for those who opt in will go through the roof. And certainly no senator from a state who opts out is going to vote in the budget committee for funds to support it.
This is an opportunity to cure lots of bad law in addition to the bad health law.
“...huge difference between offering a tax credit for someone deciding to do something and taxing someone for not doing something...”
You don’t have kids? You don’t get the tax credit...
You don’t have a mortgage? You don’t get the tax credit...
You don’t give to charity? You don’t get the tax credit...
You don’t contribute to a 401K plan? You don’t get the tax credit...
You didn’t put in a new high efficiency air conditioner? You don’t get the tax credit...
You didn’t buy an alternative fuel vehicle? You don’t get the tax credit...
You don’t have health insurance? You don’t get the tax credit...
Such as it ever was, such as it ever was...
Exactly how did that power change? It appears that Congress got that power in the Constitution. Could the problem be in the people we elect?
It looks like the only limit on the power to tax rests with the people.
Justice Roberts actually echoed the same reasoning as a prior Justice Roberts in regarding the federal power to tax and spend for the “general welfare,” in U.S. v. Butler, 297 U.S. 1 (1936) regarding the Agricultural Adjustment Act. http://supreme.justia.com/cases/federal/us/297/1/
That Justice Roberts (for the Court) stated:
“The clause thought to authorize the legislation, the first, confers upon the Congress power ‘to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. ...’ It is not contended that this provision grants power to regulate agricultural production upon the theory that such legislation would promote the general welfare. The government concedes that the phrase ‘to provide for the general welfare’ qualifies the power ‘to lay and collect taxes.’ The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted. Mr. Justice Story points out that, if it were adopted, ‘it is obvious that under color of the generality of the words, to ‘provide for the common defence and general welfare’, the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers.’ The true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare.”
In that case, as in the current case, the Constitution grants the power to lay taxes for the common defence and general welfare of the United States. However, this does not extend to the creation of a federal program that exceeds the limits of the enumerated powers and invades or compels an area reserved to state jurisdiction.
Looks to me that these principles were decided decades ago.
Trende's point (which is an accurate one, if you read the entire decision & dissent) is that Roberts' agreement with Kagan, Ginsburg, Sotomayor and Breyer had nothing to do with the Constitutional power of Congress. All nine justices agreed that Congress has the power to impose a tax on people who do not purchase health insurance. That point is the point that expands the power of Congress
Rather, Roberts' agreement with the liberals (and disagreement with the conservatives) was not related to Congress's power to impose such a tax, but rather whether Congress did so in this particular case. That's obviously an important point within the case itself (and the outcome of the case itself is obviously important, and terrible), but it's not likely to have broader impact on future cases. The point that will likely have impact on future cases is the power of Congress to tax inactivity, and, unfortunately, on that point, all nine justices agreed.
I don’t think it’s going to be a “tax credit”....you will get CHARGED an extra $2000 for having no kids...
The one that makes my blood boil is the rule that you pass a law that does not allow anyone younger than 21 to drink a beer.
So we see these young men with no arms, no legs, a result of their volunteering to go to Afghanistan, unable to drink a beer even though they are encouraged to be killed....
But that is not manipulation by tax?
All states collect federal gas tax and various other road taxes, send it to DC but then are told to jump through hoops if they want to get any of it back.
But until now the federal gangsters have not had the power to shape our lives through taxation?
The taxation of the public and then the threat of withholding that tax from them has been one of the most dictatorial king-like powers of the federal government.
What a friggin' ASS CLOWN.
Transcript...@Supreme Court: The Health Care Law And The Individual Mandate
It's got this little number in it...
The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power.
It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.
Sounds to me like Congress knew it was a tax during debate.
@It Was Always a Tax
In part...Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers.
Snip...House Democrats likewise argued that Obamacare is constitutionally justified as an exercise of Congresss power to levy taxes and spend money. Thus, Rep. George Miller of California said:
A really good article, IMO.
Be sure to read this...
I rather liked this towards the end...
I love all of these posts. The more people see what was actually done the more irate they'll be.
And this is why Scalia and Thomas dissented.
COME ON, GET A CLUE.
NONE of the examples you cited included a person PAYING A TAX because he purchased NOTHING or peformed NO ACTIVITY.
Fail. You lose.
“...If I do not to have health insurance, then my tax liability goes up via the tax penalty.
I call that not the same thing...”
You dont have kids? Your tax liability goes up...
You dont have a mortgage? Your tax liability goes up...
You dont give to charity? Your tax liability goes up...
You dont contribute to a 401K plan? Your tax liability goes up...
You didnt put in a new high efficiency air conditioner? Your tax liability goes up...
You didnt buy an alternative fuel vehicle? Your tax liability goes up...
You dont have health insurance? Your tax liability goes up...
Same damn thing.
In some cases, it may be appropriate for judges to pretend that statutes say things slightly different from what's actually in the text, if what the text actually says would be unconstitutional or meaningless, but it's fairly clear (possibly from legislative history) what the statute was supposed to say. This occurs most often in cases where some sections of the law get renumbered without properly updating other sections that make reference to them. It has long been considered perfectly proper for judges to apply minor tweaks to a statute in cases where the text of the statute was clearly erroneous (e.g. section 123.4 of a statute says "Except as described in 123.6, various rules apply"; section 123.6 has nothing to do with the situations in question, and section 123.7 begins, "Exceptions to 123.4 include..."); it would not be judicial overreach to interpret section 123.4 as referring to section 123.7.
The bigger problem here is that the Court has dropped any pretense that legitimate taxes must at least claim to be intended to raise revenue, rather than punish behavior. Ironically, Roberts threw the concept of "legislative intent" completely out the window. The people who wrote the legislation used the term "penalty" to refer to the monies people would have to pay if they didn't buy acceptable insurance. It's pretty clear they intended that the fines were intended to be considered punitive. In order to justify his decision, Roberts is declaring that he knows better than the legislature what they meant when they wrote the legislation. Judicial activism in the extreme.
You don’t buy health insurance, you don’t get a health insurance tax credit makes sense. If that is the way they had set it up, I would not say a word.
But forcing people to buy health insurance or they get a tax penalty is an entirely different story. It may just be semantics to you but giving people an incentive to do something is very much different from penalizing them for not doing something.
The first case you have a choice to get the incentive or not. It will only cost you the incentive. The second case costs you either way. You have to pay for something you would not normally buy. Or pay a tax for not doing it.
I would not label that mere semantics.
You don’t have any earnings or pay any taxes?
You get tax credits.
And now you get `free’ health care.
So don’t worry about paying that ambu-lance bill next time you
lay your old lady out `cause her tongue is hinged on both ends.
“...NONE of the examples you cited included a person PAYING A TAX because he purchased NOTHING or performed NO ACTIVITY...”
You dont have kids? You pay more taxes because you purchased nothing or performed no activity...
You dont have a mortgage? You pay more taxes because you purchased nothing or performed no activity...
You dont give to charity? You pay more taxes because you purchased nothing or performed no activity...
You dont contribute to a 401K plan? You pay more taxes because you purchased nothing or performed no activity...
You didnt put in a new high efficiency air conditioner? You pay more taxes because you purchased nothing or performed no activity...
You didnt buy an alternative fuel vehicle? You pay more taxes because you purchased nothing or performed no activity...
You dont have health insurance? You pay more taxes because you purchased nothing or performed no activity...
“...Epic fail...Fail...You lose...”
No, what has failed is “We the People”.
“...If that is the way they had set it up, I would not say a word...”
What difference does it make as to “how they set it up” when the effect is the same?
“...What’s in a name? That which we call a rose by any other name would smell as sweet...”
[Romeo and Juliet Act II. Scene II]
You don’t get it.
You don’t get it.
I agree with you that there is a full line of tax abuse where they can FAVOR people for certain purchases.
What you seem to be completely oblivious to, is that Roberts has given them a 2nd full line of tax abuse to employ.
So today childless people can’t receive a tax break that people with children get. Tomorrow, not only will childless people get the tax break you don’t get, but you will also be subject to paying ADDITIONAL TAX MONEY OUT OF POCKET to the government because you lack children.
Do you get it yet????????????????????????????????????????
Yes, I agree that I am penalized if I don’t get a tax break for not owning a home. I get it already? Do you get it that ON TOP of my not getting a tax break for not owning a home, because of Roberts the government can now make me pay ADDITIONAL TAX MONEY OUT OF POCKET because I don’t own a house.
Take every single example you gave. In every example, you simply lack the benefit someone else receives.
What just got changed is, in addition to lacking the benefit others received, you can not be assessed an additional PUNISHMENT on top of it.
You don’t think that is significant?
So, let me see if I understand you...
You think that
a plus in the minus column
is not the same as
a minus in the plus column.
You’re right, I don’t get it.
You sound like Charlie Brown’s teacher:
“...Wa Waaa Wa Waa Wa...”
A tax credit and a tax penalty are not the same thing.
With the health insurance tax penalty I’m being penalized for not doing what the government is trying to coerce me to do. I have no option. Do as they say or be penalized. The IRS will enforce this.
There’s no coercion with tax credits. I don’t have to take a tax credit, even if I qualify for one. There’s no forced penalty if I choose not to take the credit. I’d be foolish not to take it, but there’s no IRS forcing me to.
The IRS didn’t hire 15,000 plus agents to force people to take tax credits.
You don’t have to pay. You just miss out on the credit.
You have to pay or you get fined.
Perhaps numbers would make more sense to you since words are going over your head.
If you pay 0 for health insurance and you choose to get 0 in tax credit.
No money out of your pocket at all
You pay 20,000 for a health insurance plan or you pay 8000 in tax.
Out of pocket here is 20,000 or 8,000 dollars. Way more than the 0 dollars in the first case.
Neither 8000 dollars nor 20,000 dollars out of my pocket is as sweet as 0 dollars. But if you’ve got that amount of money is just semantics to you, why not just hand it over to the govt. now?
Silly me. I thought the purpose of a tax was to raise revenue. Roberts says it can be used as a punishment imposed on those who fail to do what the government wants them to do. I also thought a tax was constitutional only if the revenue it raised was used to fund the common defense or promote the general welfare. If Roberts wanted to OK the mandate under the government’s taxing power he should have said so and sent it back to Congress to be re-written as a tax law. But no-—he, in a classic example of judicial activism, re-wrote the law himself.
“...A tax credit and a tax penalty are not the same thing...”
How so to the bottom line?
Go all the way back up to post 10.
“...There is so much social engineering already in the income tax code that either taxes you; or exempts you from taxes; or grants you a tax credit; that I dont really know why this particular one makes people more upset than all of the other ones...”
The point is that once you go down the slippery slope of social engineering in the tax code, (reward you for this; penalize you for that) that this kind of thing should be expected as a “next step” down the slope.
It is just like when “minimum wage” laws went into effect and people not being able to see the possibility of legislating a “maximum wage”.
He seems to think taxing inaction is ok, equally he seems to forget that boundless taxing power has never sat well with the American people nor is it anywhere enumerated that congress may carve out such social engineering “exceptions”.
There are non-uniform powers congress & the president have usurped from the people and had rubber stamped by their hand picked employees in black robes.
By attacking both and condemning Roberts for his treacherous (not merely foolish) act against the Constitution. We are asserting and calming ground that was rightfully reserved to us. Ground we must hold.
“When we release the surly bonds of sanity,
we don the shimmering wings of madness,
and fly on wings of great power.”
Don't actually meet the new national guidelines for the HHS' new health regimen?
Well, I'm afraid that'll be something else you'll have to tabulate on your 1040...
It is a gigantic “slip”,into the endless domain. Whereas before you actually had to earn or do something to be taxed and could only be taxed as much as(presumably much less than) what you earned. Now by your mere existence you can be taxed into debt.
That is right it is now possible under this usurpation for the government to not only make us collective debt slaves but individual debt slaves. Compete slaves to the State now.
This is crap. The outcome is everything. This entitlement is the final nail in the American coffin & it will never be undone. SCOTUS was the last hope.
Since all this bullshit would be impossible without the 16th Amendment, it confirms my suspicion that we have always been potential slaves ever since the the Marxist abomination known as the "progressive" income tax was implemented.
Repeal the 16th Amendment, and there is no such thing as a non-apportioned direct tax, thus there is no effectvie mechanism for Congress, the President, or the Judiciary to enslave the People in this manner.
Income taxation has always represented the power to turn us into virtual slaves, and it's time to admit the truth and repeal this central plank of the Communist Manifesto.
So whoever doesn't like this decision (I sure don't) should change their focus to repealing the 16th Amendment, IMHO. The enforcement and taxation mechanism under which this tax is being justified is the income tax, and I just don't see how the ferragummit could justify such power in the absence of the 16th Amendment.
To me, this is an epiphany. I've always hated the income tax, and now I see more clearly than ever why. The 16th Amendment is Tyranny incarnate...
I think the article is completely misleading. The dissent did not say that the penalty could have been imposed as a tax. The dissent did say that in many cases, things that would not be authorized by the Constitution as a regulation can be authorized as a tax. However, the dissent did not make a finding as to whether that was the case in this particular situation. And the reason they did not do so is because they did not see that as the issue - instead they saw the issue as whether the penalty actually was a tax. Roberts is a bum.