Skip to comments.John Roberts' Travesty, Point by Point
Posted on 07/08/2012 9:51:49 AM PDT by greyfoxx39
John Roberts didnt defer to Congress in the ObamaCare case; he just re-wrote the law... This isnt judicial minimalism; its judicial meddling.
There is a good reason why not even most liberal commentators are applauding the actual legal reasoning Chief Justice John Roberts used to avoid striking down the ObamaCare law: The reasoning is thinner than unleavened bread, and crumbles to dust not just upon gentle handling, but merely under the weight of a piercing gaze.
Let us count the inanities, inconsistencies and constitutional/statutory infirmities of the key section of Roberts decision, which ruled that the ObamaCare mandate-and-penalty is a tax, and a constitutionally permissible tax at that.
First, much has been made of Roberts assertion that something that is not a tax for purposes of something called the Anti-Injunction Act (AIA) actually is a tax for constitutional purposes. In truth, this is the least indefensible of Roberts intellectual apostasies. It is possible, as he demonstrated from precedent, to have two different standards for when something qualifies as a tax. The problem is not with the theoretical (if exceedingly rare) concept of two different legal standards, but with Roberts tendentious application of it.
The very example he uses to prove his point that two standards can apply actually argues against calling it a tax in this particular case. Roberts cited the Drexel Furniture case from 1922 but, to quote from that case, [T]here comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment. Such is the case in the law before us . Congress does achieve the [effect of a penalty rather than a tax] by adopting the criteria of wrongdoing and imposing its principal consequence on those who transgress its standard.
Obviously, that is exactly what happens in ObamaCare as well.
Second, although Roberts went on to discuss other aspects of the Drexel Furniture case, one of which was something called a scienter requirement (meaning a conscious or knowing violation), he then blithely distinguished ObamaCare from it by saying the health-care law has no explicitly expressed scienter requirement. This is nonsense because in short order, he explained another reason the mandate does not carry a penalty is specifically because it allows citizens a conscious choice to ignore the mandate (and pay the government fee instead). So which is it, a conscious violation or not? He cant have it both ways. Scienter existing de facto is still scienter, whether or not it is explicitly named.
Third, Roberts says the penalty can be deemed a tax largely because the Internal Revenue Service a tax-collecting agency collects it. In Drexel, he explained, the fact that part of the enforcement came from the Department of Labor a non-tax-collecting agency made it therefore not a tax. Oh, really? In that case, why isnt it significant, as the four conservative dissenters note, that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be foundin Title IX, containing the Acts Revenue Provisions.?
If Roberts cares so much about where a function is located, then why doesnt he care that the law itself locates the mandate in a Title not dedicated to revenues? After all, in another section, Roberts himself says that the essential feature of any tax is that it produces at least some revenue for the government. This mandate, however, is meant to discourage revenue, because it is designed to impel everybody to buy health insurance and thus avoid paying any penalty at all.
(For that matter, why isnt it significant that ObamaCares mandate, like the Drexel penalty, is partially enforced by an agency other than the IRS? The Obama administrations own high court brief notes that the IRS and the Department of Health and Human Services are the two agencies to which Congress assigned authority to administer the mandate.)
Fourth, Roberts makes the extraordinary claim that Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS and that the IRS is forbidden from using criminal prosecution to penalize those who refuse the mandate. The problem here is that the IRS can withhold income tax refunds from those who refuse to pay the penalty, and it can choose to apply ordinary income taxes to the penalty first, before crediting the citizen with having paid his due income taxes and then the IRS can impose a penalty for failing to pay those taxes, and then prosecute or garnish wages for failing to pay that penalty.
In effect, just as funds are fungible, so too are the enforcement mechanisms of the IRS fungible so that, in the long run, there are indeed some hugely negative legal consequences to not buying health insurance.
Fifth, Roberts posits a hypothetical situation involving the government requiring that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS . No one would doubt that this law imposed a tax, and was within Congresss power to tax. But thats not true at all. I know lots of people who would say this is a penalty, not a tax, and that it was wholly outside of Congress powers. (More on Congress powers in a moment.) Think about it: Have you, dear reader, ever in your life been assessed a tax specifically because of something you did not do? Of course not.
Sixth, Roberts discusses the constitutionality of such a tax by rejecting the plaintiffs complaints that the penalty would amount to an unconstitutional direct tax (if it were a tax at all) but Roberts himself never takes the next step of identifying which sort of tax it actually is, if not a direct one. Nor does he bother explaining how it can be constitutional if it is another form of taxation. This is all rather abstruse, but the Wall Street Journal absolutely blew away Roberts failure to identify what sort of tax it is, and his apparent belief that Congress taxing power is infinitely elastic. (Please read the WSJ editorial here.).
Seventh and this is a real howler Roberts makes this absurd assertion: 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 everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. This misses the point entirely. A capitation tax is one of the direct taxes discussed above, and is assessed equally per person. It is the person, not the inactivity that is being taxed.
What is at issue with ObamaCare is not that individuals are trying to avoid taxation via inactivity, but that the government is taxing actually, penalizing only the inactivity. People avoiding the mandate arent avoiding a tax through inactivity, they are avoiding a purchase of a private service (insurance) they do not desire to have. Government has never taxed the decision to remain inactive in any sphere, at any time.
Eighth, as I have argued elsewhere, Roberts makes the dreadful mistake of wildly conflating tax breaks or incentives on ownership or activity with a new tax on inactivity (as if the two a tax on the one hand, and a tax exemption on the other are among the same species and breed of beast). He seems to think that just because Congress can offer a tax incentive, such as a new home-owners exemption from property taxes, this is in the same ballpark as taxing the refusal to buy a product. Thats crazy. The property tax is generally applicable, and already in existence before the tax break. But theres no generally applicable health insurance tax from which purchasers of insurance are exempt.
(In that light, lets go back to energy-efficient windows. In congressional testimony in March of this year, Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network, said this: Historically Congress has induced purchases through tax incentives or by conditioning other government benefits on purchases. If the governments position is correct in this case, these workarounds were clumsy and inefficient solutions to a problem Congress could have more easily solved by directly compelling purchases . Instead of offering incentives like Cash for Clunkers or tax credits for energy-efficient home improvements, Congress could have required individuals owning non-energy-efficient vehicles or homes to exchange or upgrade them. If the government truly had this simple and direct way of achieving its goals, it would have exercised it long ago, and for emergencies far more pressing than health care reform.)
Ninth, Roberts skates over what should be an absolute requirement to determine if the fee for non-purchase is intended to penalize a desired lack of behavior which would make it invalid as a tax by writing that More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. That doesnt, of course, excuse him from examining the regulatory intent at all and, as is almost incontrovertible, the mandates penalty was intended by Congress far from primarily as a revenue measure, but rather as a way to compel behavior. Such an intention makes the penalty anything but a tax, and anything but an allowable use of Congress enumerated powers.
All of which is to say that Roberts has conjured up an unskilled magicians attempt at multiple sleights of hand. As has been well discussed elsewhere, Roberts himself has acknowledged that accepting the penalty as a tax is hardly the most straightforward or most natural reading of the law. Nonetheless, he explains (citing precedent), every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. But here, again, he stretches precedent completely out of all reasonable context.
The maxim to choose an interpretation of a law that would accept the law as constitutional, over an alternative interpretation that doesnt, is meant to apply in cases where the two interpretations are equally or near-equally reasonable. Here, though, as we have seen, Roberts had to strain and stretch and twist and skate and float and use misdirection in order to somehow, some way, pretend to impose a plausible interpretation on an assertion that is not even in the same logical solar system as interpretations that are straightforward and natural.
If Congress wanted to create a taxing system to fund ObamaCare or to incentivize insurance purchases, it could have done so. This isnt just a matter of changing labels; it would have required a significantly different scheme. As the conservative dissenters noted, We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty . Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
John Roberts didnt defer to Congress in the ObamaCare case; he just re-wrote the law (on the mandate and on Medicaid) by himself in order to save Congress handiwork from its own infirmities. This isnt judicial minimalism; its judicial meddling. It is both unsightly and unseemly. And it probably did lasting damage to the Constitution, the court itself, and to the free society both Constitution and court are meant to safeguard.
Judge Roberts' decision is a wake up call to Americans telling us that a BS decision from Congress and President (idiots voted into office by the American people) is LAW -- whether we like it or not.
In so doing, Roberts is forcing Americans to take it, and perhaps change it, via elections.
The Supreme Court is not a law making organization: the legislature and executive branches of government are.
Once again, Roberts voted WITH Kagan, Sotomayor, Ginsburg and Breyer!!!!
How can you defend that?
Roberts HAD to rewrite that law. Otherwise his blackmailers were going to expose his homo past.
You mean his homo present, as well.
He simply ignored the “plain meaning” rule of statutory construction, turned his court of law into one sitting in chancery and hauled out an equitable maxim that fit his foot.
So he made law—which he/the court can do—but saying that he was deferring to the legislature is as disingenuous as the Democrats saying:
“It’s not a tax—heavens no—at least for political purposes! But it is a tax (as we argued before the court) if that’s the only way we can get into the public’s pockets.”
“Judge Roberts’ decision is a wake up call to Americans telling us that a BS decision from Congress and President (idiots voted into office by the American people) is LAW — whether we like it or not.”
NO,, it was Roberts responsibility, his task, the only thing he’s paid for,, to strike down such a law that is a clear violation of the constitution. He did us no favors.
You might have a point. It’s clear that they own him.
Roberts HAD to rewrite that law. Otherwise his blackmailers were going to expose his homo past.
That appears to be it. And maybe his homo present.
If my recollection from earlier posts on this, the obamatax that was forced through Congress contains the stipulation that the government has the right to direct access to your bank account. In other words, if you don’t pay it, they can take it.
“The Supreme Court is not a law making organization”
That’s what they say, but watch what they **do** with, say: abortion, prayer in schools, holiday nativity scenes, automatic weapons, freedom of expression & assembly, 5th amendment takings of private property, and on and on.
So do you believe the Court should not have the power of judicial review?
bump for later reading
I think the conservatives on the SCOTUS made it very plain in their dissent that Roberts did not "review" but flagrantly took it upon himself to write new law".
Roberts would have allowed Hitler’s “Enabling Law” on the basis that it wasn’t his job to protect the German people from the consequences of their actions.