John Roberts' Travesty, Point by Point

John Roberts didn’t defer to Congress in the ObamaCare case; he just re-wrote the law... This isn’t judicial minimalism; it’s 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.”

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 can’t 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 isn’t 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 found—in Title IX, containing the Act’s ‘Revenue Provisions.’?”

If Roberts cares so much about where a function is located, then why doesn’t 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 isn’t it significant that ObamaCare’s mandate, like the Drexel penalty, is partially enforced by an agency other than the IRS? The Obama administration’s 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 Congress’s power to tax.” But that’s 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 aren’t 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-owner’s exemption from property taxes, this is in the same ballpark as taxing the refusal to buy a product. That’s crazy. The property tax is generally applicable, and already in existence before the tax break. But there’s no generally applicable “health insurance tax” from which purchasers of insurance are exempt.

(In that light, let’s 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 government’s 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 doesn’t, of course, excuse him from examining the regulatory intent at all – and, as is almost incontrovertible, the mandate’s 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 magician’s 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 doesn’t, 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 isn’t 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 didn’t 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 isn’t judicial minimalism; it’s 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.

"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."

I think you are correct. What I am really asking is what would they do if there was widespread non compliance on supplying information even if you do have insurance. I wonder if they would tax you like you don't have insurance, separately fine you for not filing a complete tax return, or what? The IRS needs to be buried by a widespread movement that says we will not comply.

The author is right on. The question remains, however.....WHY did Roberts stunningly hand to Obama the thing the marxist president wanted and needed most...the legitimization of his signature legislation for socialized medicine, namely, ObamaCare.

My theory is that the answer will perhaps never be found because it lies in the act of Obama's second swearing-in ceremony.

Recall, the first swearing-in was in public and was bungled. To be safe, Roberts ostensibly applied the oath to Obama in a second ceremony held in private and veiled in secrecy.

There was no Bible at the second oath. Besides the Chief Justice and the Usurper, there were no witnesses other than Obama's thugs, Axelrod and Gibbs, and perhaps an anonymous aide or two. No cameras or tapes recorded the deed as should have been done for an historic act, even an act to correct a bungle.

Did something happen.....or maybe more importantly, did something NOT happen at the second oath-taking? Is there a dark secret about that singular rite which was unrecorded and remains shrouded in a purposeful black-out?

Did Justice Roberts (or maybe even Obama) "bungle" something vital again during the second oath session....and therefore Roberts ended up "owing" something to Obama in regards to him being a legitimate president...and the "payback" came in the form of Roberts' bizarre legal opinion granting Obama his heart's desire and "legacy"?

Something is and was never right about Obama's two immaculation swearing-ins to the office of the presidency. But lips are sealed and the nation is permanently in the dark about the whole affair.....unless.......

Leni

How can you defend that?

Easily!

Google "Dred Scott" and "Frederick Douglass."

The Supreme Court Dred Scott decision MADE law in declaring slavery legal; and it made Frederick Douglass (a brilliant negro) happy in that the lousy Dred Scott decision led to Civil War ... to free slaves.

Roberts is making history ... in a way that's remindful of the Dred Scott decision. What we have now is a lousy LAW that came from "Democrats."

There was no severability provision.

Part of the law was declared unConstitutional.

The whole law should have been struck down and sent back to the (new) Congress elected in 2010, from whence it wouldn't re-emerge.

The people did speak.

Roberts refused to hear. He now bears the responsibility of making a partisan political ruling against the wishes of The People. He'll never be remembered as the second coming of John Marshall.

The federal government does not have the authority to compel me to buy a product. Any assertion that they do is simply wrong. As a power not enumerated to the feds, it’s is clearly left to the states. It’s right there in the very unfashionable black and white. The commerce clause was designed for one basic thing. To keep states from enacting interstate tarrifs.
Defend Roberts all you want. But the homo was blackmailed and basically sold his vote. However you slice it, the healthcare law was a fundamental transformation of America into the exact opposite if what our constitution laid out.

Roberts couldn’t see that. By Roberts logic, anything passed by congress is legal.

He now bears the responsibility

Bearing responsibility means absolutely nothing, ask Janet Reno what the cost was to her, nothing.

It is the burden that counts, and that falls on the people. Old people that are not suicidal will start to avoid hospitals like the plague, and most doctors will have no problem taking on their new responsibilities

I believe in fact that they just did make law

American laws come from legislatures (and/or local authorities), and executives such as Presidents, Governors and etc.

The Supreme Court's job is to determine whether a law, even clumsy law, adheres to the US Constitution.

The ObamaCare law might stink to high heaven, but clumsy wording as to whether a fine is a tax, or vice versa, isn't enough to overturn a legitimately passed lousy law.

As hard it might be to take , Chief Justice Roberts did America a favor in voting as he did.

It's my hope that the ObamaCare issue takes Obama and Obamanites down.

Remember this when you vote.

Where in the Constitution does Congress have the right to tax an individual for inactivity because they refused to purchase a "thing"?

Remember a penalty is different than a credit. Also, ONLY ascension to wealth triggers the income tax, excise, and direct taxation. What triggers the mandate "tax" and where is that penalty enumerated at?

Do you actually believe that the Founders promoted a Constitution in which they could have the right to tax individuals for an exhaling penalties because they did not purchase mandated oxygen credits? Ditto with the proponents of the 16th Amendment, even they were not draconian enough for that kind of "taxation" because of failure to purchase a certain "thing".

Roberts is a simple Statist who used the fine art of disingenuous lawyerese language/witchcraft that destroyed the spirit of the law in order to pull a rabbit out of his ass to justify a certain ideology. Roberts, Kagan, Sotomayor, Breyer, and Ginsberg treated the Constitution as a personnel play toy and read into “shadows” instead of intent. For that Roberts is another activist and not a promoter of negative rights upon the other two Branches (And of course, the current Court he sits on).

Who needs a Constitution when we have cheerleaders for activism, like yourself, who go orgasmic over this decision because it might win elections. Romney and the rest of the GOP leadership are too collectivist for my taste anyway; apparently you are too ignorant to tell what is going on so enjoy your November and the grifting from either side of the aisle.

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