The Humpty Dumpty ruling: “Ah, but it’s not a mandate, it’s a tax,” says SCOTUS
Justice Roberts has joined the liberal wing of the Supreme Court in ruling that the HCR bill is constitutional, 5-4.
It seems that, when faced with the dilemma of possibly invalidating a huge act of Congress, the Court sidestepped that particular steaming pile of doo-doo and accepted the Democrats’ position that, although they were careful to make sure it was not called a tax for the purpose of passing it (a political move), it nevertheless could be considered a tax for the purpose of constitutionality (a legal one).
Reports are preliminary; more, much more, will be coming later in the day. But it also appears that the individual mandate was voted unconstitutional, 5-4. That doesn’t matter for the purposes of Obamacare, which stands. But it matters for considering the all-important issue I mentioned yesterday in this post:
I’m far more concerned with the precedent the Court will set regarding the further expansion of the Commerce Clause [than with its ruling on Obamacare itself]. If the Court fails to declare a federal mandate of this type unconstitutional, that would be an enormous triumph for “progressives”—far beyond the momentary victory of the Court’s upholding Obamacare.
Many conservatives may not see it that way, but I stand by my words, although people may consider them scant comfort.
In the same post I wrote that whatever happened with the mandate and the Court (short of a total invalidation of the bill, which never seemed likely to me), it could be fixed by changing the bill and clearly making it a tax, if the Democrats gained control of the legislature in 2012. Well, now they won’t have to do that, will they? It’s the Republicans who will need to take control and undo what was done by the previous Congress. This should fire up the troops on the right as almost nothing else could. If the American public is foolish enough to re-elect Obama and the Democrats, I suppose it deserves what it gets.
It also is scant comfort to me that I was correct in my prediction, here:
Maybe it’s just my tendency towards brooding, but even though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people, and so it would require a very high burden of certainty that it’s unconstitutional before declaring it so.
They wanted a way out, and they took it.
It’s interesting that people have been joking, “why don’t we just ask Justice Kennedy what he thinks, since he’s always the determining vote in a 5-4 decision?” Well, this time that wisdom was wrong; it was Justice Roberts who swung.
And I bet that liberals won’t have any trouble whatsoever considering this particular 5-4 vote highly valid, even though it’s as close as it can get.
[NOTE: I call it a Humpty Dumpty ruling because of this passage from Through the Looking Glass, in which Alice has a chat with Humpty Dumpty:
…As I was saying, that seems to be done right – though I haven’t time to look it over thoroughly just now – and that shows that there are three hundred and sixty-four days when you might get un-birthday presents – ‘
‘Certainly,’ said Alice.
‘And only one for birthday presents, you know. There’s glory for you!’
‘I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t – till I tell you. I meant “there’s a nice knock-down argument for you!”‘
‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’ ]
Tax/Mandate, this is a distinction without a differance.
This needs to be overturned.
So it’s a tax, not a forced consumption.
And if I don’t pay the tax? I am compelled to go to jail, not to buy insurance.
The best legal minds in the country came up with this.
Remember when Obama said it wasn’t a tax? Couldn’t they take him at his word?
Of course they couldn’t.
We can’t either.
And Roberts sold us out.
A depressing and tragic day. There will be more hits to follow I’m sure. I predict Holder will escape unpunished, even if he’s cited for contempt. Also it sounds to me that Krauthammer was right and that this law will never be repealed. Don’t expect the Republicans in Congress to show any more backbone than Roberts. They ALL have to face their country club friends after all. I’m not sure what acts of political sabotage is available. If I don’t pay this new ‘tax’, will I go to prison? Roberts has opened a frightening new precedent of govt control. Right now, he’s a bigger disappointment than Souter.
It’s still odd to me that *any* of the SCOTUS folk would effectively legislate politically. Seems like their function is broken.
My optimistic take.
Two items that are driving down Obama.
1. The economy.
2. Obamacare.
Obamacare is back in play as a campaign issue. Obamacare brought out the conservative vote in 2010. Will it do so in 2012?
Romney, if he’s smart, will link the economy with Obamacare. He should say that one of the reasons that the economy is so bad is the drag of the unknown future cost of Obamacare. He also needs to say that “constitutional” does not equal “good idea.”
The Republicans need to be honest and come up with an alternative to Obamacare that utilizes free-market principles. The Republicans need to also say that they want to work with reasonable Democrats to come up with a plan that both sides of the aisle can support.
Romeny raises 100K online, stock market down 164.
Is this the day America died?
JFM: There is no plan that both sides of the aisle can support. The Democrats will not join with the Republicans any more than the Republicans would join with the Democrats on this. Especially not after all that’s happened.
No, the Republicans need to win control of Congress and the White House.
Obama just won a second term.
Now that it is officially a tax – the republicans get to rightly claim that the dems increased taxes. It will be interesting to see what Obama says about that.
The coercive powers of the Commerce Clause are yet another demonstration of penumbra emanating from the the asses of Asses. With
God… the Commerce Clause, all things are possible.And yet another reason why appealing to the makeup of the Supreme Court as an essential reason for voting for a Republican for president is
folly… insane.I’m actually happy with this decision.
For one the court did finally say there was a limit to the Commerce Clause power.
For two, by ruling this a tax it will force politicians to be more honest in the future and might also help people who oppose some of these ideas to rally against them. It’s rather easier to rally against a tax.
Lastly, you can deny it till the cows come home -and I expect some on here will- but healthcare does need major reforms. This bill, much as I hate parts of it does do some good, and more to the point gets people talking about things.
It is over. The last shreds of the Republic are gone. We are now a fascist state. Obama needs but to act swiftly to consolidate power to prevent the powers behind from removing him in order to set up a more compliant tyrant: we now have the collectivist state Norman Dodd warned us was being planned: will we now have “American” efficiency or Zimbabwean chaos?
I am usually a “glass is half full” kind of guy.
Soooooo…even though I am disappointed that Obama and the Congress that was elected in 2008 wasn’t made to look silly, I think that long range, this ruling could be a positive.
First, the Commerce Clause was not expanded. A limit of sorts was placed on it.
Second, a limit was also placed on the federal government’s ability to penalize a state for not complying with parts of the law.
The Supremes didn’t approve the wisdom of the law and I think the Republican Party can make a lot of political hay out of this. I expect the Tea Party to be revived with strength. Hopefully, we will now elect Romney, keep the House, and gain control of the Senate.
If we do, we can repeal all of this crap law and get some more conservative justices appointed.
I wonder, in the event of Obamacare, might a Republican president make the case that, resources being finite, he is unable to direct the implementation of said law. AIG – The Arizona – Immigration Gambit.
Hmmm… something a bit twisted about the logic:
First, as noted at Volokh , the anomaly that:
“the individual mandate can be a “tax” for constitutional purpose, but “not a tax” for Anti-Injunction Act purposes (an anomaly that occurred to me immediately, and not surprisingly is raised in Justice Scalia’s dissent). ”
Second, as noted by Ed Bonderenka , above:
“So it’s a tax, not a forced consumption.
And if I don’t pay the tax? I am compelled to go to jail, not to buy insurance.”
I wonder if this twisted logic and hair-splitting could be the basis for a subsequent legal challenge of some sort.
In any case, the one positive point here is that it should, if used properly, give plenty of ammunition for the GOP in the fall. The Obama administration, ratified by the Supreme Court, has stuck the U.S. with a law that the public has opposed from the beginning, which goes against the American public’s sense of individual choice, and which continues to be immensely unpopular. Maybe, hopefully, this will produce a backlash against the Dems.
Neo:
I think you meant Kennedy, not Stevens.
“Reason will not decide at last; the sword will decide.”
As for “it also appears that the individual mandate was voted unconstitutional, 5-4; ” that lasts for about as long as it takes to appoint another Ginsberg, Kagan, or Wise Latina.
Concerning lowering the cost of health care by reforms, it just can’t happen. Health care cost has gone up for several primary reasons:
1. Government being involved and furnishing unfunded health care has created a market for expensive health care. There are lots of items concerning health care that wouldn’t be accessed if people had to pay for them out of their pockets.
2. We are living longer which creates more expense for the period of life when health care is the most needed and expensive.
3. Improved health care technology is expensive and to make matters worse (from an expense point-of-view), it keeps us alive longer.
No law or laws is/are gonna change these basic economic facts.
Next up: a mandate that we all vote Democrat.
God, I’m depressed.
It’s going to be hard – make that, “impossible” – to get up for Fourth of July. The Reds have won, and are now in end game.
Occam’s Beard: see this.
“I’m actually happy with this decision.
For one the court did finally say there was a limit to the Commerce Clause power.”
To me that sounds like being happy to have liver cancer instead of leukemia.
Roberts can call the individual mandate a ‘tax’ all he wants but the individual mandate is not a tax. Under the ACA those who do not buy medical insurance will be made to pay a penalty. Calling a penalty a tax changes nothing. Tax or penalty it still compels an individual to engage in commerce or be carted away in handcuffs by the IRS.
SCOTUS has handed the republicans a boat load of ammo. It remains to be seen if they can ‘shoot’ straight.
Take heart! Remember that on December 21st, 1989 Nicolae CeauÈ™escu and his wife Elena were the most powerful people in Romania, fully supported by the military and the security services. He’d just been reelected a month earlier to 5 more years as General Secretary of the Romanian Communist Party. Four days later after a two hour trial, he and Elena were put up against a wall and shot by elite paratroopers.
Thanks, neo, for attempting to cheer me up. I just can’t get over the feeling that the ratchet turned tighter, and the pawl dropped into place behind it.
This may well help Romney win, but ObamaTax is a disaster of the magnitude of Social Security, i.e., something we can’t get off our backs regardless of whom we subsequently elect.
J.L.: yes, thanks, I absolutely did.
Typing very fast today!
Occam’s Beard: I understand, believe me. I consider this bad news. But if the right can’t recover from it, then I don’t think they have the cojones to win anyway.
Perhaps I’m not quite as down as some people because I expected the mandate to be declared constitutional. I don’t usually make predictions, but I felt that so strongly that I did want to go on record as predicting it. I’m not sure why I thought that would be the result, but it was a very powerful feeling. And so this result is actually marginally better than I expected.
On reflection I realize that part of my dejection arises from the impression that this is our Dred Scott decision, in which a craven Court in attempting to stave off conflict only postponed it, but in so doing made it inevitable.
Neo–
In my previous comment I wrote:
The Republicans need to also say that they want to work with reasonable Democrats to come up with a plan that both sides of the aisle can support.
I should have written:
The Republicans need to also say that after the election that they want to work with reasonable Democrats to come up with a plan that both sides of the aisle can support.
My comment presupposes that Republicans win the Senate, House, and White House.
I don’t see what there is to whine about, esp. since I agree with Neo that this just made Obama’s re-election more difficult. I mean *I* may be for Paul or actually pretty much anyone but a Dumbocrat or Retardican, but most of the people here are sucking it up and holding their noses and want the Mittster to win, so what’s not to like? The Mittster will win, this will be repealed (along with the few good provisions in it) and you all will be happy.
“They wanted a way out, and they took it.”.
Instapundit’s agrees, but has a different take on it:
I’m not as down as a lot of other conservatives. To me, the socialists have won a short term victory that leads to longer term problems for them. They got their program, but the Supreme Court forced them to admit that
1. The “mandate” is in fact a tax, and
2. The power to do what they did was not from the Commerce Clause – which Neo rightly identifies as problematic in that it allows for more expansive and unrestricted powers for the Executive and Legislature – but from the tax power. Which actually puts control of this act back in the hands of the people via our elected representatives, where it should have been from the beginning.
An analyst over at SCOTUSBlog – one who appears to have been in favor of the act, but who still makes what I think is a sensible analysis – had this to say about the ruling:
In short: They got their socialist program. But the Supremes gave notice about where the authority comes from to create “social legislation”. In short, they put that power back into the hands of the people. To me, that’s a powerful statement: Don’t be reckless. Remember your duty and obligations to conform yourself to the electorate.
Right now, they have their program due to the prior election putting Obama in office. But it’s fleeting. It’s now up to the population to correct the problem. They simply have to use their vote. And candidates with their heads on straight have to step up and campaign.
Short term setback? Sure. There’s no denying that. We’re stuck with the expense till what, 2015? Whenever the first funding is completed? But there’s also a slap in the face to the program advocats there that I fear too many statists are missing in all the hubub and enjoyment of the moment: It’s unconstitutional as anything other than a tax. So, as Insty inferred, it’s up to the electorate to save itself.
Too many people are down. There’s a powerful tool there given by the Supremes that, as long as Conservatives can suppress emotion long enough to recognize it, can be used in upcoming elections. It’s simply up to the fiscally sane to identify it and use it properly.
E.M.H.: I think my take is almost exactly the same as Instapundit’s. I wrote:
I agree with you 100% on the rest of what you say.
Neo: “The remedy for Obamacare is now a political one. We need to emphasize that. The Court will not save us.”
Just so! There are many laws that are constitutional that are bad laws. Bad laws must be changed by of the votes of the citizens. Repeal of Prohibition as one eaobvious example. Don’t know about others but I just sent another donation to Romney and the Senate Campaign Commmittee. I will be writing a letter to the editor today and am volunteering on the campaign for John Koster (R and TEA Party backed) for the House from our district. The starting gun has sounded. Let’s all get busy. There is much to do.
Neo: I read you as being a bit more cynical and down than Insty. But I’m not trying to pick a fight here; I freely admit that I could simply be misreading you. Anyway, I think we can all agree that the truly important part of the decision was the recasting of the ACA for what it is, and getting it out from under the Commere Clause, which would’ve been an unmitigated disaster. Putting it where it is now makes it fixable.
There is a sting in the tail for Obama and the Democrats. As Palin tweeted “Obama lied to the American people. Again. He said it wasn’t a tax. Obama lies; freedom dies.” This has handed the GOP a huge issue. If you think the base was energized in 2010, just wait for 2012.
Bush tax cuts expire. Obamacare is now a massive tax increase. If you think Bush #1 got crucified on “no new taxes”, wait till you see what they do to Obama’s “taxes will not increase one dime”.
Occam’s Beard
yup
but didnt i say they wer egoing to win long ago as no one was targeting the leaders or the ideology or doing anything but trying to figure out on their own, sans history,sans ideology, sans complete educatino…
so the end was a fait accompli
and the only protests i heard were people saying we are not that way, x will save us, it cant happen, etc.
as for those who refused to accept the end
how can you fight when your blind, ignorant, and have no idea whats going on and dont want to learn it as you assumed everyone else was blind,ignorant and had no idea… we are equal is what they told you .
what part of
THOSE THAT REFUSE TO LEARN ABOUT HISTORY are doomed to repeat it?
how many learned their history, or even went to all the places i said to look?
how many sat around, made snappy comebacks like vanderleun in the other thread and spend their time preventing anything beyond empty discussion and prattle?
funny, but when i said it was a done deal, it was because i knew that people wouldnt get their crap together, focus, and learn..
B:
1) now why would i think that?
2) and why would they pretend they would?
A:
1) i was never duped, experience informed me, and so i had no ego to preserve
2) they were duped, had no experience, and had ego to preserve so refused to consider they are being duped – and so could not stop it
ultimately thats the point
the person being conned, whether its berni madoffs customers, a person on the street losing to three card monty or a young woman trusting a nasty paramour (male or female), will NOT stop being conned until they hit bottom and there is no chance at saving ego any more.
its why you couldnt talk them out of investing in bernie
why you cant get the rube not to play thinking he will best this poor person at their own street game
and cant stop the girl by telling you her boyfriend or girlfriend is a monster.
and why you cant tell people who are being conned in a big soviet way..
they have no the humility to survive