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The Constitution Is What They Make It
“You are free to not eat broccoli, but if you don’t the government will impose a penalty on you. This penalty is really just a tax and since the government has the power to tax for all sorts of reasons, they can tax you if you don’t eat broccoli.”
This is the logic of Justice Roberts argument in the Obamacare case that was handed down today.
This should not surprise us because the Constitution is whatever the Justices wish it to be. Now they have handed the government another mandate to regulate our behavior. As we know they can and do regulate our behavior already. For example, if you smoke, they will tax your habit heavily. It is not a giant leap to force you to do something they want you to do by penalizing you for not doing it. According to today’s ruling, there is nothing in the Constitution preventing them from doing this.
The technical details of the ruling are interesting but very disappointing. Roberts’ justification of the Obamacare Act relied on the taxing power of the federal government as well as the general welfare clause. Roberts shot down the government’s reliance on the Commerce Clause to mandate our behavior. He wrote, "The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular [interstate] transactions." Some clever commenters are saying, “Aha, that sneaky old Roberts. He always wanted to limit the wide powers of the Commerce Clause and this is how he did it.”
This limitation of the Commerce Clause may or may not be significant. Only future cases will answer this question. Based on the history of the Court, I have my doubts that this will impose any new restrictions on the government’s broad powers to regulate the economy.
The argument that a penalty was really a tax was, to say the least, a novel approach since the Administration thought it was a penalty and not a “tax” (the statute clearly points this out). Thus Justice Scalia’s famous query during argument that the government could force us to eat broccoli under the government’s theory of the Commerce Clause was cleverly turned aside by appearing to support the logic of Scalia’s broccoli argument yet upholding the law under the taxing authority.
The tax argument by Roberts is a good example of finding means to justify and end.
None of this is to say that the payment is not intended to affect individual conduct. Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.
Roberts' final words on the subject:
But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
Roberts' logic is tenuous: none of the examples of taxation he cites impose a “tax” on something someone doesn’t do. If I wish to buy expensive heavily taxed imported goods, that’s my choice. Under his logic they could “tax” me for not buying domestic goods because it serves the goal of fostering “the growth of domestic industry.” Roberts just makes it up to fit his intended outcome.
The Court’s dissenters make quick work of Justice Roberts' invention (turning a penalty into a tax). Justice Kennedy's dissent on behalf of Scalia, Thomas, and Alito:
Our cases establish a clear line between a tax and a penalty: “[A] tax is an enforced contribution to provide for the support of government; a penalty … is an exaction imposed by statute as punishment for an unlawful act.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.
It’s not a tax, it’s a penalty.
This use of the taxing power was hailed by most legal scholars this morning as a proper conclusion by Roberts. Most whom I heard couldn’t understand why anyone would think it would not pass constitutional muster. Most legal scholars see nothing wrong with expanding federal power to implement social policies they believe are beneficial. This is the “living constitution” theory which has guided legal scholarship for many years, most specifically since FDR’s New Deal. But it is an old argument going back to the Federalists and the Jeffersonian Republicans.
What Justice Roberts has done may be another “switch in time to save nine.”* Perhaps it is a bit hyperbolic to so suggest this, but clearly he wanted to uphold Obamacare and take the Court out of the political and policy spotlight by this legal sleight of hand. Left-wing commentators are saying how crafty the Justice is to uphold this worthy social policy on the one hand, and yet hew to his supposedly conservative roots with his Commerce Clause arguments on the other. Most of these people could care less about the Constitution: to them the end justifies the means in every extension of federal power.
This is the problem with progressives who think the government has the right to regulate the economy in any way Congress deems it, and the Court is full of progressives. Justice Ginsberg in her opinion said, "The Chief Justice's crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress' efforts to regulate the national economy in the interest of those who labor to sustain it."
The Constitution has been gutted by the Supreme Court, and their butchers work continues. The Founders’ fear of a powerful central government has been betrayed by the Court. Our original constitutional limitations on federal power have been ground down by redefining the Constitution to suit government goals. A Court can now find constitutional power for almost anything the government wishes to do.
With but a few exceptions we now closely resemble the Nanny states of Europe. And those countries have powerful central governments with few limitations on their power. Now with government-run health care, it would be difficult to distinguish the U.S. from, say, France. After 225 years, we are “them”. Thank you, Justice Roberts for doing your part.
*It is ironic that the justice who switched his vote in the famous “switch” case ( West Coast Hotel Co. v. Parrish) was also a Roberts, Owen Roberts.
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The IRS is now involved in healthcare.
http://www.prisonplanet.com/dr-joel-wallach-irs-to-garnish-wages-from-me...
This is another step towards tyranny. We need mass civil disobedience on this.
Tell that to occupy wall street...The only civil disobedience the government has ever listened to is riots..Start buring down cities..
http://times247.com/articles/occupy-pittsburgh-s-spokesman-is-a-sex-offe...
Go back to Hearst and 1968. When the Riots hit our cities, a Federal Government sent in the Military and had a number of units on standby to deploy further to crush any civil Disobedience.
I hate the precedent this sets, and courts always rule by precedent. What is next, I wonder...a tax for those who don't spend upwards of $70K to upgrade their coal-generated electricity homes to solar? A tax for those those who don't recycle? A tax for those who don't trade in their clunkers for Volts?
Did anyone catch Paul Krugman's op/ed in the NY Times yesterday?
http://www.nytimes.com/2012/06/29/opinion/the-real-winners.html?_r=1&ref...
Little Paulie says I'm a "real winner", that Obamacare is "fully funded", and that the dissenting judges were displaying "naked partisanship".
What was his Nobel Prize for again? Unlimited douchebaggery?
Shame on you for even giving Krugman the time of day by further spreading his utter bullshit
So now I am a dimi in the eyes of my own Gub'ment, America meet Sharia...
Never use the term Obamacare again; the proper term is ObamaTax.
( not that I have any illusions that the next guy will be anything other than the next puppet; but at least call a spade a spade )
Spot on! Or 0bamacare tax. The majority of people don't like 0bamacare and we sure as hell don't need more taxes.
This is like Judo: use the opponents "strength" against him. B0 may come to rue the day.
From a philosophical viewpt, when a society flees God these are the kind of decisions you get. This is the same week 50 yrs later that prayer was banned in PS.. Francis Schaeffer said that "non-reason" is the process by which men who have left a reasonable God make their decisions. It is a ridiculous decision seen in the fact that everyone thought it would fail and by the analolgy of broccoli.
God is not a Republican and poliTICKS is like any other job. We just expect higher things from men in office. Taxation is a moral thing; if you tax a lot you're a bad man. I don't see how you can have conservatives in the govt these days.
Funny, the most tyrannical institutions on Earth are the Catholic Church or rule by the Quoran. Where is the reason in a philosophy dependent on faith? Whether you wish to take comfort in religion is an emotional choice, not one begat from reason.
Right, absurd to beieve in God, yet absurd to not. Pascal is good for this. (a Catholic I guess he was) If God is there, then it's reasonable. If not, then "all things are permissible (Dostoevsky)" So what's your gripe with the way things are going?
Yes, I too suspect institutions of God. Question everything; a good motto. But make sure you really, thoroughly question. The Catholic ch is as an institution founded on lies as is Islam.
Never confuse man made institutions and their perverted sense of religion with God himself. The consequences are dire.
A belief can be an absurdity. A lack of a belief cannot be an absurdity.
The problem is that we have created a cohort of people who don't want to be forced to buy health insurance or pay a mandate. The same people, however, expect to be cared for by the health care system knowing they will never be able to pay for that treatment.
I say: fine, don't pay a tax or a mandate but then don't game the system. Don't expect the ambulance to take you to the hospital after your motorcycle accident and don't expect the emergency room door to be open to you when you are sick. No more free rides. Either pay up front for your care or don't participate in the health care system.
I agree wholeheartedly. The act that made anyone, regardless of ability to pay, entitled to the use of medical services is the reason we are here.
The bleeding hearts of years ago felt, not thought, felt, that it was too brutish to allow someone to die bleeding if they had no money. It could not be left to charity.
So we are here. Because people thought with their hearts. That never works out well in the end.
pods
The real precedent is the concept of public health. It is the reason epidemics that wiped out large segments of urban populations no longer are a major threat to our existance. It is also the reason we have clean drinking water and sewage disposal for most of the population.
It can be argued that this is a proper use of governmental power as stated in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men. . ." and the Constitution: ". . . promote the general Welfare. . ."
I will give you that "public health" is the underlying precursor.
Of course, the "general welfare" was the authority for CONgress to enact their enumerated powers.
As you said below (actually above), we are sleeping with camels.
I prefer freedom from coersion.
pods
We all prefer freedom from coercion. Livestock do too. Most people also seem to believe that they can have a government that will coerce others into behavior that they believe is desirable without being coerced themselves. This is illogical. It doesn't work. Once we appoint herders, we become livestock. There's a natural evolution in the characteristics of the herders. Charles Hugh Smith's essay said it well, I think:
www.oftwominds.com/Survival/Overreach-InequalitySP.pdf
Just keep in mind, a government that controls the health of a nation, can use that control in ways that are dangerous to public health.
A government that controls its people can use that control in ways that are dangerous to its people. The same is true for livestock and their relation to their herders. The alternative is anarchy or freedom from control. Which one do you want?
Once the camel's nose in in the tent, it's usually not too long before one is sleeping with the camel. Too many people believe they can be just a little bit pregnant.
http://chrisbrady.typepad.com/my_weblog/2010/11/the-camels-nose-under-th...
I want an end to government. It doesn't work, except for a small minority of people. It has never worked any other way. It is a failure at leading the people in a way that improves their society without taxing them for the priviledge. If this means anarchy (voluntaryism), then so be it.
Why would anyone continue to participate in a massive failure? Outside of being required to? That is tyranny.
Further, government is not a guarantee of clean water(quite the opposite- love canal anyone? Flouride? Chlorine?) nor is it necessary to procure these facilities. That kind of thinking is the most dangerous of all.
As long as I can apply that reasoning to ALL taxation, I agree one hundred percent. Unfortunately, free riders abound in fascism, from welfare queens to corporate welfare kings. From demands on our youth for the military that merely supports corporate theft of global resources and the forcing of economic markets.
No more free rides? You are calling for anarchy (which I am in favor of), but are too ignorant to see it. Typical American.
drd, admit it, you think of the children often the sick and mental illness across this great land and only government can help them..youknow it is only kindness to force all to fit into the safety net, why I know you and bob weep at baby seals killed on the ice, or polar bears forced to wear sun screen..you are all that is good with this world.
there are no laws. there is no constitution, there is no social contract..there is only POWER.
roberts like bush like obuma was given his orders, no matter how foolish and criminal they all look to those who have the ability to see the crimes, they do as told and fall on their swords.
we are cursed here on ZH to see more clearly and understand our own slavery to very unworthy, evil men, who deserve to be derided and cast out of moral society.
we can seek answers in many areas, law, history, moral codes, but it is fruitless. the elites have reached critical mass and I see nothing to stop them.
Power is the reason, Power is the tool, Power is the end goal..
And the Rothschilds and their Made Men practice it daily.
Good article, but a minor correction:
"*It is ironic that the justice who switched his vote in the famous “switch” case ( West Coast Hotel Co. v. Parrish) was also a Roberts, Owen Roberts."
That's not irony. It's a coincidence, but it's not irony.
ELAINE: No, no.. but it is quite a coincidence.
RAVA: Yes, that's all, a coincidence!
ELAINE: A big coincidence.
RAVA: Not a big coincidence. A coincidence!
ELAINE: No, that's a big coincidence.
RAVA: That's what a coincidence is! There are no small coincidences and big coincidences!
ELAINE: No, there are degrees of coincidences.
RAVA: No, there are only coincidences! ..Ask anyone! (Enraged, she asks everone in the elevator) Are there big coincidences and small coincidences, or just coincidences? (Silent) ..Well?! Well?!..
(Everyone just kinda shrugs, then murmurs. The doors open)
MAN: Will you put that cigarette out?!
RAVA: (Pointing the lit end at him) Maybe I put it out on your face! (To Elaine) It's just like Ray said - you and Jerry are jealous of our love. You're trying to destroy us.
ELAINE: Shouldn't you be out on a ledge somewhere?
Since the mandate is now a revenue provision, it is germane and not subject to a Senate parliamentary point of order to strike it from a repeal bill.
The Senate’s filibuster process that would require a supermajority of 60 Senate votes to approve repeal is now irrelevant.
Is the path now completely open for the House to nullify?
Trying to Understand - question to clarify
Are you saying that now that Obamacare has been re-classified as a tax bill, and a tax bill cannot be passed by a Simple Majority in the Senate, that a tax bill requires a Super Majority passage in the Senate, that the House can move to Nulify the bill?
If so, this would be a brilliant move and would probably work now that the House is mainly in the hands of Conservatives.
Your clarification would be appreciated.
''With the exception of Utah, there is a pretty strong overlap between (states with) lower life expectancy and deep hostility to the Affordable Care Act. Those who need it most are the most opposed to it.
''Know what that is called? Fatal stupidity.''
Juan Cole
And there you are, the Tin Foil Hat Brigade, screaming about something that might save your ignorant asses, led by the nose by the manufactured outrage of Republicans being paid to keep profits as high as possible for health care companies, and keeping 50 million of us on the outside looking in.
Fatal stupidity is being generous.
you seem to be missing the point in some respects
we are now able to be taxed for any damn thing they want us to purchase if it is mandated as a tax
a precedent has been set
whats next?
JQ: Yes, Congress has the authority to levy taxes. Most of us have known this for a long time (particularly around April 15th).
Did it just dawn on you?
Yes, but SCOTUS just handed them the power to tax you for not voting.
Not getting a REAL ID.
Not setting aside x% of your retirement in T-Bills.
They could tax you for not having fluoridated water.
Not buying a hybrid car.
Not buying CFL light bulbs.
Not buying enough milk.
Not voting Republican.
Not voting Democrat.
Not voting for an approved candidate.
Not having cable tv.
Not having a retirement account.
Not flossing.
Not exercising.
See where I am going with this?
pods
They now have the power to deny medical attention if:
- you used tobacco products;
- eat red meat;
- weight too much; or
- drink alcohol.
That is to say, they can kill you.
Now I know some of you will say "Death to the Fatties", well you haven't seen the weight guideline that will be applied to you. Look at the legal limit for drinking and driving. If you look at a bottle of beer, you're busted.
Yes. We are now guilty until proven innocent under the tax code.
That great bastion of freedom down under already has a penalty for not voting. Apparently, if you don't register to vote though, there's no penalty.
http://www.theage.com.au/news/national/feeling-fine-you-wouldnt-vote-on-...
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, ...
You're missing the point. It was the Court, not Obama, that classified it as a tax. And that tax doesn't apply to me as I already have health insurance. It likely doesn't apply to you either!
It only applies to free riders who cost the rest of us, who now pay for their care when they leave the emergency room and throw the bill in the trash can on the way out.
How much more basic does this shit need to be for you people?
So you think that being guilty until proven innocent is a good approach to law? We now have to prove to the IRS that we carry health insurance to avoid this "tax".
You have insurance now. That's not to say you will have insurance in the future, when your company drops coverage to save a few bucks, or you lose your job when your job gets shipped to Wherethefuckeverstan. Then the tax will apply to you.
I know you'll be happy that you have the gubmint safety net to give you your free health care. And I'm sure you have many fiat dollars safely ensconced in the bank to pay for that personal catastrophe.
But what of the edge-of-poverty man who loses his job to the worker drone in Wherethefuckeverstan in November and can't find another job? Come tax time in April, his W2 will show that he doesn't qualify for a subsidized Obamacare tax payment because he earned too much. So now this poor bastard doesn't have a job and has to pay 1% of his former salary toward the penalty tax. With what money? And if he doesn't pay it, he goes to jail. Or, as I think will be more likely, the IRS, who is tasked with collecting the penalty tax, will just add yet more penalty fees and interest on the tax bill.
And why would my employer drop insurance (which I'm pretty sure they will do)? It's because TOTUS and SCOTUS decided to give my employer an incentive to stop the coverage they were providing. Instead we'll all have a one-size-fits-all health insurance in the US, no view of risk factors, no differentiation for the healthy among us vs. the fat asses who always eat the junk food and have never seen the inside of a gym. It's a bad idea all around.
Our jobs were already outsourced to "Wherethefuckeverstan", most people call it China.... Last I read it might have been Romney that did a lot of that.
Actually, they are empowered to take it from your bank account- without prior notification. Banks are going to love the overdraft fees.
Wackoism
Part 2 of the unintended consequences. Mass closure of bank accounts.
(Part 1 is small companies laying people off so they have fewer than 50 employees, with the result of soaring enrollment in unemployment.)
So prior to socialized med in the States you went to Canada or the UK for treatment? Because you miss the point entirely, you and the free riders will now just be denied for "covered" services as it is too much a strain on the "system". Good sheep good sheep...
Cap and Trade will do that for us Over.
Typical American." The cost does not apply to me". Wake up.
You don't think these costs are passed on by business? You don't think a large tax taken from everyone doesn't have economic repercussions on all? You don't think Congress will not be embolden to create new taxations?
Free riders are the norm in a fascist state. Look around you- they exist everywhere. From corporate to the poor. Your myopic view of political economy is the bain of our existence.
why not an oxygen tax? for all those who use the goverments oxygen. you may opt to not use the oxygen but you will be taxed for holding your breath.