Your Own Private 21-Tax Salute
Writing in the aftermath of yesterday’s Supreme Court’s decision to call a spade a spade — it’s not a mandate, honey, it’s a tax! — my friend Michael Walsh wrote a column called “Won’t Get Fooled Again.”
Except, of course, that we will.
Michael casts an acerbic eye back to Helvering v. Davis, the Supreme Court decision that said (I paraphrase) Congress can tax the hell out of you for anything it wants just so long as they say its for the “general Welfare,” whatever that is.
The issue back then was the Constitutionality of the newly minted tax known as the Social Security system. Was it not just a fancy mechanism for the government to raid your pocket in order to line its coffers?
Well, yes. But that’s not how Justice Cardozo saw it. “The discretion,” he said, “belongs to Congress” (“unless,” he added, jokester that he was, “the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.”)
Have you noticed how one man’s “arbitrary power” is another man’s legitimate “discretion”?
The really amusing thing about this whole charade of “sure-there-are-limits-on-Congress’s-power-to-obliterate-the distinction-between-meum-and-tuum” when it comes to your (“your”?) property is the venerableness of its historical precedent. Back in the late 1780s when Madison and Hamilton were trying to get the recalcitrant former colonists to line up and ratify the Constitution, they faced this issue squarely. At least Madison, who was far more concerned with placing limits of state power than his pal, faced it.
“Is the aggregate power of the general [we would say “federal”] government,” he asked in Federalist 41, “greater than ought to have been vested in it?”
It was a question Madison worried about. And he spent the balance of that number of the Federalist, and many others, trying to convince his readers (and, one suspects, sometimes even himself) that the answer was No: the government has to be vested with great powers but we have (famous word) “enumerated” them so as to limit them.
Part of Federalist 41 concerns the military and how much power the government ought to have to pay for it. But the second half deals with those bits of Article 1, Section 8 of the Constitution that bear upon Congress’s power to “levy and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; . . .”
Seems pretty straightforward, doesn’t it? But exactly how far does said power reach? A lot of people worried about that. Was this not an “unlimited commission” to exercise power? No, no, said Madison. “No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.”
Congress has power, including the power to tax. But, Madison says to the skeptics, those powers are enumerated. So not to worry. Sure, “Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it.” But the framers were careful to lay out the powers given to Congress. So:–
what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?
Got that? Not even a full stop separates the investiture of Congress with power from the qualification and limitation of those powers. Madison’s logic is irresistible:
If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?
You have to admire the clarity of his thought and the power of his expression:
Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity . . .
I’m convinced. Unfortunately, the pressure of political expediency soon made mincemeat of Madison’s logic. We want to take more of your money. Does the Constitution limit our power to do that? Let’s have another look at that document and see what a little hermeneutical ingenuity, leavened by bad faith, fired by the desire to appropriate other people’s property, can do.
I do not care whether it is a tax or a penalty (which hardly makes a difference now anyway; it is what Justice Roberts wants it to be). What offends me is the idea — bad in every sense — of creating an all-encompassing national medical insurance system.
To: Daniel Heitjan
You may not want to explain, but I’d very much like to know the actual reasons why you find a national health insurance system “offensive”. I don’t find it offenseive….I find it liberating. But perhaps you know something I don’t.
After all, even under a national system, you wouldn’t have to participate if you don’t want to. There will always be private doctors that will be happy to accept your cash donation for their services. (Like is true in Canada and Britain).
The same holds true for Social Security and Medicare, I might add. As I’ve always told people who are against those 2 programs: You don’t have to participate if you find them so repugnant. You simply don’t apply for SS nor for Medicare when you reach your dotage and you won’t get a cent nor even a nod from either service.
Then, when you have your first heart attack and are treated in a private clinic, the receptionist will be very happy to accept your cash payment of $200,000 when you’re discharged. They’ll even give you a receiipt !
(Strangely, when I’ve used this argument, my critics fall suddenly silent).
We dont’t have to participate? Geez Pied! Why have you kept this a secret? Lo, these past 35 years the Govt.’s been deducting from my paycheck for these “Liberating” Social programs that I’ve been paying into & all along I could have just told my Employers & the Fed. ” I just really don’t want to participate…”. I could have just kept that money. Now with Obamacare, we can all tell 16,0000 new IRS agents (with their fat federal salaries, pensions, and benefits exempt from the ACA) that will be hired to enforce these new tax…er…ummm…penalties that we just don’t want to participate? I’m sure that’ll go over like baby-back ribs at a Tehran buffet. Are you from the same school of Liberal thought that believes that “The Private Sector is doing fine?”. How about “Deficit spending is a great way to stimulate the economy..” or “We look at Wisconsin as a win…”. You use Liberal logic big enough to drive a truck through. I’d love to run on with this, but I’m very busy trying to find enough Unicorn farts & Fairy dust that you & your Intellectualy bankrupt friends swear would be a great alternative energy source. I’ve been looking high & low. So far, no luck.
Notice how the recorder driven Grade School partial reasoning is “suddenly silent”?
Caqn you play that thing in Hb too?
Of course you cannot opt out of a system you are forced to pay taxes into. The only question is whether you can afford to forgo the benefits. Most of us can’t afford to pay for it then not use it.
One suspects your critics are trying to fathom how to get this across to you in small, easily understood bits, and have ultimately given up on the task.
The problem with your logic is that we will be forced to participate because the taxes will take away part my income that could have been used for the doctor of my choice who will most likely be closing shop because the added regulations & taxes will not make his practice viable.
I guess you haven’t been reading about the 100,000+/yr elderly who have been euthanized needlessly in Great Britain.
SS is not a choice. Even though it was originally viewed as a savings supplement for those in retirement years, it was collected as a tax. I would gladly opt out of SS in my retirement yrs if they return the money they took from me + the measely interest. I could easily make better investment decisions compared to the bureaucratic government.
As for the $200,000 heart attack—– it would not cost as much & maybe be reasonable if the goverment eliminated many of the rules & regulations it places on the doctors & insurance companies. That said, the original intent of insurance—-to protect your property from catastrophic costs.
The receptionist will take my money after a 6 month wait for a dr visit. Hope YOU ARE DEAD as a result of the wait. now go back to your mothers basement punk
They fall silent because one cannot argue with idiots, and your argument is idiotic.
What you plan, then is that we should be free to pay for your health care and our own. That’s the liberal position: what’s theirs is theirs, and what’s yours is theirs. It’s called extortion or theft, in most other places.
See. I never pays to argue with an idiot. They haven’t even constructed a cogent argument. They’ve invested no thought. They just say whatever is on their tiny little minds, and, in so doing, waste more of your time answering their pathetic brainfart.
Well, I need the typing practice, anyway.
We the people have a choice: On the one hand we may choose the “vision” of government forced upon us by the Democrats; this is the Democrats’s form of government. Or we may choose to live once again under our original, Constitutional form of government.
The first is a road to tyranny, and we are well along it. The second is the road of freedom and liberty.
Lastly, from a purely practical perspective, we’ll go broke if we implement Obama-tax-care. We might even go broke if it is repealed.
“Maybe John Roberts did the wrong thing yesterday. Or maybe those of us who are partisans of limited government and individual liberty will come to recognize that he just did us a big favor. Time will tell.”
If it was a favor, then it was an entirely unintentional one. Unless we are forced to believe that he is somehow a triple agent (a sheep masquerading as a wolf who as been masquerading as a sheep). Not friggen’ likely.
Don’t forget Catch 22 guys – approximately 50% of the US population pay NO INCOME TAX they will therefore be EXEMPT from paying ObamaTax and the approx 50% of Taxpayers will have to pay MORE to cover them.
Meanwhile the self SAME 50% NONE Tax Payers are almost universally Obambi lovers and will vote for the disgusting lying cheating Democrats as they always do. Said disgusting Democrats will them take MORE Tax from those who actually pay it and give it to the feckless 50%.
Its a PONZI scheme and vicious circle and Obambi and his Regime both know it and play to it.
Right, Rog, it’s a tax on people who depend on the public coffers for their health care, via the emergency room.
POTUS and SCOTUS
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I am unqualified to argue within the rarified atmosphere the highly esteemed Mr. Kimball does with ease when he invokes “The Federalist Papers” to support his arguments. Nor is my knowledge of constitutional nuances and niceties at a level with his.
But still, resorting to the “Constitution” and the “Federalists” to denounce Obamacare & Co. not only seems an exercise in futility, it’s positively jocular. How extending basic health care to the unfortunate in this country = becoming wards of the state and/or losing “personal liberties”, is an argument I might have accepted as a Freshman in High School. But I hope I have long since risen above that level of mental malleability.
Why don’t we just go back all the way to the Magna Carta or Hammurabi’s Law and see what we can glean from those.
I have yet to read or hear a convincing argument as to why ObamaCare should be repealed, shredded and buried in a sealed steel coffin forever. Of course it’s “going to cost”. What kind of argument is that? It’s not an argument; it’s a whine and a tantrum.
You’d think Obama (May Allah Bless and Give Him Peace) and SCOTUS had just declared Sharia as the Law of the Land.
I clearly remember in these very pages predicting that Obama would win the election whereupon I was vilified and verbally assaulted for that outrage. The same thing…and the same arguments…are now being made about ObamaCare.
There seems to be an ugly and sinister spirit afoot in the Land. ObamaCare, I’m beginning to see, is simply the excuse for this hostility and hatred . ObamaCare is the platform upon which this snarling evil spirit is now vindicating itself.
What the real target is, I’m not yet quite sure. But it isn’t just ObamaCare. Give me a reason why I should vote Republican in November and I will. But if you can’t, I’m going to vote for Obama again. Period.
“I have yet to read or hear a convincing argument as to why ObamaCare should be repealed, shredded and buried in a sealed steel coffin forever. ”
The ObamaCare mandate was enacted as a penalty flowing from Congress’s supposed Commerce Clause power. It has been upheld as a tax coming from Congress’s supposed power to tax-and-spend under the General Welfare Clause.
The General Welfare clause is not a clause, rather a preamble to the limiting 18 powers enumerated in Art. I, Sec. 8
There is no federal power to tax inactivity in the Constitution.
There is no federal authority to regulate inactivity in the Constitution.
There is no ‘effect upon commerce’ acid test to the commerce clause in the Constitution.
So the mandate to force me into commerce is interpreted as a tax on my choice of non-commerce ?
Nowhere in the law before the supreme court does the word ‘tax’ appear. They ruled on something that was not there, in a bill the congress did not have the constitutional authority to pass.
How’s that you general welfare over individual liberty tool?
Pied Piper, keep this under your hat but medical coverage has been extended to the poor for about 50 years now, shhhh! As a matter of fact Medicaid, you’ve heard of that I assume, has been broadend three separate times starting in the 1990′s. That’s also a secret. So you see this takeover has nothing, Nothing, Nada, Zero, to do with the poor.
I will give you an A for spewing bile, but do remember, it’s bad taste to insult people who you wish to see deprived of what had been a freedom. Now take to the streets and see if in the meantime you can’t help someone with their medical bills, actions, personal, do speak louder than bile.
And don’t forget, Obama holds you in contempt, he may have a point.
You obviously don’t pay your own bills.
Come back and talk with the grownups when you do.
Amazing for sure. I spent a number of years with the band Fishbone and I always thought the same way. I never heard the same “song” twice.
Roberts absolutely did us a favor.
He framed the issue in a way the Republicans never could.
If he had sided with the Scalia et al, it would have been seen as a partisan vote, straight down party lines. Instead, he horse traded. He got two leftist judges and Kennedy to put the hammer down on the attempt to iron fist the consumers and the states.
Then, he threw a bouquet into the laps of the GOP. Repeat after me, Republicans.
IT’S A TAX.
ObamaTax never was anything but a tax. Make them swallow this…whole.
They sold it in a bait and switch. Scream this from the rafters. Say it every day for four months. This administration is a bait and switch, coverup, dirty, corrupt and imperious cabal.
Roberts didn’t take the issue away by ruling it (obviously) a complete lie. He put the lie on the witness stand and told the Republicans to cross examine it. Every day. For four months.
There is NO answer that the witness can give that doesn’t put the lie into a brighter light. The Democrats are trapped…like rats.
Roberts also gave the Republicans a BIPARTISAN Supreme Court blasting…on the unconstitutional power grab. The individual mandate as a government overreach…is not only a naked attempt at an imperial power grab…it is a forewarning of what this administration is willing to do. The Republicans need to make the BIPARTISAN blast…front and center on the campaign trail.
And…Roberts handed back a three day old rotting fish to the Democrats. Sure…he didn’t “throw it out in the garbage”…instead, he wrapped it in Obama’s neatly creased trousers…ObamaCare sleeps with the fishes. 26 states are going to thumb their noses at him. Just about half of the “redistribution” candidates won’t get to play.
We aren’t thinking this through properly. That’s because we have Republicans who were handed something…which is like giving a live grenade to toddler. The enemy is in less danger than we are. Let’s play chess, not checkers with this decision. Think several moves ahead. In the right hands….this is powerful stuff. Figure it out. Connect the dots.
Roberts didn’t hand us lemons…he built us a lemonade franchise.
It’s interesting to look at the White House’s two-pronged strategy on Day 2 after Roberts’ decision. On one side, they sent out David Plouffe to buck up the party faithful and basically see if any of them would be stupid enough to metaphorically put on the Star Trek ‘red shirt’ go out there and defend ObamaCare based on Thursday’s ruling and take whatever come at them.
For themselves, the White House pretty much adopted the Robert F. Kennedy strategy from the Cuban Missile Crisis, which was when presented with one friendly and one unfriendly response from Nikita Khrushchev, reply to the friendly one and pretend the hostile message never existed.
They’re treating the ObamaCare decision as if John Roberts’ delineation of the mandate as a tax doesn’t exist, and are only responding to the position to uphold as outlined by Ruth Bader Ginsburg in her grumpy concurring opinion. Team Obama and the big media are going to try as hard as the can to put into the mind of swing voters that Ginsburg wrote the majority opinion, which maintains the legality of ObamaCare under the Commerce Clause, while Roberts’ opinion is to be locked in a closet by the Democrats and their supporters in the big media.
That’s why Team Romney has to hit this hard and keep it up all the way through November. It’s not just a matter of it being an election issue, it’s a case of framing the narrative for the future as to what ObamaCare is and why it was upheld by the Court. Lose the narrative, and you end up in the same situation as with Plaimegate, where people think Dick Cheney, Karl Rove or Scooter Libby released the information and not Ken Adleman, because the left framed the situation to their advantage. If they do it again here, not only will Obama win re-election, but any serious effort by Roberts in his opinion to limit expansion of the Commerce Clause will have the lifespan of a fruit fly, because the public will come to believe the Dems’ spin that ObamaCare isn’t a tax, and remains a mandate as they define it.
I seem to recall spending the better part of 2009-10 arguing that it was a tax, along with most other Republicans. That is why Obama had to go out in several venues and argue it was not.
Now many of my compatriots are furious with Roberts for ruling that we were correct and Obama was lying all the time.
Still, we have an election in just over four months. Republican candidates for House, Senate, and President will be running to repeal the law and Democrats to implement it fully. The voters get to decide, just as we decided on a Democratic Congress from 2007-10 and a Democratic President in 2008.
Now the promise of health care reform isn’t some ethereal entity, undefined and ideal, it is real and practical and involves a plethora of new taxes which won’t even be close to enough to pay for it. We get to vote on it.
The US has evolved into Sweden West. This is perhaps not the end of the world; it could be Spain West, Greece West – or Zimbabwe west. The predictions about FEMA camps have not yet come true. While it is true that the populace – much of it – is happily governed by a President without provable legal or practical qualifications for the position, there remains dissent.
What is clear, though, is that the population is habituated to socialist policies, increasingly. What began with Roosevelt as a series of measures to ‘save’ a desperate Depression-Era population in the midst of world war continued with LBJ, Clinton etc. Now there is Obama, a King in his mind, a man of arrogance so bold you nearly have to admire it.
Scoundrels will work their will until someone stops them. It’s all very simple.
If you are somehow laboring under the misapprehension that we are still operating under that old piece of parchment in the glass case that Te Won uses as a speech prop (when not as toilet paper), you are sadly mistaken.
The enforcement mechanism on oaths was the duel. Once that became inoperative, pray tell what body of judges must we appeal to in order to enforce said oath?
I think we should change the oath of office to:
“I swear upon the Holy Kuran, now that I’m elected, not to let you see me stealing and lying, any more than absolutely necessary. And forget that stupid ol’ Constitution. What’s mine is mine,and what’s yours is mine. Unless I like you. Then, what’s his is yours. So help me, Allah.”
There. All on the up-and-up.
Don’t you feel cleaner, now?