Take a Deep Breath
June 28th, 2012 - 9:54 am
Now that the shock has worn off, let’s think about this.
President Obama is now the owner of the biggest tax hike in history, he wields the most powerful IRS in history, has effectively been called a liar by the Supreme Court, and the Commerce Clause finally hit a wall future congresses will find it difficult to scale.
How again is this a political win for the Democrats?
Not only that, it’s a tax on not doing something.
You know what, exercise is good for your health and impacts the health care system. Mandate gym membership or pay a tax on not exercising. Mandate membership in a community garden where you get fresh vegetables or pay a tax on not eating healthily.
“Not only that, it’s a tax on not doing something.
”
Actually it is a tax on breathing.
They no longer need the commerce clause, that’s how.
What are they prevented from exercising through the commerce clause that they now won’t be able to enforce through taxation?
Can’t scale that giant wall over there, but here’s a new door for you!
True — so far as it goes.
Remember, that ObamaCare was sold as not-a-tax, and would never have gotten through even Nancy Pelosi’s House had it been sold as a tax. Bcause Americans do still hate taxes, especially ones they have to pay ourselves. So that very powerful sales tool has been taken away.
But the only check on the arbitrary use of that taxing power is 51% of the vote. If you’ll allow me to indulge in reducto ad absurdum, a party which won a supermajority of Congress could theoretically pass a law saying that all residents of a congressional district which voted for the losing side must move to designated locations in a reserved area of Federal land, or forfeit all their possessions under the taxing authority of Congress.
Prove me wrong.
Ack. Read that “reductio” and “any congressional district”
Hmmmm, perhaps Greg Q DID prove me wrong in reply to comment #7 down below.
The requirement that a tax be feasibly payable does put a damper on future mandates.
Besides, they always (or at least since 1913) could tax us on pretty much anything they wanted. This just said “if it looks like a tax and smells like a tax, it’s a tax.”
“Interstate Commerce Clause” justifications for unlimited power grabs have just hit a brick wall. Basically, Congress cannot regulate something that is not happening; if you are not engaging in commerce then the Government has nothing to say about it. Roberts had to go with the far less appealling (and much more anger-inducing) taxation reasoning.
Ladies and gentlemen of the GOP, start your engines!
I’ll couple what you said with a point Ed Morrissey made.
http://hotair.com/archives/2012/06/28/mandate-upheld-what-now/
1) The genie is out of the bottle. Even if *if* Obamacare gets repealed, the State can still use this argument for anything else they want.
2) You’re not taxed only for non compliance. Complying is a tax too. In either case you have to fork over money under force of law.
Think Soylandra was bad? Imagine it without the middleman. Buy a Volt or else.
Funny how the Single Payer, nationalization, anti-corporate go-gos are so gleeful about a precedent that means anyone with enough juice can now setup their own personal tax by renting the IRS.
So even if Obama and the Dems loose this… they can still win if they just hang on. Keep Obamacare in and keep this idea of anything is legal if it’s a tax.
That was my first reaction, too. (Scroll down.)
However…
Taxes are a much more difficult sell, and thanks to the Byrd Rule, much more easily repealed.
Yep.
Remember how the Left pinkie swore that “health care is different”, and that “it would only happen this once”? They were lying, we know it, they know it, and knew it.
Roberts, however, made it stick.
The effect of this ruling is “all mandates are taxes.” Which means that the next time someone tries to get a Mandate through Congress, it will be scored as a tax.
ObamaCare only made it through by not being a tax. No other Mandate will be able to do that.
Yeah, what you said: http://pjmedia.com/tatler/2012/06/28/the-sensible-parts-of-the-obamacare-decision/
Justice Roberts just forced the Democrats and the President to run on their record of governance for the past 4 years. He has provided clarity to the argument in a way that also makes abundantly clear the remedy.
Asking the Democrats to run on their record is like asking Shelley Winters to compete as an Olympic swimmer with 50 pounds of scuba weights around her waist.
While that spectacle might be amusing to watch the result is certain from the first splash. Forcing the Democrats to run on their record of incompetency and overreach is the surest way to victory for those of us who believe in small government.
This is a great day. Our argument has now made with greater clarity. We cannot wait for “big daddy’ to come save us from ourselves because he has just said the truth, “you cannot expect the Supreme Court to save you from bad legislation”.
The term you’re looking for is Pyrrhic Victory.
“Another such victory and I am undone”. Look it up on Wikipedia…
If the Repubs start talking tax increase…today Obama joins Pyrrus (sp?).
Looked it up from Plutarch/Wikipedia”
“The armies separated; and, it is said, Pyrrhus replied to one that gave him joy of his victory that one more such victory would utterly undo him. For he had lost a great part of the forces he brought with him, and almost all his particular friends and principal commanders; there were no others there to make recruits, and he found the confederates in Italy backward. On the other hand, as from a fountain continually flowing out of the city, the Roman camp was quickly and plentifully filled up with fresh men, not at all abating in courage for the loss they sustained, but even from their very anger gaining new force and resolution to go on with the war.
—Plutarch”
I didn’t mention him because to modern audiences,”Pyrrhus” sounds like some sort of venereal disease. I knew you’d know but beyond that, it was far from certain.
Because the squishy moderate voters aren’t ever going to actually HEAR that this is a tax. They’re just going to hear “Free stuff for you from the Dems!” and vote straight D down the ticket.
And then Pelosi gets her gavel back and can start throwing whoever she wants in jail, because it’s only “fair”, as she said before.
How is this a victory for the Democrats?
perfectly reasonable question, unfortunately I have an answer:
1) The Senate now can justify their refusal to take up the repeal bill passed by the house because it’s now a Constitutional bill
2) The precedent is set that the government can make you do anything if it calls it a tax.
3) New taxes only matter to people who pay taxes, the people who don’t (45% of the population and counting) will only hear the “free health care” and be happy. Add a few sheep who don’t pay attention enough to understand what happened and it’s still a minority.
4)A huge portion of the sheep out there won’t know and won’t care about the bad precedent set, about the threat to liberty, they just now they get free health care. Despite the growth of the tea party, there’s more sheep out there.
5)Roberts revealed himself as “W”‘s Souter, which means that their long standing war on conservative judges just gave them control of the Supreme Court.
6)People don’tcare about process issues if they like the outcome. (see the DREAM act) People like free stuff. Additionally, hate of the law will be blunted now that the SC called it constitutional.
7)They have all the authority they need to expand government in new and bigger ways, and the sheep are cheering that they get free health care (“this is how liberty ends, with thunderous applause”)
8) Either Obama wins now that is one victory has been vindicated, or Romney barely wins, tries to undo the fiscal damage, it doesn’t stop the next recession from hitting, he’s blamed for Obama’s mess and the new left wing electorate, with re-inforcements from Mexico via the DREAM act amnesty, vote in another progressive Democrat to Congress and our path to becoming Greece is complete. Either way, America as we know it is over.
Please please please someone show me how i’m wrong
I don’t know if people will acquiesce so easily to unlimited government, but you are correct that this means unlimited government for all practical purposes.
The only fix is a new amendment to the constitution circumscribing the tax power. The only good thing here is that the commerce clause has been circumscribed somewhat.
You’re ever so wrong.
1) Doesn’t matter that it’s “Constitutional”, it’s unpopular. Refusing to vote to repeal is now the same as voting for it in the first place. Democrat Senators and Senate candidates will now be on the hot seat: Will you vote to get rid of the Individual Mandate (which your constituents hate), or are you a pawn of the Democrat Party?
2) Wrong. Roberts’ Opinion specifically states that it’s only a “tax” because it’s not big enough to “force” people to buy health insurance. There’s a long set of Supreme Court precedents saying that a “tax” so big you have to do what the gov’t wants rather than face the “tax” is NOT a “tax”, it’s a punishment. As the Federal Government still doesn’t have a “generalized police power”, they still can’t do that.
IOW, the “Mandate” was only a “tax” because Roberts ruled that it wasn’t big enough to actually function as a “mandate”. (Note: for Medicare the gov’t “stick” WAS considered “big enough” to force the states to do the expansion. As a result, it was found unconstitutional.)
3) If the Democrats had been willing to pass a tax to push through ObamaCare, we’d have the public option right now. They went with the “Mandate” BECAUSE they could claim it wasn’t a tax, and they thought that would make it less unpopular. That won’t work ever again.
If there’s a constituency out there big enough to carry and hold the House, Senate, and White House, and they’re willing to pay taxes to get what they want, they’re going to get it. That was true before this decision. Nothing there has changed.
4) Grow up. Calling all those who disagree with you “sheep” just marks you as unserious.
5) Roberts possibly revealed himself as a total wuss. He’s not W’s “Souter”, because Souter would have found the Commerce Clause big enough to embrace the Individual Mandate.
6) Not one American in 100 is going to hate the Individual Mandate any less because the Supreme Court said it was an allowed tax.
7) Yep, those “sheep” sure are cheering! That’s why the Individual Mandate constantly polls so poorly, because the “sheep” love free things.
With logic like that, you’re ready to join Roberts.
On the plus side, the Romney people are reporting they’ve received $1 million in small donations today since the decision was announced. I gave him some.
Along the lines of MarkD above, however:
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world’s greatest civilizations has been 200 years.”
― Alexis de Tocqueville
At last, a problem that the Administration cannot blame on Bush.
I really do think this is political gold for the Romney Campaign. It is even deeper and better than I could have imagined. Cornerstone of the attack strategy against Obama: taxes and corruption.
1) The fact that it only survived as a Tax is a concept that voting Americans can grasp. This is the greatest softball pitched to Republicans since Walter Mondale said, “Mr Reagan will raise taxes; so will I. He won’t tell you. I just did.” This isn’t some kind of arcane clause buried deep within a bill that Republicans could never turn into a soundbite. No need to get into stats; Romney needs to go into full Clinton mode, “I feel your pain.” Not only is a populist message, it might humanize the wooden totem pole.
2) Remember all the exemptions? The list is up to 1,471 companies! This should be shot through a megaphone: http://commoncts.blogspot.com/2011/07/obamacare-waivers-list-is-up-to-1471.html — about half of the employees covered under these exemptions are Union employees. The corruption in the ACA is so staggering, it makes the stimulus look like 50-cent coupon for Tide.
How would you play it?
It’s a win because all most Americans will hear is that the constitutionality was upheld. There won’t be any mention of commerce clause or tax. All they’ll hear is Obama ‘moving forward’ and Dems saying the ‘conservative’ SC Justice sided with them and that’s the end of the line. Judging by most of the commentary on bigger media sites, no one that supports the law even knows what’s in it. They’re talking about free healthcare for all and no medical bills. They don’t even know what’s in the law and big media will ensure that they stay in the dark. So, it’s a win for Democrats because Obama looks like a winner.
The ball is in Romney’s court now to exploit the tax issue and the lies spread over the last few years. The more he can link Obama saying that the mandate isn’t a tax to the ruling today – making it clear as day what just happened – the better Romney’s chances. It needs to be said multiple times a day every day until November 2nd. But yes, it’s a win for Obama today. Even if most of his supporters are celebrating things that don’t exist, it’s still a win.
I think you are trying too hard to put a positive spin on this, Stephen. I somehow get the impression the SC justices are just winging it these days, with no real jurisprudence guiding them. Justice Roberts has now exposed himself as someone very much under the influence of beltway opinion. We do not need weak justices, but it seems that is what we have. Half are partisan, half are worrying about their portraits…
This decision could energize the conservative base more and help Romney’s chances, but unless he receives solid majorities in the House and Senate he does not stand a chance of repealing the legislation.
I have not seen the actual statement by Justice Roberts, but have seen two versions of it–one that says the SC’s job is not to save us from bad legislation and another that says the SC’s job is not to save us from the fallout of our political choices. Whichever way he actually said it–he is dead wrong. That is exactly what the SC is designed to do. What they are really doing these days is anyone’s guess.
I would have much preferred “Justice” Roberts side with the dissenters, and be done with it, to this “silver lining.” This simply establishes a precedent the proggies will pursue to the end of time. =>[.]<=
From the Atlantic( http://www.theatlantic.com/national/archive/2012/06/in-health-care-ruling-roberts-steals-a-move-from-john-marshalls-playbook/259121/):
Snip…
“So the president was ready for the Court to break right or break left. But instead, Chief Justice Roberts juked. He agreed with the challengers that the mandate couldn’t be justified under the Commerce Clause or even the Necessary and Proper Clause — thereby reinforcing the narrative that the Democratic Congress overreached in passing the bill. His opinion — though not the result — may provide much help in the future to judicial conservatives, as it suggests that, with the dissent, five justices are in favor of a more aggressive role for the Court in policing the bounds of the Commerce Clause (and the Spending Clause, which was at issue in the Medicaid legislation). And while Roberts ultimately voted to uphold the Act, he did so on a ground that, for Obama, plays terribly: that it’s a tax.
Now, much as Jefferson was two centuries ago, Obama is boxed in. What is he to do? He can’t criticize the Court for judicial activism, as it upheld the law (putting aside the way the Court limited the Medicaid provisions, which are not particularly salient to voters). The decision undercuts a potential theme of his campaign — that a conservative Court is out of control. And yet Obama can’t trumpet the decision either, since it states that Democrats overreached in trying to justify the law under the Commerce Clause. Worse yet, it calls the mandate something that Democrats didn’t want it to be: a tax.
Conversely, the decision may be the optimal result for Mitt Romney. If the Court had struck down the mandate, it would have taken off the table an issue that Republican base voters care tremendously about. But in upholding the law, the Court didn’t just leave that issue on the table; it gave Romney tremendous ammunition he can use to criticize Obama as a tax raiser.
…End Snip
I think that Roberts made a gutsy call. I am glad that he got the four most liberal idiots to ever sit on the Bench to sign on to a statement that the abuse of the Commerce clause is a bad idea.
But.
Democrats are demons. The Constitution means nothing to them. They ignore the Constitution, law, precedent, economics and even the laws of physics in order to justify their desires. Dems will simply pretend that this is carte blanche to rewrite history and law.
Roberts was right. We have to stop them ourselves.
Dear Stephen,
Alas, I must respectfully dissent from your opinion that CJ Roberts’s ObamaCare decision is a “political win” generally and that the Commerce Clause “finally hit a wall.”
Not only am I extremely disappointed in CJ Roberts’s lack of integrity, but I’ve been extremely dismayed at the attempts by conservative and libertarian pundits to claim that this is somehow a victory for limited government. The scope of the Commerce Clause decision on the activity/inactivity distinction, even if it stands as anything more than dictum, is extremely limited and inapplicable to 99.999% of all federal regulations, as almost every regulation in fact regulates pre-existing activity. But more important, Ginsburg powerfully makes the case that Roberts’s Commerce Clause analysis is dictum and three other Justices agree with her. Thus, unless this portion of CJ Roberts’s opinion is expressly cited for this proposition in another majority opinion in the next couple years, it probably will end up as dictum and inconsequential, relegated to the same precedential junk heap in Commerce Clause history as Lopez and Morrison in our post-Raich world.
But even if Roberts’s Commerce Clause analysis is affirmed and there is some future regulation that is affected by this new rule, his capacious reading of the taxing power now makes the Commerce Clause moot. Future Congresses now have a clear and open-ended precedent for always creating a regulatory “penalty” and justifying it as a constitutional “tax.” In fact, I will bet you a bottle of Pappy Van Winkle bourbon or The Balvenie scotch that future statutes creating new regulatory regimes use the exact same exact penalty language from the ACA that was upheld by CJ Roberts as an exercise of the taxing power.
In sum, Robert’s ObamaCare decision is nothing less than an unmitigated disaster for limited government.
Moreover, I’m shocked that some conservatives and libertarian commentators have been so willing to overlook the entirely shoddy reasoning in the decision itself, arguing that Roberts is somehow some genius who pulled a contemporary version of Marbury v. Madison. This is wishful thinking and there’s nothing in the decision that supports this. In fact, CJ Roberts’s completely unprincipled shift between a textualist reading of the Anti-Injunction Act and a functionalist reading of the taxing power is just mind-boggling stupid. So Congress can now enact a non-tax regulation under the Constitution and this will be justified as an exercise of the taxing power, but the Court won’t apply to this “tax” other statutes adopted according to this same provision in the Constitution, such as the Anti-Injunction Act, because the word “tax” is not used in the statute being challenged? Frankly, this is incoherent reasoning that I might expect from a 1L whom I would then promptly destroy under Socratic questioning in my law classes at George Mason, but coming from someone who is allegedly as smart and insightful as CJ Roberts? The man knows better than that. And don’t even get me started on his attempt at sidestepping the direct tax issue itself; the Joint Dissent exposes his fallacious reasoning on this point just as well as Ginsburg does on his Commerce Clause dictum.
The recent reports that Roberts switched his vote late in the process are both insightful and explanatory, if only because they help make sense of this decision. His opinion has all of the hallmarks of being (1) slapped together at the last minute and (2) done for reasons other than jurisprudential principle. So, CJ Roberts will now join Justice Roberts from 1937 in their respective infamy for abandoning the Constitution at the time that the country most needed it, and who have done so for no reason other than to save face with the political elites who are demanding that they capitulate.
So, in my mind, there’s no making lemonade out of this rotten lemon. Alas, this makes November even that much more important now — and we have to retake the Senate, too. Hopefully, voters will be energized enough by this monstrosity of a judicial decision to elect Romney and congressmen who will repeal the statutory horror that gave birth to it. Unfortunately, this still leaves on the books the constitutional decision by CJ Roberts for future statist congresses and presidents to exploit.
For these reasons, I respectfully dissent from anyone who claims that this decision is anything but a complete win for statism. We can still fight this, and I will fight it with everything I have got; in fact, I am not one of these all-or-nothing libertarians who packs up my bags and goes home the moment a politician or judge says something bad. I recognize that legal and political change comes incrementally, and that’s what we need to fight for, but we do not do ourselves or the cause of liberty a favor by pretending that a brutal loss to statism is somehow a win for liberty.
We took it on the chin on June 28, and what makes it worse is that it was done by someone who was supposed to be our ally. Perhaps that’s why people are having trouble recognizing this for what it is. But let’s recognize this fact, pick ourselves up and continue the fight.