JULY 2 / If you read only one thing about . . .

. . . Obamacare v. the America People, read this.

By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation -- and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory . . . .

It's an elegant theory whose only flaw . . .

. . . is that it is repudiated by Chief Justice Robert's own language and logic. His gambit substitutes one unconstitutional expansion of government for another and rearranges the constitutional architecture of the U.S. political system.

(Editorial, "A Vast New Taxing Power," Wall Street Journal, June 2, 2012) 

The editors treat a serious subject seriously. They lay out the chief justitice's legal arguments and show how they fail.

The editorial may be a tough read, but the subject is also a tough think. You'll be rewarded for soldiering through it.  

Comments

[Ace]

Honestly, I am not sure where I come out on the debate. On one hand, Congress can tax the people. Congress could have chosen to tax the income of every individual at an additional 1% unless that individual obtained qualified health insurance. Think of qualified health insurance as a tax credit. Yes, the wording is different from the penalty language, but in substance it is the same. Also on that hand, the Supreme Court may declare a law unconstitutional only after giving it every possible reading. Given these facts alone, I think Obamacare survives review, hands down. As Justice Robers stated, it is not the job of the Supreme Court to protect the people from political decisions.

On the other hand, neither Congress nor the president argued that the individual mandate represented a tax and, in fact, vehemently denied that the individual mandate was a tax. While the SCOTUS was not created to protect the people from political decisions, the SCOTUS should not allow the legislative and executive branches to defraud the people. Were it me, I would have written an opinion striking down Obamacare solely because those who passed it sold it as "not a tax." They meant what they said, and they said what they meant. It is not a tax, 100 percent.

UNCA D: Well said. In reply: (1) It may not be part of the high court's mission to protect the people from the consequences of political decisions, but it is the duty of the court to protect the people from unconsitutional legislation. (2) Whether politicians have lied about the character of legislation is a political problem, to be resolved politically. The meaning of the words in the legislation is a constitutional problem. That is all the court should look at, in my opinion. (3) I don't entirely follow your argument that a qualified policy would operate like a tax credit. For one thing, the penalty is intended to function against people who otherwise not obligated to file or who must file but have no tax liability. There is no way to recover the penalty or tax against them, except as an additional penalty payment. Some credits are "refundable," meaning you get the cash if you have no income-tax liability. I have never heard of a "defundable" credit that would add an income-tax liability that otherwise would not exist. (4) The government did make the tax argument before the court, albeit briefly and with only minimal support in the briefs. One of the best complaints against Justice Roberts's opinion, it seems to me, is that the arguments were largely pulled from the air. Maybe the arguments are right; maybe they're not. But I don't think the court is obligated (or permitted) -- or, at a minimum, wise -- to make up doctrines that the parties did not fully argue or fully brief. If the court believed the tax argument had merit, it should have called for a another hearing on that issue. (4) The editorial argues, in effect, that treating this penalty as a credit in reverse would be an unprecedented expansion of the income-tax system. I don't know enough to agree or disagree, but you do and the argument obviously did not persuade you. Maybe you're right. (5) I would come out at the same place as you, though by a different route. The government said the act was within the scope of the commerce clause. It was not. QED. Subsequent complaints that the court should have okayed it as a tax would have been sufficiently answered by this: So why didn't you argue that case more forcefully?