SCOTUS upholds ObamaCare mandate as tax

by Walter Olson on June 28, 2012

For the real reaction and analysis, you should check with my expert Cato colleagues here and here and (Ilya Shapiro) here. Here are a few additional things I had to say on Twitter, in reverse chronological order (with occasional, but not continuous, updating):

Yet more “cheer up, conservatives” readings, these from @NRO: [Garnett] [Whelan]

Roberts, Kennedy “delivered victory to the right in the one [battle] that mattered” [Scocca via Moller]

James Fallows: Constitution means whatever 19 of 21 con law profs say it means [Bernstein]

RT @davidfrum Randy Barnett’s Win

Why didn’t style-stickler Scalia clean up “majority status” scraps? Daring @David_M_Wagner theory: there wasn’t time

RT @Sam_Schulman look forward to Variorum Edition. RT @jpodhoretz: @Sam_Schulman @walterolson It’s a palimpsest! ?#dissent

Why’d the dissent need to include a big discussion of severability? Another fossil record of former majority-opinion status?

RT @PunditReview Great news, @walterolson will join us Sunday evening at 7:30 on WRKO to discuss the Obamacare ruling. #awesome #mapoli [Update: podcast here]

RT @Popehat Masterful rebuke to a comment troll MT @walterolson Bitch you in MY HOUSE NOW!

Balkinization blog entitled to victory lap for identifying path to today’s ruling;

Hee hee. “Romney website: ‘Mitt will nominate judges in the mold of CJ Roberts’” [@Jamie_Weinstein]

Commenter: Nyaah nyaah, you @overlawyered types say you’re anti-litigation but favored suit vs. ObamaCare. My response;

RT @robinmarty: It’s good that ACA is upheld, since there are some folk at CNN who will need insurance not tied to their employers soon…

“It now falls to Congress…” My colleague Roger Pilon on today’s ruling [Real Clear Politics]

What gets lost in today’s “tax but not a tax” ruling: political accountability [@mfcannon] [Bader]

Here’s a 6/20 prediction from @jtlevy calling it closer than anyone I’ve seen (via Virginia Postrel)

Stop beating on Roberts, he’s living up to “conservative minimalist” billing [Adler] [Ted Frank]

Randy Barnett: Cheer up, both federalism and enumerated powers doctrine did well today [SCOTUSblog]

Roberts avoided confrontation w/prevailing academic gestalt of feds’ Commerce Clause power [@lsolum]

More on “tax power yes, commerce power no” [Epstein] [@ishapiro] [Kerr]

Did Roberts chop down the broccoli stalk, or could it grow back as “tax”? [Somin] [@ProfBainbridge]

Evidence that Scalia’s Obamacare dissent drafted as majority opinion before a Roberts switch [Solum]

Cheer up: at least Roberts chopped down the broccoli stalk & bolstered states against feds [John Steele Gordon]

A tax, yet a non-tax: why court didn’t invoke Anti-Injunction Act to toss challenge [Tejinder Singh, @SCOTUSblog]

RT @TCBurrus Another Justice Roberts is now the new switch in time that saved nine. #SCOTUS #healthcare

RT @JasonKuznicki Americans: Pay this tax or buy a private company’s product. Corporatism at its worst, cheered on by the left. #aca

Roger Pilon: Ruling only a bump in road [@CatoInstitute] Legal battle’s just begun [Adler/Cannon]

RT @CatoInstitute Unhappy with today’s #SCOTUS decision on #ObamaCare? Watch this video on how states can refuse to go along with it

Per Goldstein at SCOTUSBlog, Roberts reasoning on Commerce Clause is super-narrow, won’t help the libertarian side much in future cases.

Exploding-cigar ad hominem argument of the day: RT @MaxKennerly Has John Roberts gone even a minute in his life without health insurance?

The clouded crystal ball: “Why Chief Justice Roberts Won’t Side with the Liberals on Obamacare” [on @NRO yesterday]

@sethmnookin I’m not convinced achievements are as big a motivator as “stop our evil opponents” outrage, which Roberts undercut (for Dems).

Can’t say I’m surprised at ACA. With rare exceptions, the Court behaves as a small-c conservative institution.

Republican outlook for November just got big boost. So maybe Jeff Toobin’s right to claim Roberts looks after GOP interests.

RT @@NYDNHammond Robertscare

RT @Hudsonette: haha RT @delrayser: CONVENE THE DEATH PANELS!

Tom Goldstein of @SCOTUSBlog predicts Court will uphold ACA

Liberals shouldn’t defend FDR’s attacks on the Court” [Megan McArdle]

All indications are Dems planning all out assault on the court if it overturns PPACA” Don’t, says @toddeberly

RT @macrmccoy I love Web 2.0. RT @ABAJournal: Obama Will Learn Fate of Health Care Law Through SCOTUSblog, Media

“Judicial activism!” placards all made up. Now the only question is which side to hand them to come 10 a.m. [Alt]

Randy Barnett thanks those who made the SCOTUS ObamaCare challenge possible [@VolokhC]

RT @santaclaralaw #healthcarereform? Randy Barnett interview with Politico: You can find it here. #sculaw

{ 3 trackbacks }

GayPatriot » Supreme Court: Obama raises taxes on middle class
06.28.12 at 12:19 pm
Obamacare decision roundup - Overlawyered
06.29.12 at 1:45 pm
“OpEd: Supremely Unsecretive” - Overlawyered
07.07.12 at 3:00 pm

{ 16 comments }

1 Bumper 06.28.12 at 1:11 pm

Move over Benedict, here comes John Roberts.

2 Scott Jacobs 06.28.12 at 1:15 pm

That thing the left (from Obama on down, including the argument made by the Govt in front of the SCotUS) said was absolutely not a tax?

Totally a tax.

3 Nicholas 06.28.12 at 3:18 pm

So, since this is “Overlawyered”, a website dedicated to the proposition that people should sue each other less, I imagine the readers are angry at the Republicans for wasting time and money suing over an issue that turned out to be not an issue. If not, you’re rhetorical hypocrites, but don’t feel bad, most people are rhetorical hypocrites if you challenge them enough.

4 aaaa 06.28.12 at 3:18 pm

So, the plan invented by republican was attacked by republicans and one republican switched sides to uphold it? Quite funny …

5 No Name Guy 06.28.12 at 3:44 pm

I’m looking forward to the “tax” that mandates everyone buy:

– Arms and ammunition, to fulfill their duty to the Militia when “organized and disciplined” pursuant to an Act of Congress.
– A house or condo. After all, that’ll cure both homelessness AND revive the moribund real estate industry.
– 10 different newspaper and magazine subscriptions, since its in the national interest to promote literacy and to have a well informed public. Oh, and since in my fantasy, these will be only from an “approved” list of what qualifies as a “newspaper” or “magazine” – to irk my left of center friends, lets just say Mother Jones and the NY Times won’t make the list.
– Since the Big 3 are constantly in trouble, everyone must buy a new car every 5 years, and sorry, no “foreign” brands allowed – you MUST by a US brand. After that, if you really want to drive a Honda, Kia or Toyota, you’re free to buy one of those as well.
– A windmill and solar cells for their home (see above where you’re required to buy a home).
– Contraception. Ladies, you must purchase, sorry, I keep forgetting, pay the tax for pills, implants, shots, etc. on a regular basis. Gents, you know what it is….get out to the quickie mart and buy your required 10 pack no later than the 25th of the month, or else. Receipts must be submitted by the 5th of the following month. And no, it doesn’t matter if you have a couple hundred of ‘em in the medicine cabinet, you MUST buy, ahem, I mean, pay the tax, every month, need it or not. Those extra IRS officers will be checking up on you.

6 Walter Olson 06.28.12 at 4:16 pm

You know, Nicholas, if this website had ever announced the proposition “All legal action is illegitimate and needless, and all persons who file suits should be ashamed of themselves” you might have a point instead of just coming off as a clueless snarker.

In point of fact, I’m sure there is useful discussion to be had about whether some groups generally in sympathy with this site are too prone to resort to litigation themselves as a policy tool. You and I might agree in identifying quite a few cases of that sort in which, e.g., a badly ill-founded case is pursued for publicity reasons or to furnish leverage over sued institutions. However, a lawsuit attempting to resolve whether the most expensive government domestic expansion in decades is or is not constitutional, when the constitutionality is a close enough issue that the Court splits 5-4 and actually endorses the main constitutional contention of the plaintiffs, is not where I’d start in looking for ideological litigation to criticize as petty, needless, showboating or tactical.

7 Ted 06.28.12 at 4:30 pm

NNG,

The Constitution explicitly authorizes a mandate to fund a militia, and a military draft is also constitutional. Not a good example, nor was it a good example when ACA supporters pointed to similar 18th century laws as an “originalist” example of a constitutional mandate.

Nor is the home-buying case a good one. My taxes are going to go up this year because I’ll be switching from mortgage-financed home-ownership to renting; the effect is indistinguishable from a penalty on renting.

In TY 2001 and 2004, I got a tax credit because I bought an electric car; I thus paid more in taxes in each year of 2005 through the present because I didn’t buy such a car.

The taxing power has always been this broad. It might be nice if there was a constitutional prohibition on anything that wasn’t a flat tax, but it’s never been so.

8 Nicholas 06.28.12 at 4:38 pm

Walter, I agree with you. I think it was right and proper that the SC was asked to review ACA. Still, when I see this blog say that an injured person shouldn’t have access to torts against the company which profited from their injury, I have to wonder what kind of legal mind could think that. If that person is to be laughed out of court (which I disagree with) then I would expect this dispute should be laughed out of court (also disagree).

This decision shocked me, as it did most people.

9 Ted 06.28.12 at 4:51 pm

Nicholas: Still, when I see this blog say that an injured person shouldn’t have access to torts against the company which profited from their injury

That can’t be what you mean. When I cut my finger slicing a bagel, the hospital that examined me profited from my injury. Are you seriously claiming I have a cause of action against the hospital? Or just against the bagel and knife manufacturers?

10 Allan 06.28.12 at 6:19 pm

Look. Many people think the mandate and the whole ACA is a bad idea. Fine. There are lots of laws out there that are bad ideas.

The thing is. The mandate is constitutional, pure and simple. Unlike Roe v. Wade, there is some semblance of reasoning (from the concurring opinions) to support the conclusion, i.e., finding the federal government had the authority to pass the law. I like the result of Roe v. Wade, but I cannot think of a logical defense of it.

Don’t like the law? Then do what should have been done in the first place, elect 218 representatives, 60 senators, and one president and repeal it. Good luck with that. On the other hand, if you don’t like Roe v. Wade, you are stuck.

I think the CJ was right to find some way to find the law was constitutional.

11 David Schwartz 06.28.12 at 7:03 pm

Allan: Are you seriously endorsing making a legal decision by deciding what the verdict “should” be and then hunting for some legal justification for that verdict? Isn’t that a rejection of the rule of law?

12 No Name Guy 06.28.12 at 8:06 pm

Ted

Pure sophistry @ 4:30, plus a whole lot of flawed accounting. You can do better that such weak gruel.

My point being that if they can twist the individual mandate to procure a privately provided service to be a so called tax, when it clearly isn’t*, then they (and by “they” I mean a President, Congress and the Supreme Court) can twist a mandate to buy any privately provided consumer good as a tax. I merely pointed out some items that are, in fact, consumer goods no different than medical care or a prepaid medical plan (which is, in fact, what most so called “health insurance” is). I also posited the excuses they could claim to justify mandating buying said goods.

Pick what ever you want as a consumer item, even broccoli. By the logic of this decision, substitute broccoli for health insurance and they can mandate you buy it.

If this was in fact a tax, it would be structured as one. They’d take money (at the point of a gun) from the Citizens, filter it through a huge, inefficient, wasteful bureaucracy in DC, and it would come out the other side in Federally run hospitals and government paid doctors or via Medicare / Medicaid. It doesn’t do this. Therefor, it’s not a tax. Instead, a gun is pointed at the head of the citizen and they’re commanded to buy a product from a private vendor or else. That sir, is not a tax. That is a mandate, period. QED.

Today is a dark day in the history of the Republic. This decision will be cursed by our children as a major slide into a totalitarian state that pries into every minute detail of our lives under the excuse of “health care”.

* – Ted, the beauty of being an engineer is that I’m forced to live in the real world of how things actually work, not a fantasy construct of how things ought to be that too many lawyers live in. Tax? My @$$. It’s spit on the face of Lady Liberty, not makeup, and no amount of sophistry can change the fact.

13 Allan 06.28.12 at 9:37 pm

David,

Exactly the opposite. Roe was bad because it does not, IMHO, follow sound constitutional principles. I do think that states should not prohibit abortions, but I don’t think the constitution stops them from doing so. The health care decision was good because there is some constitutional basis to it.

The federal government (and state and local governments) can do a lot of things. Whether it should do them is a totally different matter.

This should not be a debate on whether the ACA is good or bad. It is a debate on whether the ACA is constitutional and it is.

14 Max Kennerly 06.29.12 at 7:58 am

I can say with the utmost confidence the Framers of the Constitution would laugh at this debate. Jefferson would say, “you let your government detain you indefinitely without probable cause or due process, and you think a small tax to compel you to do something everyone wants to do is the biggest constitutional issue you have? For what purpose do you think we staged a revolution?”

15 Walter Olson 06.29.12 at 8:52 am

I’m not sure I grasp the theory under which the Framers could either be alarmed about indefinite detention, or about a federal takeover of a large sector of the economy under flimsy constitutional authority, but could not be alarmed about both.

16 Max Kennerly 06.29.12 at 8:03 pm

First, “federal takeover?” To the extent Republicans thought it was a takeover, they shouldn’t have opposed the public option, which would have left the private sector to operate essentially unfettered.

Second, the Framers could of course be alarmed by both. What they most certainly would not be is alarmed by is solely a minor tax to compel an important societal behavior that benefits citizen and society alike by minimizing catastrophic medical costs. The Framers included no express limits whatsoever on Federal power to regulate commerce; indeed, they specifically granted that power, plus taxing power, plus deliberately expansive “general welfare” power. In contrast, the Framers established several express limits on detention and prosecution, including, by name, “probable cause” and “due process.”

Watching a bunch of Guantanamo supporters cry about the Constitution is, shall we say, amusing.

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