19 Comments

[…] Walter Olson offers a roundup of his tweets here.  Glenn has a great roundup here; seems others bloggers/blogresses have offered titles similar to […]

Move over Benedict, here comes John Roberts.

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.

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.

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

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.

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.

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.

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.

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?

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.

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?

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.

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.

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?”

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.

[…] here, here, and here. […]

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.

[…] The Daily, the iPad-native news launch. Earlier coverage of NFIB v. Sebelius/the Health Care Cases here, here, here, here, here, etc. […]