In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments....Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.
And Mark Kleiman on Wednesday:
....the ill-tempered and intemperate) outbursts from Alito about juvenile LWOP and (especially) Scalia about immigration make me wonder. If their side had won a huge victory – if they were about to overturn Obamacare – wouldn’t you expect them to be on their best behavior, and disinclined to reveal the full extent of their partisan hackery?
On the other hand, if Kennedy or maybe even Roberts decided that killing ACA was a bridge too far, it would be perfectly understandable if that put the extreme reactionaries in a pissy mood.
I offer no prediction. But I’m not in total despair. I’ll leave that for tomorrow.
I've heard others say they had the same suspicion, but didn't hear them say it before the decision came out.
Another effect includes Vermont single payer plan getting a boost:
Vermont's push for universal, publicly funded, single-payer health care is going ahead no matter what, Gov. Peter Shumlinsaid Thursday, but he hailed the U.S. Supreme Court decision upholding the federal Affordable Care Act as a big boost for the state's efforts.
Shumlin called Thursday "a great day for Vermonters and a great day for Americans." But, he added, "I would say that of all the states of the Union, the least to be impacted by the Affordable Care Act is probably the state of Vermont."
That's because Vermont's health care overhaul, which legislation passed last year says will be implemented by 2017, goes well beyond the federal law, in the direction of a Canadian-style public system.
The biggest impact from the federal law will be money: an estimated $400 million a year in tax credits to help people with low and moderate incomes buy health insurance. That's expected to provide a partial answer to a big and still unanswered question: how Vermont will pay for its new health care system.
I'll add more on that Commerce Clause dicta thing: if Obama's re-elected and gets to replace one of the five justices who made up the nonsense, it's far easier for a lower court to make up its own mind rather than glumly affirm a bad precedent and wait for the Supremes to overrule it.
Finally, Anthony Kennedy as a radical with some liberal social views, not a moderate. I guess I can see it.
Middle of the swamp
ReplyDeleteMost revealing line from that link:
ReplyDelete"How come so many people think this is about health care? To me it’s not about health care at all."
If their side had won a huge victory – if they were about to overturn Obamacare – wouldn’t you expect them to be on their best behavior, and disinclined to reveal the full extent of their partisan hackery?
ReplyDeleteThis can only be said by someone who hasn't been paying attention to conservatives for the past decade at least.
On TV, an expert said that George Washington required Americans to buy guns for defending the country. It may have been the Harvard professor Larry Tribe.
ReplyDeleteThe point is, that the government has made people buy a product in the past.
Snapple, here's an article covering it:
ReplyDeletehttp://www.usatoday.com/news/washington/judicial/story/2012-03-19/health-care-george-washington/53677358/1
But, of course modern conservatives are absolutely certain that the Founders didn't know the Founders' intent when the Constitution was written. Only modern RWingnuts *really* know their intent.
Does not the constitution specifically enable congress to impost imposts upon the people?
ReplyDeleteDavid - no question that Congress can impose taxes and tax penalties, but the D's didn't call Obamacare a tax. The unusual thing here is that Roberts said in effect, "I don't care that they didn't call it a tax, it looks like one so for Constitutional interpretation purposes I consider it one."
ReplyDeleteAnthrosci- Alito and Scalia were clearly off their feed early in the week, so I'm giving Mark K some credit.
In 1863, you could pay $300 to avoid the draft, and Congress didn't call that a tax either. http://www.yale.edu/glc/archive/962.htm
ReplyDeleteAlso, we're talking about the individual mandate, specifically the penalty/fee that you'd pay to avoid having to buy health insurance. Calling Obamacare in toto a "tax" is falling into the Republican message machine's trap. The penalty is expected to generate about $3 billion per year, a trifling amount. Obamacare is paid for by a variety of spending cuts and tax increases (e.g. cuts to medicare, increases to capital gains and dividends rate for high earners, increased medicare tax for high earners, etc.), but it isn't paid for by the individual mandate's penalty.
Eli, the author of that piece needs to see a travel agent on the lure of Somalia
ReplyDeleteDr. Lumpus Spookytooth
ReplyDeletedoes anybody agree that there was really no reason for this case to go to the Supreme Court because of this ruling?
It is ridiculous. The government attorney argued the entire time that the mandate was not a tax. Then, the supreme court says "ho ho well it is a tax and therefore it is legal."
so because the democrats did not want to use the word "tax" because idiot polling data suggests its an unpopular word, the bill had to go to the supreme court.
I mean isn't it pretty freaking obvious if its a tax, its legal! I'm sorry but everyone was tricked, those in favor and those against. I guess those in favor got the better end because the bill passed but I think it was a big waste of time.
Harvard professor of law vs. prayer, hysteria and bully boy tactics. I agree, Lumpus, WTF could have possibly gone wrong?
ReplyDeleteBut, Jaybird, if it hadn't gone to the Supremes, then we wouldn't have had all the entertainment from "conservatives" proclaiming the end of democracy, Armageddon, etc.
ReplyDeleteThe US Kleptocratic class revealed itself to be the pathetic, morally and creatively bankrupt sycophants they are. Priceless!
Dr. Lumpus Spookytooth
ReplyDelete@cce
"Calling Obamacare in toto a "tax" is falling into the Republican message machine's trap. The penalty is expected to generate about $3 billion per year, a trifling amount. Obamacare is paid for by a variety of spending cuts and tax increases (e.g. cuts to medicare, increases to capital gains and dividends rate for high earners, increased medicare tax for high earners, etc.), but it isn't paid for by the individual mandate's penalty."
I can't believe you think that if the Dems properly called the penalty a tax it would make any difference. Do you really think tax is that much worse of a buzz word than penalty? This is the same situation as Mitt Romney raising taxes on things like driver licenses and fishing licenses. He called them "fee increases." Any money the gov't is taking from the private sector is a tax, period.
@dave benson
ReplyDeleteyes Dave, congress has limitless power to tax under article 1 section 8 of the constitution.
but the government argued that the mandate was not a tax! So not only should the case not have gone to court but I don't really see any point to have attorneys on hand to argue the case.
think about it. The government attorney is arguing the whole time that the mandate is not a tax and the argument is pretty much irrelevant to Roberts. Can you tell me why he was there or what he accomplished?
"but the government argued that the mandate was not a tax!"
ReplyDeleteIrrelevant. If the court finds it is, then it is. Or do you believe there should be a tyranny of gummint dictating the views and decisions of the courts?
"The government attorney argued the entire time that the mandate was not a tax."
ReplyDeleteWell, no. Verrilli argued it could be construed as a tax as an alternative approach, despite not being a tax for Anti-Injunction Act purposes. That's what Roberts went for.
@j bowers
ReplyDeleteokay so if the government attorney's argument was irrelevant, he did not need to be there, so we agree. And frankly hereafter cases brought to the supreme court should not be argued by attorneys because as you said, their arguments are irrelevant!
@brian
I partially agree with you on your analysis of the Verrilli argument but consider this earlier ruling by Judge Vinson on Obamacare
"Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check."
the key phrase there is "congress should not" but yes I know they can legally, but I still think its underhanded. And Brian how do you explain Carney out there still saying its not a tax? And his example of it not being a tax because you have a choice, whereas with things like social security you have no choice. But that is not a good example because people who work at a bar or a diner often times are paid under the table and do not have to pay social security.
Brian I realize some of this is nitpicky but I just think the court overreached here. The way I see it, it was up to congress to define if the mandate was a tax or penalty. By the time it was heard by the supreme court, I think their decision was established that they were not going to claim the mandate was a tax. And so I think it was the job of the court to decide based upon those grounds. This all happened because Pelosi and Obama did not want to use the word "tax".
Spunkydrawers,
ReplyDeleteIs a penalty assessed by the IRS for nonpayment of taxes itself a tax? How about the interest? Is that a tax? How about a fee for use of a National Park?
They are all assessments by the gummint. Frankly, I think your argument misses the point. The ACA was clearly legal under the ICC. Roberts chose not to uphold it under that clausefor his own activist and reactionary purposes. It was he who was disingenuous. Your quarrel is with him.
And since when have the arguments made by attorneys had any influence on the opinions of the Supremes?
Anon - Vinson has a point. OTOH, I think if ACA had said in a preamble "we aren't using our constitutional power to tax here, we're only relying on our power to regulate commerce" then the decision would've been different. AFAIK, the law itself is silent, non-binding legislative history suggested it wasn't a tax, and Roberts threaded the needle.
ReplyDeleteI'm getting a little out of my depth here though, and would have to go read the briefs to say something reasonably intelligent.
"okay so if the government attorney's argument was irrelevant, he did not need to be there, so we agree. And frankly hereafter cases brought to the supreme court should not be argued by attorneys because as you said, their arguments are irrelevant!"
ReplyDeleteNo, you're just making stuff up now. I never said the attorneys' arguments were irrelevant. But, the courts should be free to use their own knowledge of law and the constitution. They are supposed to be experts on law, right?
If you make a premature distribution from your IRA, you pay a penalty (plus all taxes owed). If you were a crazy person, you could go around calling the Employee Retirement Income Security Act (which established IRAs) "the largest tax increase in history," but no one should take it seriously. Technically, those penalties are "taxes," but there is a practical difference.
ReplyDeleteRepublicans are trying to claim that a "tax" that will apply to about 1% of the population means that Obama has broken his promise "not to raise taxes on the middle class." The "penalty" will generate about $30 billion over the next ten years. Over the same time period, about $700 billion in tax credits will be available to the middle class to pay for health insurance. Basically any family of four with incomes between $30,000 and $90,000 will qualify. Those under $30,000 will qualify for the Medicaid expansion (assuming their state doesn't opt out).