Breaking: Obamacare Survives... As a Tax?! (Update x3: Decision Embedded, Analyzed, and Geraghty Weighs in on the Need for a Filibuster-Proof Majority)

No opinion yet.  Will update when there is one.  Update: here it is.  The Supreme Court's servers are probably going to crash, so I uploaded a copy of it to Scribd.


Obamacare Decision

I find that to be a highly dubious approach to things.  I wrote about this idea back in my Patterico days, here.

As I tweeted just a while ago, it looks like if you want to get rid of Obamacare, you need to get rid of Obama... and just enough Democrats to survive a filibuster.

And let me say something else.  This demonstrates that we cannot simply outsource fidelity to the Constitution to any one branch.  The Supreme Court has allowed flagrantly unconstitutional laws to stand before.  Under the Alien and Sedition Acts, people were being imprisoned for criticizing the President—for engaging in protected speech.  Truth was not even allowed as a defense.  (Gee, that sounds oddly familiar...)

And then what happened?  We the people rose up and threw those bastards out.  They called it the Revolution of 1800, one of several claimed peaceful “revolutions” at the ballot box.  We the people are the ultimate guardians of our Constitution.

So yes, it is a result I am not happy with.  But if you don’t like it, we need to get Obama out of office.  It’s that simple.

Update: Patterico has video of Obama denying the mandate is a tax.  This is a great day for politicians who want to have their "I didn't raise taxes" cake, and eat it too.  Obama can pretend he didn't raise taxes because it is not called a tax, but gets to keep Obamacare as a law on the taxing power.

Update (III): Jim Geraghty outlines what it takes to undo this.  I see that Romney can to much by himself, and even more with a majority in Congress, but can he get rid of all of it without a filibuster?  Its unclear.

Update(II): Some quick analysis of the opinion by Roberts...

First, Justice Roberts is writing in an uncommonly clear style.  Whatever you think of the content, he has a gift for writing it in a way that is just clear and I suspect accessible by ordinary people.

Second, the opinion would be great on Commerce power if it wasn’t completely undercut on the issue of Taxation power.  And indeed it is funny because there is an interesting echo between how Roberts rejected the argument that the word “regulate” includes the concept of creation—thus the power to regulate commerce is the power to create it:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to “coin Money,” in addition to the power to “regulate the Value thereof.” Id., cl. 5. And it gives Congress the power  to “raise and support Armies” and to “provide and maintain a Navy,” in addition to the power to “make Rules for the Government and Regulation of the land and naval Forces.” Id., cls. 12–14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary. The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.

This is actually very similar to something I wrote on the exact same subject in my Patterico days:

It is presumed in the construction of language in the Constitution (or any statute) that the same word has the same meaning in all contexts.  So let me call your attention to Article I, Section 8, Paragraph 14:

The Congress shall have Power… [t]o make Rules for the Government and Regulation of the land and naval Forces;

Now at first glance it seems reasonable to interpret the term “regulation” as allowing for creation.  Certainly Congress has the right to create a military, right?  But here’s the thing; in the two paragraphs before it, the Constitution makes specific reference to that power:

The Congress shall have Power… [t]o raise and support Armies; … [t]o provide and maintain a Navy;

So if the word “regulate” meant to “create” then there would be no need to specify the right to raise an army or provide a navy.  It would be implicit in the term “regulation;” indicating that the founders did not believe that the word “regulate” included creation.  And as I said before, the courts avoid interpreting a provision of the constitution or a statute in a way that renders other parts superfluous or unnecessary. Besides, if regulate meant to create, then what exactly is a well-regulated militia?

So apparently, he is a big fan of mine!  (Or more like it was a really obvious refutation of this argument that more than one person thought of.)

Third, no they can’t force you to eat broccoli.  From the opinion:

To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. See, e.g., Dept. of Agriculture and Dept. of Health and Human Services, Dietary Guidelines for Americans 1 (2010). The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. See, e.g., Finkelstein, Trogdon, Cohen, & Dietz, Annual Medical Spending Attributable to Obesity: Payer- and Service-Specific Estimates, 28 Health Affairs Affairsw822 (2009) (detailing the “undeniable link between ris­ing rates of obesity and rising medical spending,” and estimating that “the annual medical burden of obesity has risen to almost 10 percent of all medical spending and could amount to $147 billion per year in 2008”). Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. See Center for Applied Ethics, Voluntary Health Risks: Who Should Pay?, 6 Issues in Ethics 6 (1993) (not­ing “overwhelming evidence that individuals with unhealthy habits pay only a fraction of the costs associated with their behaviors; most of the expense is borne by the rest of society in the form of higher insurance premiums, government expenditures for health care, and disability benefits”). Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. See Dietary Guidelines, supra, at 19 (“Improved nutrition, appropriate eating behaviors, and increased physical activity have tre­mendous potential to . . . reduce health care costs”).

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

That is not the country the Framers of our Constitution envisioned.

And he goes on to explain that no, you just can’t do that.

As for the argument that the Necessary and Proper Clause allows for it, Roberts disposes of by saying that you cannot interpret the Necessary and Proper Clause so that it obliterates an important Constitutional limit.

As for the issue of whether it is a tax, they decided to presume in favor of an interpretation that makes this constitutional.  In doing so, Roberts rejects the idea that what Congress calls it controls it; except he accepted that argument in regards to the Anti-Injunction act:

The joint dissenters argue that we cannot uphold§5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels.

So this is a great victory for politicians who want to have their cake and eat it too.  As Patterico pointed out this morning, Obama himself said it was not a tax.  He shouldn’t be allowed to win on an interpretation of his law that he himself rejected.

And I found this interesting, too: Roberts explains why he is even bothering to talk about commerce power if taxation power is sufficient to uphold it:

JUSTICE GINSBURG questions the necessity of rejectingthe Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a com­mand if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a stat­ute to save it, if fairly possible, that §5000A can be inter­preted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

Well, that explains why Roberts had to decide first whether it is valid under the Commerce Clause, but why did he have to write about it?

Now it might seem a little hollow for Roberts to have written a wonderful opinion on the limits of the Commerce Clause power, only to then declare it perfectly Constitutionally kosher under the Sixteenth Amendment.  Well, to be fair to Roberts, there is a significant difference between the two powers.

Because it was upheld under the Taxation power, Congress can pass a law that says, “one must buy broccoli or pay a fine.”

But if it was upheld under the Commerce Power, Congress could have passed a law that said, “one must buy broccoli, or go to prison.”

I still think the dissenters are right, that this is not a tax but a penalty, that is not a difference to be laughed off.

---------------------------------------

Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even been within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  As you will see by the time I am done telling my story that this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.

---------------------------------------

My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sound fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to donate and help my wife and I in this time of need, please go to this donation page or use the PayPal buttons on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.