search
top

Health Care Upheld

Deviating from our usual topic a bit, the mandate survives, apparently as a legitimate exercise of Congress’s power to weigh and levy taxes. The federal government’s power to terminate state medicaid funds is limited. I haven not yet read the opinion. But it looks like Chief Justice Roberts wasn’t convinced. From the opinion:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

That’s good, at least. I’m really curious as to Justice Robert’s logic as to how the health care mandate is not a direct tax. Orin Kerr mentions “That’s kind of funny, given that it’s the one argument we didn’t focus on much.” Probably because it was the most patently ridiculous argument, since direct taxes are forbidden by the constitution, the health care mandate is decidedly, as a tax, direct. The only direct tax the constitution allows is income taxes, and this is not an income tax. So what’s the justification?

UPDATE: Here’s the section on the logic from direct taxes:

Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution. Plaintiffs argue that the shared responsibility payment does not do so, citing Article I, §9, clause 4. That clause provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” This requirement means that any “direct Tax” must be apportioned so that each State pays in proportion to its population. According to the plaintiffs, if the individual mandate imposes a tax, it is a direct tax, and it is unconstitutional because Congress made no effort to apportion it among the States.

Even when the Direct Tax Clause was written it was unclear what else, other than a capitation (also known as a “head tax” or a “poll tax”), might be a direct tax. See Springer v. United States, 102 U. S. 586, 596–598 (1881). Soon after the framing, Congress passed a tax on owner- ship of carriages, over James Madison’s objection that it was an unapportioned direct tax. Id., at 597. This Court upheld the tax, in part reasoning that apportioning such a tax would make little sense, because it would have re- quired taxing carriage owners at dramatically different rates depending on how many carriages were in their home State. See Hylton v. United States, 3 Dall. 171, 174 (1796) (opinion of Chase, J.). The Court was unanimous, and those Justices who wrote opinions either directly asserted or strongly suggested that only two forms of taxation were direct: capitations and land taxes. See id., at 175; id., at 177 (opinion of Paterson, J.); id., at 183 (opinion of Iredell, J.).

That narrow view of what a direct tax might be per- sisted for a century. In 1880, for example, we explained that “direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate.” Springer, supra, at 602. In 1895, we expanded our interpretation to include taxes on personal property and income from personal property, in the course of striking down aspects of the federal income tax. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 618 (1895). That result was overturned by the Sixteenth Amendment, although we continued to consider taxes on personal property to be direct taxes. See Eisner v. Macomber, 252 U. S. 189, 218–219 (1920).

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific cir- cumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

So Robert’s seems to be siding here with a view, that has some historical root, that the prohibition on direct taxes should be interpreted rather narrowly. You know, sometimes I wish I had a time machine, and could go back in time and shout “You guys need to be f**king specific when you write this stuff!”

Maybe we should have spent more time in the confirmation hearings probing the Chief Justice’s views on direct taxes.

UPDATE: More from David Bernstein on the perils of shortsightedness: “As I noted several times on this blog, the Bush Administration had one primary criterion for its judicial nominees: whether a nominee was likely to vote in favor of the government in War on Terror cases.”

UPDATE: I do have to say, of all the ways the mandate could have been upheld, this is probably the least damaging way. It would have been awful to have this be a Commerce Clause decision, or a Necessary and Proper decision. Robert’s opinion still seems to indicate there are limits to how far Congress can take this new taxing power he is giving them.

35 Responses to “Health Care Upheld”

  1. Countertop says:

    Well, thank god 100% of Democrats have warned us to simply ignore the extremesit uninformed actions of the non judicial right wing partisan hacks on the Supreme Court. I was afraid I was going to have to respect the Courts opinion. But knowing that Nancy Pelosi has my back if I refuse to comply with Obamacare – because the Supreme Court isn’t the proper body to make a judgment and its judgement is morally and legally invalid – I can breath a sigh of relief.

  2. Bitter says:

    One of our state lawmakers is already making the point that this decision means taxpayers are on the hook for an additional $2 billion in the state budget next year. That’s more than a 7% increase over this year’s budget. This is not a minor impact.

  3. Divemedic says:

    I can’t afford insurance, and I am not eligible for free handouts from the government. What am I supposed to do?

    • Alpheus says:

      Suck it up, and pay your fines. I’ve been listening to the radio today, and as I did so, I heard a sound clip from a prominent politician, when he was running for office, saying why an insurance mandate is going to be bad, because someone who can’t afford insurance will be fined, and will still have no insurance.

      If only that wise candidate was in office! He would have prevented this from happening!

      Oh, wait. That prominent politician was Barak Obama.

      As for myself, I purchase insurance privately, and not through an employer; it was difficult to find one that would cover our family, and we were only able to do it by accepting very high deductibles on conditions that my wife has, that made her uninsurable by other insurance companies. I have no idea what will happen, if this plan found wanting by Federal Bureaucrats. We wouldn’t be able to afford more expensive insurance…and we might not be approved for Gummint stuff, either! (We’d like to avoid that Gummint stuff anyway, but still…)

      Thus, we might be sucking it up and paying our fines, too. Only time will tell.

      Good Luck! And may God have mercy on our souls!

    • PT says:

      Looks like somebody’s tax rate is going up.

      Here’s the catch, even if you do buy the $100/month catastrophic coverage, its not a qualifying plan. So you’ll be treated as if you didn’t buy insurance at all.

  4. Patrick H says:

    My favorite comment on this so far:

    But this means that the upcoming election is more important than ever. We have to vote for Romney because he’ll appoint good justices like Roberts! Then the Court will undo Obamacare, overturn Roe v. Wade, and rotate the tires on my car!

    A sad day, but I figured this would happen. I don’t get the tax argument- no where in history is NOT doing something a tax. That’s a penalty. Something totally different.

    • Alpheus says:

      I’m still holding my nose and voting for Romney, because I’d like to see Liberty-Loving Justices on the Supreme Court. The Republican Party is currently the only source that provides those justices.

      Sadly, the Republican Party is largely a Statist party, and often appoints justices that don’t support Liberty. It makes me wonder: why, oh why, can’t we ever get a surprise justice from the Democrat party?!?

      It probably has something to do with Republicans being too trusting (among other reasons).

  5. Patrick H says:

    By the way, I agree with you Sebastian that this does help Romney’s chances now. There will be a lot of people pissed off and motivated to vote.

  6. aubrey says:

    it doesn’t seem like a “direct tax” so its probably kosher

  7. Ian Argent says:

    Roberts the incrementalist strikes again. In the end, though, he’s sort of right, this is and was a political question. Both sides have gotten used to being able to call upon the SCOTUS to reverse political decisions going against them. I was surprised this wasn’t 6-3, though.

  8. Bubblehead Les says:

    Hmmm. Now what if Boehner tells the House, “Okay, according to SCOTUS, we have to have a Tax. Now charge everyone $1.00, and take the rest out of the HHS Budget.”

    Sounds “Constitutional” to me.

  9. Spade says:

    So does this mean we can now get a law passed requiring everybody to own an AR-15 or they have to pay a tax?

    • Patrick says:

      Pretty much.

    • Nathaniel says:

      …and it always could, too. That’s what Roberts’ opinion has underscored here.

    • Alpheus says:

      Technically, Congress has this power because of the Second Amendment, and the ability to organize the militia. Now that this is passed, however, Congress can pass this law, just because it feels like it!

  10. denton says:

    The federal government can essentially fine/tax me for doing anything that displeases it, or for failing to do anything that pleases it. So tell me again the part about enumerated and limited powers?

    • Patrick says:

      Yes, unless that tax is specifically against an enumerated and fundamental right. Newspapers cannot be taxed in special form (though sales taxes that apply to all things are allowed), and a special tax against news outlets we don’t like cannot be done.

      But telling you that you must pay a tax penalty for not buying a private product? Apparently.

      This decision is a short-cut to the one I have always felt would pass muster: a tax and a tax-credit for those who purchase insurance. There are already accommodations in tax code for those who get insurance from their employer (you don’t pay income taxes on this benefit), so it’s not a new thing.

      But basically it is important to understand that Congress’s power to tax is almost universal and unlimited. The only thing stopping them is elections. This decision just makes that clear in ways that I think 90% of the people never quite realized.

  11. Wow. Americans will have to vote in November like it really matters. And Roberts’ decision made that point.

  12. Patrick says:

    I just wanted to see the Commerce Clause and Necc & Proper smackdown happen. It did.

    It’s been clear all along Congress could tax this into place. They just tried to get cute and avoid calling it a tax. Apparently they had some damn smart kids writing this part of the law, and they left just enough bread crumbs for this to happen.

    People will argue with Robert’s logic, but the simple fact is that if it’s a tax, then it was going to pass muster.

    I am happy to see some ground held back. We didn’t gain anything, but then again neither did the Commerce Clause.

  13. Harold says:

    Circling back to our special interest, with whom will this increase and decrease their view of the legitimacy of the Supremes, and what does that mean for future 2nd Amendment based cases?

    At least the Zeitgeist is much more pro-gun that it is pro-Obamacare/the Congress can do any damn thing it wants. So Roberts’ caving is less likely, until we get to icky machine guns at minimum.

  14. Archer says:

    Stop me if I’m wrong, but this part gives me a little shred of hope:

    A majority of the Fourth Circuit panel reasoned that the individual mandate’s penalty is a tax within the meaning of the Anti-Injunction Act, because it is a financial assessment collected by the IRS through the normal means of taxation. The majority therefore determined that the plaintiffs could not challenge the individual mandate until after they paid the penalty.

    Might this mean the individual mandate could be challenged again in 2014, after people have had to pay the penalty/tax? My interpretation is that he opted not to rule on the AIA’s effect, because the AIA does not apply yet.

  15. Spade says:

    It was pointed out somewhere else that going by this opinion the Feds can’t ban abortion because of Roe v Wade, but they could tax the everloving hell out of it.

    • Sebastian says:

      If one were to be true to precedent, that would be unconstitutional, because you can’t discourage a constitutional right by taxing it. A tax on abortion services would also not be a direct tax, but rather an excise tax.

  16. PT says:

    So what happens if the tax is so excessive I can’t pay it?

    What if the “tax” for not having health insurance is $500,000?

  17. Mike Gordon says:

    I was under the impression that one reason the Obama Administration didn’t take the “it’s a tax” approach to defending the law was because the bill originated in the Senate and not the House contrary to the Constitution. Didn’t anyone bring this up during the arguments or was it at least mentioned in any briefs

    • Harold says:

      That minor detail in the Constitution is effectively dead: as in this case, the Senate just takes a House originated bill, removes its contents and replaces it with its own. Some bills end up with very strange names due to this, but here they started with HR 3590, a Charlie Rangel bill with an on-topic name. In fact, looking at the legislative history I think it was crafted for exactly this, introduced in the House 9/17/2009, in the Senate 10/9/2009.

      It’s been commented elsewhere today that you can’t particularly say we live in a constitutional republic anymore. A republic, sure, but in terms of constitutional restraints much more like the U.K. than the US before, say, FDR forced The switch in time that saved nine.

  18. Brad says:

    I don’t know why that quote is your favorite, because the sentiment is stupid.

    Yes we do need more Justices like Roberts, despite how Roberts decided on Obamacare. It was Roberts who helped give us a newly empowered 2nd Amendment. If Kerry had been President and appointed a typical liberal like Kagan or Sotomayor instead of Roberts, the 2nd Amendment would be dead today. DC would have won the case of DC v Heller in 2008!

    No, SCOTUS will not address Obamacare again, it’s a straw-man argument to claim someone says we need a future SCOTUS to stop Obamcare. Everyone knows the only way now to stop Obamacare is by legislative repeal, which requires holding the House the Senate and the Presidency.

    • Sebastian says:

      The Commerce Clause would also have been effectively read out of the Constitution, and Congress given unlimited power. Roberts, unfortunately, gave them a broad new taxing power than previously didn’t exist, but hopefully we can undo that damage.

      • Harold says:

        You mean further read out of the Constitution. Roberts did get a majority to say that economic inactivity can’t be punished, except of course through a “voluntary” tax which will get you thrown in jail if you don’t pay.

        That’s something better than we had before, but it still allows for a lot of mischief. But we’ve been living with that since at least 1933 when a Federal “tax” of $3,500 in 2012 dollars on machine gun transfers was enacted.

  19. Brad says:

    Well SCOTUS just pulled the rug out from under those people who hoped Romney could skate by the Obamacare issue. Now that we are facing the steaming pile of the reality of Obamacare and know it must be repealed rather than overturned, we must also acknowledge the fundamental weakness of Romney as a presidental candidate.

    Romney has zero credibility running against Obamacare, because of his own history with Romneycare. If he does manage to win election I have no faith Romney will actually repeal Obamacare. A George H.W. Bush style read-my-lips betrayal wouldn’t surprise me at all.

    Thanks a lot establishment Republicans for foisting Romney on the party. I’m praying like crazy that Romney can still manage to beat Obama, but if Romney loses I know who I will blame, those idiots who repeated the mistake of thinking the most moderate candidate was the most electable.

    Do you think those party bosses might learn their lesson after two losses in a row? I’m not counting on it.

    • Sebastian says:

      Romney’s record with Massachusetts is a problem, but I think if he makes overturning Obamacare part of his campaign people will overlook it. I’ll take the guy promising to repeal it over the guy promising to fight repeal. The stakes are too high for Romney to weasel out of that promise.

      • Harold says:

        Actually, it’s been part of his campaign for a long time. He’s been saying the very first thing he’ll do when he’s in office is to grant all 50 states waivers, and checking his website he’s also saying he’ll work for full repeal.

        I too share serious reservations about his behavior once in office, but if he reneges on this promise his presidency will effectively be over before it really begins. Even G. H. W. Bush took a little while to go from “Read my lips” in 1988 to “Read my hips” in October 1990.

    • Harold says:

      The concluding paragraph:

      The reality, of course, is that Roberts has permitted the implementation of a conservative health-care regime, energized the Republican base, preserved his ability to vote against liberal congressional measures as violating the commerce clause and aggrandized himself as an apolitical Chief Justice.

      I call BS to every point of the above, except for “energized the Republican base” (I myself wasn’t planning on making a contribution to Romney for various reasons, but made a substantial one yesterday as money was flooding in to underline that he’d better keep his promises here).

      Otherwise, Heritage Foundation != “conservative”. To look no further than our own special interest, those of us with long memories and who were in the fight back then remember that it was a Heritage Foundation guy who encouraged G. H. W. Bush to do his assault rifle bans, which we live with to this day.

      The other two points are obvious garbage: Roberts gives every appearance of folding under partisan political pressure—more details if you want, but you can start with the textual evidence and how it’s a tax to let it pass Constitutional muster but not one WRT to the Anti-Injunction Act, which enjoins litigation until 2014, plus see this great screed by ex-Federal prosecutor Andrew McCarthy ObamaCare Ruling: Pure Fraud and No Due Process—and that will only encourage future pressure on him to cave to Federal arrogations of un-Constitutional power.

top