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: 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.
This is an excellent ruling. I have hopes other courts will look at this opinion when they consider similar cases. The City of Philadelphia currently bans stun guns. I am particularly pleased to hear the court looking at prevalent use in law enforcement when considering a weapon’s utility for self-defense. I think law enforcement use has to be considered when the state claims a weapon is dangerous or unusual, and therefore falls outside of Second Amendment protections.
Or not. The man largely responsible for transforming NRA into a political machine was a Border Patrol Agent. There are former law enforcement officers in high-ranking positions in NRA currently, and a recent President had a law enforcement background.
The ATF is hobbled in its effort to stop this flow. No federal statute outlaws firearms trafficking, so agents must build cases using a patchwork of often toothless laws.
Given that it starts with this patent falsehood, you know you’re going to be in for a doozy. I’m sure this will be news for criminals chilling in the federal pen right now for, well, firearms trafficking. The act of buying guns for criminals is a 10 year federal felony. The act of smuggling guns across the border is as well. Conspiracy can be used to reach people who knowingly further these activities.
Quite simply, there’s a fundamental misconception at the heart of the Fast and Furious scandal. Nobody disputes that suspected straw purchasers under surveillance by the ATF repeatedly bought guns that eventually fell into criminal hands. Issa and others charge that the ATF intentionally allowed guns to walk as an operational tactic. But five law-enforcement agents directly involved in Fast and Furious tell Fortune that the ATF had no such tactic. They insist they never purposefully allowed guns to be illegally trafficked. Just the opposite: They say they seized weapons whenever they could but were hamstrung by prosecutors and weak laws, which stymied them at every turn.
This is such a naked attempt to make this story goes away it defies credulity. The story is also a naked attempt to smear the whistleblowers in the case:
The prosecutor had told Dodson that an assistant U.S. Attorney “won’t be able to approve of letting firearms ‘walk’ in furtherance of your investigation without first briefing the U.S. Attorney and Criminal Chief.”
It was the first time Voth learned that Dodson intended to walk guns. Voth says he refused to approve the plan and instead consulted his supervisor, who asked for a proposal from Dodson in writing. Dodson then drafted one, which Voth forwarded to his supervisor, who approved it on May 28.
If Dodson was really a rouge, irresponsible agent, why wouldn’t the politically expedient thing to do be to throw those responsible under the bus, come clean to Congress, produce all the documentation, and move on. But that’s not what is happening. The Administration is hiding something.
I’m going to suggest this ad is going to make many of our opponents in the gun control movement throw up their Moons over My Hammy, which is the best reason in the known universe to go to Denny’s. 9mm is now as American as Apple Pie.
You could probably make a case, even under strict scrutiny, for an ID requirement for voting, with an aim to prevent fraud. It’s not slam-dunk, because voting is among the fundamental rights recognized by the Supreme Court. You can’t make a case for an ID requirement aimed at limiting the voting franchise. Turzai has, essentially, just admitted that Voter ID was not about prevention of fraud. I would encourage gun owners to think about this from the point of view of gun rights. If Mayor Rahm or Bloomberg suddenly admitted the purpose of their gun laws was to limit gun ownership as much as possible, rather than to prevent crime, we’d be quietly saying, “Jackpot! Keep talking buddy.” But neither Rahm nor Bloomberg are that stupid. Only Pennsylvania Republican leaders are that stupid.
The other deflection seems to be to try to tie Mike Vanderboegh around the neck of Fast and Furious and hope it sinks. The most telling example of this comes to use courtesy of Rachel Maddow (h/t Kurt Hoffman), who would have you believe that this scandal was cooked up in Mike’s tinfoil hat, and was latched on to by the Republicans in Congress. In Maddow’s world, there was never whistles blowers. There were never mainstream media outlets that found Fast and Furious to be credible. Maddow isn’t the only example of this tactic, however. It can also be found in the Baltimore Sun and the Los Angeles Times.
The idea that this whole scandal depends on the credibility of one person is, well, incredulous. There have been whistleblowers, there have been documents that point to other documents that are not in possession of Congress as they should be. It’s been no big secret that Vanderboegh and I are not exactly fond of one another, but the media really is reaching quite a bit with these ad hominem attacks on him to attempt to discredit the scandal. His role in this, of connecting whistleblowers to media contacts and Congressional officials, discredits the scandal exactly how?
These people in the media, who are ordinarily just soooo concerned about “gun violence”, seem perfectly willing to make excuses for our government actively facilitating it, rather than trying to prevent it, in the name of getting Obama re-elected.