Millions of words have been penned or typed today regarding the SCOTUS decision on
Obamacare ObamaTAX. What follows are my thoughts after reading every word of Chief Justice Roberts’ opinion and the first several pages of Justice Kennedy’s dissent.
Quoted sections are excerpted from a pdf of the decision, available online at: SupremeCourt.gov. Page number references are page numbers as rendered from this document. Some of these comments are thoughts that occured during my reading and are specifically related to the quoted section that precedes them. A more comprehensive opinion follows near the end.
p.41 (Roberts’ Opinion) The whole point of the shared responsibility payment is that it is triggered by specific circumstances—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…
— C.J. Roberts
It is a direct tax on property, unless personal income no longer qualifies as property. Wait. Never mind. The XVI Amendment to the U.S. Constitution already assigns ownership of income to the federal government first.
p.41 (Roberts’ Opinion) … Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.
Perhaps, Mr. Chief Justice, you should have pursued this troubling aspect a bit further. Congress can now pass virtually any law they can think of as long as they can figure out how to set it up as a tax. Brilliant!
“Not overly harmful” … There are a couple of instances where Roberts uses this phrase or something similar. I apologize, I do not have the page references available at the moment. However, the Chief Justice does not possess the omniscience to make this statement. He has no way of knowing that an additional $695/yr (minimum) is not a hardship or will not be a hardship in the future. For some, that is a month’s rent. It could amount to 2 or 3 car payments that would constitute grounds for repossession. There are any number of possibilities that could arrive and thus make the additional tax burden of $700 or more overly harmful.
p.42 (Roberts’ Opinion) Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new.
But, sir, Congress did not use, nor reference, nor intimate the application of the Taxing Clause for this legislation. In fact, they, and the Former President Obama went out of their way to insist that the mandate was not a tax. The language of the Affordable Care Act specifically uses the word ‘penalty’ in all instances when referring to non-compliance. It is absurd to think that Congress meant to write the word ‘tax’ and somehow ended up misspelling it to read ‘penalty’ in every instance.
p.42 (Roberts’ Opinion) Tax incentives already promote … purchasing homes and professional educations …
These sentiments are convoluted and disingenuous. The purchase of a home or professional education are clearly choices freely made and transactions willingly entered into by both parties, both the purchaser and the seller. A tax for not purchasing health care is not remotely related to either of those provided illustrations for upholding the mandate.
p.42 (Roberts’ Opinion) We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” (quotes in the original)
And thus they should have found this, but Roberts declines that option in his following line, saying it’s not necessary to determine at this point where that demarcation between tax and regulation with ensuing punishment resides.
p.57 (Roberts’ Opinion) … that question, “[w]e seek to determine what Congress would have intended in light of the Court’s constitutional
holding.” (quotes in original)
In speaking to the Medicaid expansion, Roberts leans on ‘intent’ to address the severability aspect of this section. Obviously, he says, Congress would have wanted the balance of the law to stand if this section were struck down. So, he takes Congress at their word here, trusting that they would not have bothered to undertake such a massive rewriting of laws if they didn’t expect all or most of it to pass.
Yet, when dealing with the actual words placed in the text of the law, the Chief Justice ignores those words and the intent of those words as they are written and disregards the strong empirical evidence of Congress’s intent to not have the individual mandate be a tax. In fact, he REVERSES (or at the very least overrides) the intent of Congress and imposes a foreign intent, not contained in the written words and the many spoken references to this law by members of that same Congress he purports to be able to determine intent from.
(more follows in part ii)