[Washington Post] Randy Barnett : We lost on healthcare but the Constitution won

Posted by The_Elves

The legal challenge to the Affordable Care Act, which I advocated as a law professor before representing the National Federation of Independent Business as a lawyer, was about two huge things: saving the country from Obamacare and saving the Constitution for the country.

On Thursday, to my great disappointment, we lost the first point in the Supreme Court’s 5 to 4 ruling to uphold the health-care law. But to my enormous relief, we won the second. Before the decision, I figured it was all or nothing. But if I had been made to choose one over the other, I would have picked the Constitution.

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Posted June 30, 2012 at 7:29 am [Printer Friendly] [Print w/ comments]



1. Br. Michael wrote:

I can’t agree with this.  The opinion squarely holds that what can’t be done under the commerce clause can be done under the taxing power.  The opinion also says that the taxing power is unlimited.

Also note that if Obamacare was a tax it would have had to originated in the House, but it didn’t, so according to Robert’s we have a validly enacted tax that originated in the Senate contrary to the clear procedural dictates of the Constitution.

He writes:

True, Congress can now essentially tax people for not buying broccoli. But this power is not nearly as dangerous as the commerce power that was rejected. Congress can punish violations of its commerce power regulations with imprisonment. But under the tax power, the worst that can happen is a fine. And if lawmakers try similar legislation in the future, everyone will know that Congress is raising taxes and can fight back politically.

Oh that is just great.  You can’t be imprisoned, just fined (along with interest and penalties, for non payment of taxes), your property siezed and your income garnished and what everelse the IRS can do.  And I do think that you can go to jail for tax evasion.  So how is this supposed to make us feel better?  And Congress can set the tax as high as it wants to coerce compliance.

Mr. Barnett can fool himself, but this decision ends all limitations on the power of the federal government.  We now have a national government that has all the police powers that were once exclusively reserved to the states.

June 30, 9:52 am | [comment link]
2. Cennydd13 wrote:

Umm, I think Obama just lost the election.

June 30, 10:53 am | [comment link]
3. SC blu cat lady wrote:

Let’s hope so, Cennydd. I hope enough citizens realize what this means to our basic freedoms, our constitution, and vote accordingly in november.  The constitution is pretty much irrelevant to Obama’s thinking.

June 30, 11:07 am | [comment link]
4. Catholic Mom wrote:

A “tax break” for a certain kind of activity is exactly a tax *penalty* for NOT engaging in the activity, and this has been going on forever.  Suppose the law said “everybody who buys health insurance can pay 1% less federal income tax, but if you don’t buy insurance you don’t get to take the 1% off.”  It would be exactly the same thing because under the “mandate” you only pay the “penalty” if you, in fact, pay taxes, and the “penalty” is calculated just like any other tax, on the basis of your income. 

A basic economics book will tell you that there are two purposes to taxation:  1) to raise revenue and 2) to influence or coerce behavior.  You may not like it but there is absolutely new about this “tax.”  I can come up with at least 10 other examples that are functionally exactly the same. 

I was discussing this with a Romanian friend when the case was being argued before the Supreme Court and he said “why are they arguing it as being constitutional under the Commerce Clause when it’s obviously effectively a tax and legal under the power to tax?”  I said “I know it is, but in this current political environment the word “tax” is toxic (that’s another story) so they call it a “penalty” instead of a tax.”  This ruling seemed perfectly logical to me - certainly more so than than the Commerce Clause argument.

June 30, 12:00 pm | [comment link]
5. David Keller wrote:

#4—I’m not 100% sure I trust the opinions of Europeans about Americam politics, or constitutional law, especially since your freind is free of Communist oppression only becuase of the billions and billions we spent to run the USSR in the ground. In fact, maybe we should send Europe, especially eastern Europe the bill now since most Europeans seem to like Obamacare so much.  You make two other interesting points.  (1) Only those who pay income tax will pay the penalty.  Actually, I don’t think that is correct since the ACA calls for the hiring of 14,000 new IRS agents to collect the un-tax/tax. But if you are right all that means is the 49% of Americans who are currently freeloading off those of us who work will get more free stuff, I assume for continuing to vote as expected. (2) The word TAX is toxic.  That is the only thing good about Roberts “decision”.  Because Congress can no longer foist centarlized control off under the guise of the Commerece Clause, they will now have to start calling what they do what it really is—tax, spend and destroy. On another note, one thing no one is talking about is the similiarity of this decision to Dred Scott v. Sandford.  Justice Taney declared that the fugitive slave act had to be enforced by the states, but the states just ignored him. (OK, before anyone goes crazy, I understand there were other findings in Taney’s decision, but I am focusing on this one because it is parallel to Robert’s decision). In this case many states are just going to ignore the setting up of insurance pools.  There won’t be a Civil War over this decsion, but if Congress doesn’t overturn it we will be in perpetual litigation for the next 10 years.  Of course for those of you who don’t know, Obama, by Executive Order has established that he can institute martial law anywhere and any time he personally deems it necessary to enforce Federal Law.  I suppose he could re-institute reconstruction if the states don’t set up insurance combines.  Nice thought?

June 30, 1:32 pm | [comment link]
6. Catholic Mom wrote:

My friend is either right or wrong—how many billions of dllars were spent to run the USSR into the ground would not seem to really bear on the issue.  Personally, I always felt the USSR pretty much ran *itself* into the ground, but that’s a whole different debate.  Strictly speaking, however, the Romanian Revolution (and the execution of Ceausescu) occured in 1989—two years before the fall of the Soviet Union.

My guess is that SCOTUS held the “mandate” to be a tax because it is, in fact (you may check this) only paid by tax payers, it is paid as a function of their tax return, and it represents a taxable portion of their income, not a set dollar amount.  In other words, it looks like an income tax, it walks like an income tax, and it quacks like an income tax.  You have no taxable income—you don’t pay the tax. 

Let’s say the federal government would like all of us to start using natural gas to heat our houses.  Let’s say it’s not legal to mandate that everyone switch to natural gas,  but the government says that everybody who uses natural gas gets 1% off their taxable federal income next year.  What this amounts to is that if you do NOT switch to natural gas (you are completely inactive) you will pay 1% more tax than if you did.  This happens all the time.

If you reward “X” you are functionally punishing “non-X.”  For example, companies now and then try to do something like say “we’ll give a $500 bonus at the end of the year to anybody who hasn’t used up any sick days.”  Effectively—you get sick (sick enough that you can’t drag yourself into work) you lose $500.  This is so obvious that companies have stopped trying to do this sort of thing because they don’t really *want* people with yellow fever coming to work. 

The “mandate penalty” is a tax that people who buy insurance don’t have to pay and people who don’t do.  There are a ton more just like this.

June 30, 3:36 pm | [comment link]
7. Capt. Father Warren wrote:

Let’s see, SCOTUS decided that the Obamacare could not be defended as a mandate under the Commerce Clause so Justice Roberts re-wrote the law to call it a tax so it would fit under the taxing power of Congress.

One little problem with that:

Remember the Boston Tea Party of December 16, 1773? Remember what that was about? The core issue was taxation without representation.

SCOTUS today has relabled the Obamacare mandate as a tax. This is a tax, which Congress never voted on AS A TAX.

So, the largest tax every on American citizens was imposed without representation…..........gee, how about that?

June 30, 4:22 pm | [comment link]
8. Capt. Father Warren wrote:

Personally, I always felt the USSR pretty much ran *itself* into the ground

Yeah, I’m sure the millions who died under Lenin, Stalin, and the post-WWII communist dictators would vote for that also.

June 30, 4:24 pm | [comment link]
9. Br. Michael wrote:

Catholic Mom, Judge Napolitano has the answer for you:

The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law’s most fervent supporters did not make or anticipate the court’s argument in its support. Under the Constitution, a tax must originate in the House, which this law did not, and it must be applied for doing something, like earning income or purchasing tobacco or fuel, not for doing nothing. In all the history of the court, it has never held that a penalty imposed for violating a federal law was really a tax.


It’s funny how liberal/progressives never think that the power they unleash will never be used against them.

June 30, 6:46 pm | [comment link]
10. Catholic Mom wrote:

If you read the actual opinion, you’ll see how that extreme liberal/progressive Chief Justice Roberts, appointed by George Bush, demonstrates that the logic is not tortured at all.  He also explains why the question of where the bill originated is moot in this case.  As I said before, the logic is obvious—as my Romanian friend said—why aren’t they just defending this as a tax, since it obviously is?  “Even the laws most fervent supporters” did not anticipate that the court would not make this argument, because the attorneys DEFENDING the law did not make this argument.  It would be as if a judge said “I’m finding on behalf of your client, but not for the reason that YOU think I should, but for the reason *I* think I should.”    And the reason that the attorneys defending the law did not make this argument is that they were going to great lengths to deny that it *was* a tax.  Which, as the Chief Justice points out, does not mean that it isn’t.

June 30, 7:08 pm | [comment link]
11. Catholic Mom wrote:

Personally, I always felt the USSR pretty much ran *itself* into the ground

Yeah, I’m sure the millions who died under Lenin, Stalin, and the post-WWII communist dictators would vote for that also.


I’m not following your logic.  You suggested that the Soviet Union was destroyed by the billions of dollars spent by the U.S.  Now you’re suggesting it was destroyed by the milions of people it killed?  And all of this has to do with the topic of the thread how??

June 30, 7:24 pm | [comment link]
12. Br. Michael wrote:

I read the opinion, and I read his tortured logic.  The fact that he was appointed by Bush is neither here nor there.  The law was passed as not being a tax.  If the law was always a tax, then it should have originated in the House and the Supreme court should not have heard it.  It only becomes a tax when Robert’s decides to uphold it as such.

Robert’s logic is a twistification worthy of John Marshall himself.

If the law had been presented as the National Health Care Tax, levying a tax of $650 dollars per year per person to fund it, the tax being remitted if you purchase health insurance acceptable to the government it would never have passed Congress.

But liberal/progressives are happy with lies if they advance their agenda.

June 30, 8:28 pm | [comment link]
13. NoVA Scout wrote:

Are we really debating the merits of John Marshall?  I love history, but that was a while ago.

June 30, 11:10 pm | [comment link]
14. Br. Michael wrote:

Robert’s relied heavily on Marshall:

Marshall’s shadow loomed large throughout the Obamacare case. And in his opinion today, Roberts himself acknowledged that, opening his opinion with Marshall’s seminal lines from Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden.

But today’s decision connects Roberts to Marshall not because of what Roberts said, but because of what Roberts did. Roberts’s decision today echoes Marshall’s defining moment in Marbury v. Madison, in which the chief justice handed the president a nominal victory, but in so doing also confirmed the Constitution’s limits on the federal government’s power.

http://www.weeklystandard.com/blogs/marshalling-precedent-nod-predecessor-roberts-affirms-mandate_647945.html?page=1

I would also add that Obama continues to deny that this tax is a tax.

Disputing the Supreme Court’s characterization of the individual mandate in the health-care law as a tax, the White House Friday still chose to call it a “penalty” that people would be required to pay for not carrying insurance.

“It’s a penalty because you have a choice,” said White House press secretary Jay Carney. “You don’t have a choice to pay your taxes, right?”

He said consumers who can afford health insurance will have a choice to buy it, or pay the government. Payments would go to the IRS, which collects taxes.

http://www.washingtontimes.com/news/2012/jun/29/white-house-penalty-not-having-insurance/

The fact that there has been a judicial determination that Obamacare is a tax, probably ends the religious objections to the law.  The Catholic and other charities can pay their tax and let the employees purchase whatever health insurance they want.  They themselves do not have to provide any insurance.  That will be a private matter between the insured and whatever insurer the employee picks.
Yes, the price of services will go up to cover the cost of the tax, but that’s the way taxes work.

Since we no longer have a limited federal government, I can readily see how the Republicans can make this work for them.  I propose what I call a free speech tax.  The Republicans would pass a new tax on all news media (they already pay all sorts of taxes) for the purpose of insuring that news is adequately reported.  If any news article or editorial was deemed adequately reported then the news media would get a waiver or remission of all or part of their tax liability.  Note that as in Obamacare this does not infringe on anyone’s First Amendment rights because they can still print whatever stories they want, they just have to pay the tax.

Now, again as in Obamacare, the Government could grant wavers.  So just as Unions have been granted wavers and persona’s supportive of Democratic Party positions, the Republicans can grant wavers to the news media that give them favorable reporting.  Of course their might be shares of political largess, cronyism and favoritism as financial benefits are passed out, but, as we see in Ogamacare, that’s the way it goes.  Stiff your enemies and reward your friends, and even better when its all legal.

After all the Tea Party war for limited Government is over and they lost, the Republicans might as well play the new game that has been created.

Yes I can see all sorts of possibilities.

July 1, 6:24 am | [comment link]
15. Br. Michael wrote:

Oh, you all might be interested in how this tax will be collected:
http://www.foxbusiness.com/government/2012/06/29/scotus-ruling-means-bigger-more-intrusive-irs/print#ixzz1zMnVfwDy

July 1, 6:56 am | [comment link]
16. Mitchell wrote:

Thank you Catholic Mom, for pointing out the hypocrisy of the Party that repeatedly votes to give massive tax breaks to big oil thereby imposing a tax on the rest of us for not buying oil wells.  In truth there is no difference between a tax deduction and a tax.  They are two sides of the same coin.  For example the mortgage interest deduction is a tax on those who choose to rent rather than buy a house.  I.E. renters are required to pay higher taxes because they choose not to buy a house.

July 2, 5:00 pm | [comment link]
17. Capt. Father Warren wrote:

renters are required to pay higher taxes because they choose not to buy a house

We can all play [il]Logic games;

The truth is, the tax code is used to lower the taxes of those who decide to sink capital into housing stock.

No where will you see any intent of Congress to assess people more taxes for being renters.

July 2, 7:04 pm | [comment link]
18. Catholic Mom wrote:

Mitchell—that was my only point.  In response to the “you had to push a camel through the eye of a needle to see this as a tax” and “this is the end of the world because it’s never been done before” comments.    Here’s one for you Capt. Warren.  People without children pay more tax than people with children.  In fact, you are penalized under the tax code for not having children.  Of, course, it’s not set up as a penalty, but in fact it is.

July 3, 8:07 am | [comment link]
19. Capt. Father Warren wrote:

People without children pay more tax than people with children

Okay, I’ll play along.  Here’s a real shocker: people who make more money pay more tax than people who make less money.

In all seriousness: it sounds like you and Mitchell support a very conservative position called the personal flat tax; no loopholes, no deductions.  You write down your income on a postcard, multiply by the tax rate, and write a check to Uncle Sugar.  No IRS, No CPA’s [some may need a calculator, not tax deductible]; and everyone has “skin” in the game.

July 3, 9:07 am | [comment link]
20. Br. Michael wrote:

18, what do you say to Obama and the Democrats who still maintain that this is not a tax?

July 3, 12:13 pm | [comment link]
21. Mitchell wrote:

#19 I would have no problem with taxing income from all sources with no deductions, so long as the rate was fair.  I do not agree the rate should be flat.  I think some people benefit more from government more than other people and should pay a higher percentage of their income in taxes.  Also, I would want a good definition of income.  For example, I think we should get rid of the estate tax, but I think inheritance should be taxed as income to the recipient.

#20, like Roberts why do we care that both Obama and Romney say its not a tax.  It is a tax.  Those who can afford to buy insurance but choose not to (because the can go to the emergency room and be treated for free at our expense) pay a slightly higher tax.  Just like those who choose not to have children pay a slightly higher tax, and those who choose not to buy a house pay a slightly higher tax, and those who choose not to buy oil wells pay a slightly higher tax.

July 3, 6:39 pm | [comment link]
22. Catholic Mom wrote:

I’m not supporting any position at all.  I’m just saying that finding that the mandate “penalty” is a tax is no intellectual stretch at all.  It’s not even an unusual tax, although it’s packaged differently.

Re: “what do you say to Obama and the Demmocrats who still maintain that this is not a tax?”

I don’t get a chance to talk with Obama that much.  As I stated much earlier, people I’ve talked to thought it was a tax before the Supreme Court did. smile

July 3, 6:43 pm | [comment link]
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