Thursday, June 28, 2012

Supreme Court Does the Unexpected











  1. If the "mandate" had been worded so that instead of requiring a person to enter into a contract or pay a tax, it had required a person to either pay a tax for health care, or prove he had made arrangements to pay for X level of health care, and then defined such proof as "show you have the money or show you have insurance," would that have avoided the problems you mention?

  2. My initial reaction is (a not unanticipated) dismay. Albeit that is based on only the most preliminary understanding of the actual nature of the decision, based on one report in the MSM. My initial response to the argument that the fine is a "tax" is that such an interpretation means anything the Congress and President thinks should be mandatory is then Constitutional and we can all be coerced into buying it or be bankrupted. There is only one word I am aware of for such a system—tyranny!

    The U.S. has now been an independent nation for almost 236 years. And now, if Aristotle et alii were correct we can see the unmistakable advance of ochlocracy against democracy. The signs have been there for almost half of those 236 years, but the rate of advance of the former seems to have accelerated more and more in the past half century.

    And, if I am not incorrect, given the Chief Justice's complicity in this abomination, so much for the argument that we must vote for an establishment Republican in order to have maintain a Supreme Court that will stand guard on our liberties.

    The U.S. has been, in many ways, a hopeful experiment, but there is now not insubstantial reason to believe that the results will not much longer live up to their promise.

    Pax et bonum,
    Keith Töpfer

  3. VB, yes, that version would have avoided the compulsory contract problem. Good suggestion -- pass it to your Congressman/woman.

    MA, the Court (that is, the CJ) makes an interesting distinction about when a law is an exercise of the taxing power for purposes of the constitution, and when it is a "tax" for purposes of the Anti-Injunction Act. In short, if Congress labels it a "tax", then it is a tax for purposes of the AIA. But if it calls it something else (e.g., a "penalty"), then it is not subject to the AIA, but it still may be regarded as a tax for constitutional purposes. See this article for more explanation.

    We are headed for uncharted waters, at least as far as this country is concerned. The masses have gotten what they wanted, but the question remains: how can we all afford it?

  4. Mr. Haley,

    Thank you for your response. I agree with your "uncharted waters" statement. To your comment that "the masses have gotten what they wanted," I would offer two amendments, to wit:

    • The masses believe they have gotten what they wanted. But, with so many details yet to be determined, especially those that will be determined by economic realities, that which has been promised may not be that which is delivered.

    • The masses will be revolting, all that remains to be seen is which sense of "revolting" will dominate.

    Pax et bonum,
    Keith Töpfer

  5. I am curious about one aspect of this decision. If the "law" was enacted as an authorization under the Commerce clause of the Constitution, why did the SCOTUS not offer a judgment on this ground alone (striking the law down) rather than offering a work around (a tax definition)?

    It seems to me, a lay person, it was the responsibility of the law's authors to cite the authority and not that of the court.

    If Roberts' position offers some advantage to the conservative cause, what might that be?

    Daniel (aka Fisherman)

  6. Daniel, Chief Justice Roberts answered your question at p. 32 of his opinion (bottom), as follows: "As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below."

    Courts are required to try to find, if a reasonable one exists, an interpretation of a statute that will keep it from being found unconstitutional. Thus the party defending a statute will often cite more than one ground for its constitutionality, as did the Solicitor General in this case.

    The Court simply rejected his Commerce Clause ground, but accepted his argument that the mandate was a valid exercise of Congress' power to tax.

    The opinion of the Chief Justice does offer a number of victories to conservatives -- see the discussion here.