Congress not only can tax anything that moves, it can tax anything that doesn’t move

The Supreme Court opinion on ObamaCare runs to 193 pages.  It is the size of a book, only more boring than any book anyone would ever want to read — and that is true despite the fact that Ruth Bader Ginsburg, the worst writer on the court, didn’t write it.  I’ve been making a valiant effort to read it, but because I have other things to do with my life, I abandoned the darn thing about one-third of the way through.  For now, bottom line is sufficient.  Per the Supreme Court, ObamaCare imposes a tax on people who refuse to buy a product from a third-party. An example of that includes the Affordable Care Act which forces a penalty on those who do not take part in the newly-appointed health insurance marketplaces. That imposition is consistent with Congress’s power to impose taxes.

Ed Morrissey managed to encapsulate my immediate reaction to this, frankly, bizarre outcome:

It’s an interesting argument, but one that should have Americans worried.  Basically, this is a tax that you have to pay to private companies.  For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II].  The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing.  It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.

Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

Taxes have traditionally been levied to enable the government to buy and build things.  This is the first time in history, so far as I know, that a tax is being levied as a penalty against citizens who refuse to buy products from private vendors.  Taxes normally tax activity.  Sure, you pay taxes on a product when you buy a product but those are (a) state taxes, which are a different animal from federal taxes; and (b) taxes on a voluntary transaction.  That’s the important thing.  The transaction is voluntary.  You can opt to sit it out and the government cannot reach you.  Here, though, we are being told that the government can exact an onerous tax for inactivity.

The decision constitutes a radical redefinition of what constitutes a tax.  It is exactly what opponents said it was:  the biggest tax in history and one, moreover, that Americans cannot alter their behavior to avoid.  I am therefore at a loss to figure out why Roberts signed on to this decision, let alone authored it.  It is a staggering constriction on individual freedom.  The closest analogy to this tax is the poll tax of 1380, a tax that saw one of the biggest revolts in medieval British history and one that almost toppled the monarchy.  Poll taxes are flat taxes but, more importantly, they tax someone just for being.

Okay, that’s the bad news and it’s very bad in the long-term.  There are some potential short-term benefits, although they’re only possible, not probable:

Because ObamaCare is a tax, it’s easy to repeal the tax aspects, which leaves the whole thing unfunded.  Still, unfunded doesn’t mean vanished.  All the bits and pieces, the obligations, impositions, panels, etc., live on, unless Congress can gather itself together and formally repeal the whole darn thing.

The other short-term benefit is that it might galvanize those Americans who hate ObamaCare, leading them to vote for Romney.  That’s so not a sure thing, though.  It’s a great victory for Obama, and might finally put the wind at his back.  His signature legislation is a good thing, said the United States Supreme Court.  For many Americans, that might fall into the category of “that’s all she wrote.”  The fat lady has sung.  The opera is over.  It’s time to go back home and get on with your life.  If Roberts had some strange idea that he’d help a Romney election, he was taking a mighty big gamble with the American people, their freedom, and their money.  (Speaking of money, it’s no coincidence that the market plummeted once it received word that Congress not only can tax anything that moves, it can tax anything that doesn’t move.)

I am disheartened, but disheartened is not the same as defeated.  It is now imperative that Republicans take back Congress in its entirety and win the White House.  Jim Carville and others may proclaim the Tea Party dead, but I suspect they’ll see a Zombie Tea Party taking to the streets this summer.

Others blogging:

Kim Priestap

Maggie’s Farm/Bruce Kesler

American Power

The Anchoress and The Anchoress again

The Volokh Conspiracy (was Roberts somehow forced to uphold the law?)

Jay Cost (this may harm Obama more than he thinks in the long run)

Slate (Obama wins battle; Roberts wins war)

Noisy Room


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  • Caped Crusader

    What we as conservatives can always count on without fail:

    1. That we will ALWAYS be betrayed — BY OUR OWN SIDE! and on the most nebulous facts!

    2. That liberals/socialists/progressives will NEVER vote against their patrons; and never attempt to “see the other side”  of any issue.

    3. That the conservative betrayer will not be ostracized, excoriated, flogged, or made an object of derision and revulsion in our ranks, and never allowed to be a respected member among us ever again.

    4. That the betrayal in already in place in the person of Mitt Romney who is cut entirely from RINO cloth. We can expect him to wage no battles for us or to go to the mat to get such men as Scalia and Thomas on the Supreme Court. He will betray us as sure as the sun will rise in the East.

    5. Remembering the sage words of LA coroner Dr. Henry Wong who was famous for saying, “Someding wong here”,  when the facts do not make sense. I immediately knew there was nothing but betrayal in our future when most of our candidates hailed from those conservative bastions like Massachusetts, Minnesota, and New Jersey, etc., that never went Republican during the Reagan landslides.

    6. So, fellow conservatives, do not expect anything but betrayal from the Republican Party, for that is always what they have given us, and I see no reason that there will be a change. As someone in the distant past commented, “With Eisenhower we got Earl Warren, and with Richard Nixon we got Warren Earl (Burger)”.

  • Caped Crusader

    The only reaching across the aisle I ever want to see again is to BITCH SLAP Reed, Pelosi, Schumer and their associates. Do we have ANYONE with the backbone to do this?

  • Charles Martel

    Consider me the optimistic twin who keeps frantically digging through the manure that’s covering his bedroom floor yelling, “I just know there’s a pony in here somewhere!” 
    I think that the word “tax” is going to deal a death blow to this misbegotten venture in social control. Obama has wrecked the economy, so where the hell are the bucks going to come from to pay for this incoherent mess?
    I went to my dentist this morning and we had a long talk about it. She is a hard-working woman who has spent years building and sustaining a reputable practice with a loyal clientele. She pulls in a nice yearly sum, but she is by no means one of Obama’s hated rich people. When her premiums skyrocket under the mandate/tax, she will have to pass the cost on to her clients. Yet many of her clients are paid for by insurance. Will they be able to afford the soon-to-metastasize premiums that will allow them to take out dental coverage?
    A hard downward spiral is coming here.
    As for Roberts, I cannot tell you how disillusioned I am. I thought the man was at least a semi-strict constructionist, but see now that his high position has gone to his head. He is no longer a servant but a savant. And savants always know what’s best for us. 
    The best I can hope for here is that Roberts is doing a judo move: Now that the statists have won their epic victory, let them explain both the wonders of a huge new tax in a depression economy and how Obama mysteriously moved his lips in 2008 to say that people earning under $250,000 per year would face no new taxes under his regime.

  • lee

    Alas, Caped Crusader, I fear you are right. What the #*$&% was Roberts thinking? Did he sell’his soul to Satan? Was some democrat holding his wife hostage? WHAT THE HECK IS GOING ON HERE?! This is a sad day for our Constitution… Extremely BAD precedence has now been set…

    On a not totally unrelated note….

    I myself blog occasionally, very, very occasionally, and just posted two thing–on on the Life of Julia (I know, I know, I am a bit behind on that) and one on the HHS mandate. My blog is at Comments are appreciated! And hoepfully, I will blog more regulalry…

  • Ron19

    “…we can call that the Trojan tax.”

    Since, at her Congressional hearing, she pronunced her name to rhyme with f***, how about calling it the Fluke Tax.

  • jsonnick

    Do we know for sure that the “tax” gets sent directly to insurance agencies?  If it’s an annual penalty that we’d have to pay, I’d think it would be to the IRS at tax time. 

    • Bookworm

      Jsonnick: The money is imposed on the citizen as a penalty for not having insurance. The funds go to the government, though. However, unlike ordinary taxes, which are calculated (theoretically, at least) according to the government’s needs, this one is calculated according to your failure to buy a government approved private product.

      I’ve been reading emails from friends, and I’ve included all the links they’ve sent on. Many think that Roberts wrote this opinion as a Trojan Horse. He called the largest tax in history by its name, which gives the Right a lot of election ammunition. Elections, though, are always crap shoots. Roberts may have been clever, or he may have been too clever by half.

  • Beth

    Yes, Charles, judo move indeed.  He certainly must have another agenda in mind.  Is it shining the light on ‘tax’ to make the whole plan die by the hand of the people and thus the court not be blamed?

  • jj

    Hunter Thompson was being kind when he described the supreme court as a “piss-poor bowling team from Memphis.”  I no longer care what nine retired ambulance-chasers think on any subject, but I would note that, thanks to Roberts’ jurisprudential flatulence on Monday in Arizona, and what he pulled today – this is not the same country it’s been at any time in any of our lives.  This is not the same country it was last Friday.
    And now?  On my screen, right in front of me at this very moment, the democwap party is walking out of congwess in a snit, just like Little Dickie Gephardt used to when he didn’t like the way things were shaping up, and just like democwaps in Wisconsin did when they didn’t like it.  I find it hared to bring myself to fault Holder for having contempt for congwess, either: I’m pretty goddam contemptuous of them myself.  Like, 100%.
    I don’t know what Roberts’ problem was, or is, but I don’t want what dribbles out of the son of a bitch’s mouth affecting me.  He was the leader of the Head-Up-The-Ass Gang on Monday, and now he is again today, only worse.  The most amazing part of it is that I’m not particularly amazed at all.

  • BrianE

    I would have preferred that the SC just overturned the law, but the wrath of the left would have been unleashed in a fit of rage that would have made the aftermath of Bush v Gore seem like a hootenanny.

    The ball is back in the conservative court. We have now until November to explain again why the ACA doesn’t actually do what the left’s narrative says it will, that it will raise the budget deficit in spite of the largest tax hike ever.

    With a simple majority in the Senate and a Republican president– one who has committed to repealing ACA, it does offer a window of opportunity. I’m somewhat skeptical that there are enough true conservatives left in Congress to move us away from the debt cliff we’re teetering on, but even overturning this Obomanation of a bill might give some the fortitude to tackle the real problems of unfunded entitlement liability.

    If we can’t do that, then as Robert’s reminded us, we’ll get the government we deserve.

    I fear we’ve become a nation of…shoplifters though. We rationalize how stealing a benefit at the expense of others isn’t really bad, and console our guilty conscience by reminding the one being stolen from of it’s own failures. At the end of the day, we steal it because we’ve become greedy, and we’ve convinced ourselves that it’s for the benefit of the less fortunate– because that’s what the left’s narrative has told them– when it’s about centralizing power in the hands of the technocrats and bureaucrats.

    Roberts may have been too smart by half, but it does squarely place this back in the political square. It also does set a boundary as to the use of the Commerce Clause. It may even move the outer boundary of the Commerce Clause back a few meters.

  • jj

    Hard to see where Roberts has any pretensions of cleverness in this.  Not when he could simply have gone along with the four who dissented.  And I don’t believe I’ve ever seen a dissent where the minority basically concluded that there was no pretense of constitutionality in the matter under consideration.  It boils down to: why are we even talking about this – there’s no shred of constitutionality here.  The dissent’s a far more interesting read.
    The problem, which everybody seems to be passing lightly over, is that every time the bowling team from Memphis says something, that’s precedent.  It’s there for all time.  Sure, you can roll back Obama’s abortion, make Obamacare go right away – but the precedent remains.  Ther government has now ben told it has a right to impose a tax on anything – everything.  They now have a right to tax behavior.  They can make you pay for doing something, make you pay for not doing something, make you pay just because you exist.  Make you pay, in Bookworm’s phrase, for being.
    The hell with Obamacare – that’s not the problem.  It can be repealed.  But unless some future collection of retired ambulance-chasers overturns the language of this ruling, well, we’re just a suburb of Europe.  America’s gone.

  • Ymarsakar

    The Left achieves their goals through patience, incremental progress, and staged activation of terrorism, criminal organizations, grand larceny, cons, and PR combined with psychological warfare. At the end of it all, people may never understand how it came about, but they do understand that it did come about through progress.

    20 years ago, they would have said this progress was going to stop. Yet, that has been said of the Left for 100 years. Their progress has not stopped. The progress to evil has never stopped.


  • Ymarsakar

    Civil war in the US is inevitable. Those that try to stop it by complaining about those preparing for the inferno, are ignoring the aggressors and thus enabling the aggressors to carry out that war.


  • Wolf Howling

    On the last three opinions, including Arizona and Obamacare, the left won on the vote of CJ Roberts.  He appears to be another Stevens, or he simply may not have been adequately vetted.  Bottom line, no Republican president should ever nominate a person to the Supreme Court without a long and extensive history of originalism.  Relying on “stealth” candidates on the right has been a supremely failed experiment.  There was nothing stealth about Ginsburgh, or Sotomayor or Kagan.  The right needs to grow a pair and start hunting for Scalia siblings for future nominations. 

    At any rate, this decision by Roberts is a travesty.  The mandate is not a tax, it is not designed to raise revenue.  Roberts merely substituted the taxing power for the commerce clause – and he did so without even the slightest reference to how the bill was sold to the American people.  There is nothing ‘clever’ about this – it is judicial activisim of the ilk the court has engaged in since January 1936, just now under a new Constitutional banner.  I could not be more appalled.



  • Caped Crusader

    Hunter Thompson was being kind when he described the supreme court as a “piss-poor bowling team from Memphis.” 
    JJ: Our piss poor bowling teams here in Memphis are far more honorable and trustworthy than 5 members of the SC, and on behalf of all our piss poor bowling teams, I demand an apology.

  • 94Corvette

    I was listening to Fox News this morning when the news of the SC decision came through.  As most were, I was not expecting this.
    As my wife & I discussed this decision over dinner, I remembered the Ringo Starr song, ‘It Don’t Come Easy’ and it hit me that we had been expecting to take the easy way out on this issue.  Let the SC do it, they can be the villains. 
    Let’s suppose that they had found the ACA unconstitutional and thrown it all out.  Our nation would still be faced with many issues to resolve, all of them difficult and all of them intertwined. 
    Perhaps then, though our task is going to be monumentally more difficult, the SC actually did us a favor in making us face the entirety of our problems.
    On healthcare, on welfare, on education, on immigration, on taxation and on so many other issues, we need to get back to the basics of what the government was designed to do and how they were meant to do it. 
    When I look at the history of our nation, I see a continued struggle from 1789 to the present over the role of the Federal government.  The Whiskey Rebellion, the war of Northern Aggression, the passage of the 16th and 17th Amendments, and then the Great Depression were all battles that found the Federal government becoming stronger at the expense of the states.  From the late 19th century on, we have been letting the government assume the responsibilities that families, churches, communities and states had reserved for them either by our culture or through the Bill of Rights.  The Great Depression found the Federal government becoming our ‘nanny’ and then LBJ’s Great Society built on this.  It used to be scandalous if a man didn’t provide for his children.  Now, the government does (and through their misguided ‘good intentions’, they have destroyed the traditional family).  When someone lost a job, their family helped get them back to their feet with the understanding that they would find work ASAP and the if help was needed for another family member, they would contribute.  Churches helped the poor and when a disaster struck a community, their neighbors and their state stepped up to help.  (An aside, thirty years ago when I was working during summer break of college as a teacher’s aide in Headstart, we had a student who wasn’t eating his cookie.  When I asked him why, he told me that his teeth hurt.  His dad was a sharecropper who was an honest man but because his dad had died when he was in school, he had been forced to drop out and take care of his family.  They didn’t make much and what little they had could not pay dentist expenses.  Our nurse called a local dentist who donated the care this boy needed.  In less than a week, he was enjoying cookies.  That is how communities used to operate.)  The recipients of assistance didn’t take it for granted, they were grateful (though somewhat uncomfortable at having to ask for help) and did not regard it as an entitlement. 
    We will not get back to that point, people are too accustomed to mooching but we can try.

  • jsonnick

    Thanks for the note, Bookworm.  I thought that would be the case and it’s interesting that the rationale of the mandate being a “tax” is very likely going to be a part of what causes the entire system implode.  My understanding is that another part of the law says insurance companies cannot deny anyone coverage, even where the person has a pre-existing condition.  This means people who don’t want to pay for insurance can simply compare amount of the tax with the cost of insurance and pay the cheaper one.  If they end up getting hit by a bus they can get insurance at that point and be fully covered.  That scenario can only lead to a complete healthcare system melt-down or single-payer.

    I read a lot of Roberts’ opinion yesterday (haven’t had time for the concurrence or dissent) and while I somewhat wish he’d voted to make the dissent the majority opinion, I think he was trying to respect the idea of judicial minimalism, which also accounts for some of what he wrote in the Arizona opinion.  In addition to being a judicial conservative he’s the Chief Justice and in that role he has some responsibility to take the long view and consider the reputation of the Court itself.  That is not, of course, an excuse for writing a knowingly-bad decision.  With the specific limits he put on the Commerce Clause and the Spending Power, though, I think he was doing his best to thread the needle between respect for the work of the two elected branches of the federal government while drawing a line in the sand.  

    Moreover, while I wish the law had not been passed, it is, I think, uncontroversial to say that Congress clearly has the authority to enact single payer health care.  All they’d have to do is pass a one-sentence law saying “All citizens of the United States henceforth are eligible for full Medicare benefits.”  There is no federal court that would strike that down as unconstitutional.  It is also uncontroversial to say that Obamacare, as awful as it is, stops short of that mark.  I think this is important because if it be the case that Congress generally has the power to effect legislation with a particular goal, the Court is generally deferential to Congress in the way it goes about doing it.  Again, I’m not saying that I think the decision was necessarily correct, but as someone who is concerned about the institutional integrity of the Court, it is understandable to me that Roberts would be inclined to let the legislation stand if he were able to find a way to let it.

    In his opinion, Roberts said a lot of things specifically about this law that, when taken in toto, draw a pretty clear picture of an unsustainable system that cannot continue to exist as designed.  It seems to me that from a strictly political perspective, the following has happened:
      — The Court has let stand a law that Congress passed and the President signed and that the majority of Americans oppose
      — The fact that the law stands will both squelch any Democratic party anti-court rhetoric (and therefore minimize fundraising and motivation to get to the polls) and galvanize the tea party
      —  The Court has clearly said that the Commerce Clause does not allow you to compel commercial activity
      — The law can now be repealed with 51 votes in the Senate and can’t be filibustered because it was passed as a budget item and is now recognized as a tax (holy shooting yourself in the foot for short-term gain, Mme. ex-Speaker and Sen. Reid) 

    I don’t like to impute motives on people (especially people I don’t know who are immeasurably more qualified to do what they’re doing than I am) but it would not surprise me to learn that the Chief Justice is currently sitting on his couch, enjoying a nice martini with a Cheshire Cat grin on his face because he’s helped the court by keeping it out of the partisan spotlight of the campaign, he’s started to turn back the Commerce Clause and the law he’s upheld is not long for this world regardless.

  • jj

    Why do we keep trying to find excuses for Roberts?

  • Mike Devx

    “His [Obama’s] signature legislation is a good thing, said the United States Supreme Court.”

    No, the Court has said it is *legal*; it has not said it is *good*.  I think jsonnick is right that the Roberts Court is about minimalism, not conservatism.  I think Roberts main long term goal is to curb and destroy abuse of the Commerce Clause.  On issues not directly related to the Commerce Clause, we will often be surprised.  Sometimes pleasantly so, as in Heller, sometimes horrified, as in this ObamaCare decision.

    I guess the proper phrasing I would put on it is, if it’s not directly related to the Commerce Clause, Roberts will tend to try to leave the conflict in the political sphere.  That’s not the same as saying he wants to leave it in the voters’ hands.  It’s a fine line, but I think his position is that he’s GOING to leave it in the voters hands.  Because he seeks a minimalist court in most positions except his sigunature one: He wants his Court to be remembered as the one that set all relevant precedent on the Commerce Clause, and in the direction of restricting it, drawing it back to its original purposes. 


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