Obamacare upheld — as the tax Obama promised us it wasn’t

UPDATE at 11:59 a.m.: The president is expected to comment on the ruling at 12:15 p.m. One wonders how his remarks will square with White House talking points from the Obamacare debate, such as:

What President Obama is proposing is not a tax, but a requirement to comply with the law.

and

People are required to obey the speed limit and have to pay a penalty if they get caught speeding? Does anyone consider that a tax?

and

People are required to have car insurance and can be fined if they are caught without it. Is that a tax?

In one of the court’s other decisions today, United States v. Alvarez, the justices upheld American’s First Amendment rights to lie about receiving military honors. In the Obamacare ruling, the majority upheld politicians’ First Amendment rights to lie about their policies. Not that anyone thought that kind of lying would ever stop.

UPDATE at 11:42 a.m.: At first blush, any cheers for the court’s declining to uphold Obamacare based on the Commerce Clause should not be too loud.

Writing for the majority, Roberts says, among other things:

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures — joined with the similar failures of others — can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.

Sounds pretty strong, huh? Maybe even strong enough to place a firm limit on congressional powers under the Commerce Clause?

Maybe so. My guess, however, is that Congress will simply rely less on its Commerce Clause powers in the future and resort to its taxing powers, because Roberts shortly makes clear that this limitation applies only to “police powers” — that is, Congress cannot criminalize inactivity.

Turning to Congress’ taxing powers, Roberts seems to undercut everything he wrote about regulating inactivity:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. … That, according to the [Federal] Government, means the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earn­ing income. (emphasis added)

Viewed in the lens of taxation, then, inactivity is “just another thing,” like … wait for it … activity. So, everything Roberts wrote about Congress’ inability to regulate inactivity amounts to this: Congress can’t throw you in jail for not doing something, but it can take away your personal property for not doing something. This is hardly a comforting limitation.

UPDATE at 11:05 a.m.: The coalitions of justices on various parts of the ruling are a bit tricky to follow, but the bottom line is that Chief Justice John Roberts, appointed by President George W. Bush, voted to uphold the law in its entirety, while Justice Anthony Kennedy, a Reagan appointee and the supposed swing vote of the court, voted to throw it out in its entirety. So, while Kennedy had been seen as the one who would decide the law’s fate, he went right and the court went left. That’s one of many ways this precise ruling — not the broad outcome, but how a majority of justices reached it — is completely unexpected.

UPDATE at 10:55 a.m.: Finally have the ruling. It’s pretty clear why CNN blew it — and, oh, did they blow it, reporting first that the mandate was struck down. From page 2 of the summary:

CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause.

But then you turn to page 3 …

CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

And page 4 …

CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.

So, it’s a tax. Which is exactly what the Obama administration said it wasn’t while it was trying to pass the bill, and then reversed itself and said it was once the law got to court. That distinction may also have implications for repealing the bill.

More to come.

ORIGINAL POST:

The Supreme Court has upheld Obamacare as constitutional; beyond that, I can’t say much yet. There have been so many contradictory reports — including about the size of the majority — that I’m not going to comment further until I’ve read the opinion myself.

– By Kyle Wingfield

Find me on Facebook or follow me on Twitter

474 comments Add your comment

JDW

June 28th, 2012
10:32 am

As I said to Tiberuis last night progress is coming like it or not. We have another step in the right direction.

Junior Samples

June 28th, 2012
10:40 am

Mitt Romney will claim credit in 3, 2, 1…

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
10:42 am

Not so fast, JDW. Let’s look at the “be careful what you wish for” scenario.

1. How is this new “tax” going to be collected? In your paycheck? What are the ramifications of seeing a healthcare tax taking money out of your wallet each week / month?

2. What is this tax going to fund? Private insurance? Don’t think so. So the alternative is Medicare. What’s the problem with Medicare? Doctors aren’t accepting new patients because they don’t get paid for the procedures they do, and they don’t get paid quick enough. SO now you’re paying a tax for something you cannot use. How’s THAT going to go over with voters? I’m guessing not so well.

This is a huge loss for the American people, but a huge win for the campaign of Mitt Romney – if he thinks it through to it’s inevitable course.

I can see the media blitz even today: “Obama is responsible for the largest TAX INCREASE in the history of this nation . . . . while the average American is struggling to pay their bills . . . ”

Thank you, Chief Justice Roberts, for your incredible punting skills! :)

Love me some Reagan

June 28th, 2012
10:43 am

Yes, Thank you Chief Justice Roberts

Just saying..

June 28th, 2012
10:43 am

Thanks, Mitt. You came up with a Really great plan…

That's Goofy

June 28th, 2012
10:44 am

Activist judges!

All goofing aside – I have been surprised and disappointed by recent SC rulings. When Supreme Court Justices rule for country instead of party – The USA is a better place.

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
10:45 am

Let the whining and temper tantrums begin…..

That's Goofy

June 28th, 2012
10:46 am

The dumbest argument against Obamacare: private insurance companies will lower rates of Obamacare is repealed.

DannyX

June 28th, 2012
10:46 am

Tiberius last night wrote…”Looks as if JDW has surrendered for the evening. I’m sure he’ll be willing to take more pounding tomorrow after the SCOTUS decision on Obamacare.”

LOL! Some pounding!

Tiberius gets yet another one wrong.

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
10:46 am

And let’s add one more thing into the “Be careful what you wish for” scenario.

What employer is going to continue to pay for private health insurance when they can get away with just letting the government do it? MILLION of Americans will now be dropped from the coverage they like (by an 80% approval rate, btw), and forced to seek medical care from unfamiliar doctors and uncertain acceptance.

Thank you, Chief Justice Roberts!

Just saying..

June 28th, 2012
10:47 am

Tiberius – Banned from Bookman’s and proud of it!
June 28th, 2012
10:42 am: “…but a huge win for the campaign of Mitt Romney”

Guess it is true…not that many people think like Tib…

Cutty

June 28th, 2012
10:47 am

‘This is a big f’n deal!’

BW

June 28th, 2012
10:48 am

There are literally many heads exploding right now!!!!

jconservative

June 28th, 2012
10:49 am

The law that makes refusal to pay the “tax” for non-purchase of insurance carries no criminal or civil
penalty for refusing to pay the “tax”.

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
10:49 am

DannyX, he’s (and you) are going to take a pounding, because (unlike the two of you) I have thinking skills far beyond your capability and and ability to think past the initial reaction which is disappointing, and move to the larger issue of the electoral ramifications of this decision.

Roberts got it wrong, but he handed Mitt a HUGE campaign WIN!

southpaw

June 28th, 2012
10:50 am

Tiberius @10:42 -
The tax is projected to be collected by adding a line to the federal tax return. If you have health insurance, skip that line. If you don’t, add the tax. It would be about the same as additional income tax coming out of your paycheck during the year, or having to pay it by the usual April 15.

As for what it will fund, I’ll avoid answering for lack of so much as a clue…

BW

June 28th, 2012
10:50 am

Tiberius

I’m not sure that you gasp this completely….the private system will remain intact…they will manage the new high-risk pools…this was never about providing a public option or single payer….please at least cry about the right thing!

JF McNamara

June 28th, 2012
10:50 am

Now I wish the Republicans would do their job. The law is in place. Forget repealing it. Forget the anger about losing. Just work with the Democrats to make it better. In American government, the oppositions job is not simply to oppose. Its to fix problems. This problem is about 80% fixed. We could use your help on the other 20%

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
10:52 am

DannyX, step aside for Tiberius’ gigantic ego. It must be reinforced on these blogs every 2 minutes or so.

BW

June 28th, 2012
10:52 am

JF

Amen! I hope that the both parties will stop the zero-sum games and start making the hard decisions with the understanding that some spending will go down and some revenue aka taxes will go up.

markie mark

June 28th, 2012
10:52 am

man….Roberts is the closet liberal….who the hell knew?

Just saying..

June 28th, 2012
10:53 am

jconservative
June 28th, 2012
10:49 am: “The law that makes refusal to pay the “tax” for non-purchase of insurance carries no criminal or civil penalty for refusing to pay the “tax”.”

Grasping straws. If the law can be repealed, can you imagine it being amended?

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
10:54 am

“the private system will remain intact”

BW, it can’t remain intact. Employers will find it cheaper to drop private coverage and just let their employees get taxed by the government.

This will inadvertently become a de-facto public option, and will fail miserably when doctors no longer accept these new patients and drop their existing ones.

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
10:54 am

JF is on the right tack.

SheezLouise

June 28th, 2012
10:55 am

About time Wingfield. I asked Jay to come retrieve you from the janitor’s closet. Just thought I’d come to the blog and thumb my nose at you guys and make the point that ONCE AGAIN, Obama continues to make his haters his B—–s! You will probably moderate me out, but for the few seconds it might stay..

Bye!!

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
10:55 am

Finn, you are always free to attempt to intelligently debunk my assertions at any time.

I’m just not going to hold my breath waiting for you to do so.

Mark

June 28th, 2012
10:55 am

WHERE IS td? I cannot wait to hear what he has to say now. LOL!

Love me some Reagan

June 28th, 2012
10:56 am

Where are all the bloggers who claimed Obamacare was unconstitutional?

Those right wing talk shows, blogs, website sure duped you people

:-)

Have a good day spinning away

Steve Dunbar

June 28th, 2012
10:57 am

Kyle, Going to have a hard time with this one aren’t you.

Maybe check Ezra Klein’s column in Tuesday’s ‘Washington Post’.

Remenber, the indiviidual mandate was a policy idea Republicans had thought of in the late 1980 and supported for two decades. Only after Obama was elected did it become a bad idea.

Etch a Sketch

June 28th, 2012
10:57 am

Mitt will say that he was for it before he was against it, but now that its been upheld, it was always Mitt’s idea.

Just saying..

June 28th, 2012
10:57 am

JF McNamara
June 28th, 2012
10:50 am: “Now I wish the Republicans would do their job. The law is in place. Forget repealing it. Forget the anger about losing. Just work with the Democrats to make it better. In American government, the oppositions job is not simply to oppose. Its to fix problems. This problem is about 80% fixed. We could use your help on the other 20%”

JF- The old Republican Party: No problem.
This current Masquerade Party: tantrums, name-calling, holding their breath…

Love me some Reagan

June 28th, 2012
10:58 am

Kyle

Nice article. The law will move forward. I doubt the current form will be intact in 12 months, however more of it will will remain than you ever thought it would

Uncle Billy

June 28th, 2012
10:59 am

A single payer reduces expenditure the most. This will have to do for the time being. And everything is only for the time being. But right now HALLELUJAH!!!!!!!!!!!

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
11:00 am

Styeve Dunbar, once again (and please pay attention this time), saying the individual mandate was a “Republican idea” is patently false.

That it was an idea of a few Republicans is true, but it was never adopted nor endorsed as a platform by the party, and was only submitted for consideration by less than a handful of Republicans.

You, and Ezra Klein, have it grossly wrong.

JDW

June 28th, 2012
11:01 am

@Tiberius…”Roberts got it wrong, but he handed Mitt a HUGE campaign WIN!”

The only thing Mitt is going to win is between 240 and 250 EV’s. Be happy with that. It’s as close as the current crop of Republicans will get. Now if we get some new ones in the mold of Eisenhower, Ford and Powell then the dynamic will shift.

BW

June 28th, 2012
11:02 am

Tiberius

Really??? No one will pay for healthcare in the private sector? I don’t remember the part about this being an employer mandate ala Nixon’s original plan. All the Dems ran as fast as they could away from the public option or single payer. I will agree that there is more tweaking to be done….there are too many people engaged in nilihism about this and that is not a solution to the problem.

jd

June 28th, 2012
11:02 am

There is not “tax” but a “penalty” if you do not have insurance. So, only lawbreakers will pay a penalty — any responsible person will have health insurance.

Old timer

June 28th, 2012
11:03 am

There are already 20 taxes in the healthcare law being collected….small ones, but taxes. I hope the republicans can get it together in congress and presidency this fall. The current president know know bounds.

HAHAHaHaHaHa

June 28th, 2012
11:03 am

VICTORY!!!!!!!!!!!! Ha Ha!!!!!!!!

Uncle Billy

June 28th, 2012
11:04 am

TIBERIUS–Please do hold your breath until Finn………………….

Lil' Barry Bailout (Revised Downward)

June 28th, 2012
11:06 am

If you wanted to see some energized voters come November, you got your wish.

BW

June 28th, 2012
11:06 am

jd

The collection mechanism will be quite interesting….this won’t be even started to be settled until after the election. Once they deal with the sequester this has to be the next priority followed closely by an overall tax code re-write….the only question is if Obama is still President and the House and Senate retain their current leadership configurations will one party go scorched earth or not.

JDW

June 28th, 2012
11:06 am

@Tiberius…”Styeve Dunbar, once again (and please pay attention this time), saying the individual mandate was a “Republican idea” is patently false.”

The Heritage Foundation, the American Enterprise Institute, Gingrich, Romney all Republicans all for the mandate. In fact the GOP was so fond of the idea that Sen. John H. Chaffee of Rhode Island and several other Republicans introduced legislation during the 1993-94 debate on the Clinton health care plan to require individual households to obtain coverage for acute and emergency care.

Thats a Republican idea backed by Republican legislation…any other conclusion is just a falsehood.

BW

June 28th, 2012
11:07 am

LBB

Please!!! If the opponents of the President aren’t already energized they are dead. Take it up with your boy, the Chief Justice.

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
11:08 am

BW, have you ever run a business?

The FIRST THING you do after providing a good product is try to REDUCE COSTS.

If this remained a fine or penalty, the employer wasn’t in the picture. But now that it is a tax, and has to be administered as one (payroll deduction, perhaps?), employers will find it far more convenient to drop their private coverage TO SAVE MONEY.

Of course, I can’t wait to see the unemployment numbers rise exponentially as health insurance companies start laying off people left and right as a result of this decision.

Again, thank you Chief Justice Roberts!

JDW

June 28th, 2012
11:08 am

@LBB…”If you wanted to see some energized voters come November, you got your wish.”

Indeed you are right. The Presidency is safe for Obama, the Senate is safe for the Dems and after the fallout the House may be in play again.

Gm

June 28th, 2012
11:08 am

Obama resume

1. bin ladin done

2. Health care done

3. Dont ask dont tell done

4. Saved millions of jobs auto bail out, done

This President has done more for America then any President, thanks President Obama for caring for Americans”””””

BW

June 28th, 2012
11:09 am

Tiberius

I can’t talk to you while you’re like this….I’m going to give you some time to calm down

Tiberius - Banned from Bookman's and proud of it!

June 28th, 2012
11:10 am

“There is not “tax” but a “penalty” if you do not have insurance. So, only lawbreakers will pay a penalty — any responsible person will have health insurance.”

jd, that’s pre-SCOTUS logic.

It is now a tax, according to Chief Justice Roberts. NOT a penalty.

Steve Dunbar

June 28th, 2012
11:10 am

JDW, thanks for your support.