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
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474 comments Add your comment
Mary Elizabeth
June 28th, 2012
12:54 pm
The President began his remarks by saying that this decision should not be viewed as a partisan victory, but as a victory for the American people who will now be able to have the security of healthcare.
———————————
I wish to offer a moment of memory for, and gratitude to, the deceased Senator Edward Kennedy for his decades of unrelenting effort and commitment in trying to secure healthcare for all Americans as their right as Americans, and not simply as a privilege for the well-endowed and well-connected.
May you now Rest In Peace, Senator Kennedy.
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
12:55 pm
“You have to forgive the wingnuts, they’ve slowly become more and more unhinged as the economy improves”
I was unaware that dropping the expected growth to 1% from 1.9% was considered an “improving” economy Troll.
Finn McCool (The System isn't Broken; It's Fixed)
June 28th, 2012
12:55 pm
Well, today proves that GWB was pretty lousy at appointing a Chief Justice.
Ya think? Wasn’t his first choice Harriet Myers? LOL
stands for decibels
June 28th, 2012
12:56 pm
How exactly would he do that?
Mitt knows people, who know people…
retiredds
June 28th, 2012
12:57 pm
Brosephus at 12:40: You are correct. But the likes of Lil Barry, td, and other conservatives would only agree with you if the SC decides issues that conform to their ideology. And therein lies the problem for the R’s and Tea Party: they can’t stand it when a ruling doesn’t go their way. So you have them screaming about the tax issue, just like they scream about voter fraud, immigrants taking their jobs, and when you call them out on the mythological weapons of mass destruction, etc., etc. So one of them says this is not America anymore and he (or she) is right. It is just not the America they want to foist upon the rest of us (and I thank the Supreme Court for that).
And like many of you it is fun to see the likes of td and lil barry squirm and try to rewrite history to their liking so they can live to see another day. And thankfully we live in a country that tolerates their views, my views, and the views of many others. So, td and lil barry have a great day is spite of your thinking that the sky is falling.
I demand to see Cheesy Grits Birth Certificate- Long Form Please
June 28th, 2012
12:57 pm
…and I’m not here to gloat,
I am.
I’m literally spiking a football as we speak.
A full size NFL regulation one.
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
12:57 pm
May you continue to Burn in Hell, Senator Kennedy.
Murderer AND drunkard.
Reason
June 28th, 2012
12:57 pm
Tiber
You have not responded to all the tax dollars that are being paid today to fund emergency room costs, public health clinics, public hospitals, Medicaid, insurance premium taxes to fund lousy high risk pools and uncompensated health care services that are funded through cost shifting by providers. We have a very fragmented healthcare system today but hopefully that will change. The only beneficiaries of the present system are the private insurance companies who avoid risk instead of spreading risk.
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
12:59 pm
“Wasn’t his first choice Harriet Myers?”
As usual, Finn, you are incorrect. Harriet Myers was never nominated for Chief Justice. Merely a Justice.
Tiberious, Refute this
June 28th, 2012
12:59 pm
The next logical progression is an oxymoron in the manner in which you use it. There is no next logical progression, there is only your guess as to what will happen.
I tried to engage with you but your continued dependence on your guess as facts make an intelligent debate impossible. You are hopelessly lost in your hatred and partisanship. Such fallacious argument is everything that is wrong with political discourse.
I may return but for now I’m out. If you want to take my having better things to do as a win then please feel free.
Tea Party Meber
June 28th, 2012
1:00 pm
I say its up 2 the citisen of this country 2 make sure Justice Roberts is not relected.
Brosephus
June 28th, 2012
1:01 pm
Well……seems at least 7 of the 9 are driven by ideology………so what’s that do for us?
In the short term not much we can do. In the long term, it shows we need to pay more attention to who we send to DC and the actions they take there. Both sides are equally culpable for those 7 being on the bench, and it will take both sides to NOT do that in the future. Given the partisaned nature of our country at this point and time, I don’t expect to see anything change in my lifetime.
Rafe Hollister, s avalancheuffering through Oblamer's ineptocracy
June 28th, 2012
1:01 pm
Brosephus,
If we allow or expect any justice to be driven by ideology instead of jurisprudence, then we may as well scrap the country altogether.
++++++++++++++++++++++++++++++
Conservative presidents appoint people who will uphold the constitution as written, and not make implausible, self serving, legally obtuse, activist arguments as reasons for why they do what they do. Roberts went around his elbow to get to his thumb, all to produce a ruling that he thought would not be perceived as ideological and present his court in what he thought was a favorable light. IMO
Dems appoint people to the SCOTUS, who they think will expand the powers of the Fed Gov and help implement the progressive agenda and make the Constitution evolve. They by and large always stick to script and no one ever questions how the Liberal Block will vote, it is understood.
The pressure is always on the Conservatives, to try and pick one off, to move the progressive agenda forward. Roberts leaped willingly into their lap. Turncoat is what he is.
Your statement is wishful thinking. These people have their ideology formed long before they are selected to the court. The President in power simply selects someone who thinks as he does. Roberts obviously favored popularity over his lifetime philosophy.
Did you have any premonition or self doubt that one of Oblamers appointees would vote to overturn. NO, you didn’t because, he picked people like Kagan and Sotomayor to uphold Obamacare. Roberts turned on the people who put him there as did Souter, appointed by GHWB.
md
June 28th, 2012
1:02 pm
“How exactly would he do that?”
Easy……just issue orders to not enforce certain laws he no longer likes……the current guy is setting that precedent.
Imagine, the next guy just up and decides he doesn’t like the hc bill and decides unilaterally that he will no longer have the DOJ or IRS enforce it………..
Pandora’s box is wide open………..
Thomas Heyward Jr.
June 28th, 2012
1:02 pm
For anyone interested in liberty……….
(Obama/Romney Supporting government Cheese/Brocolli eaters……just disregard)———-
“I strongly disagree with today’s decision by the Supreme Court, but I am not surprised. The Court has a dismal record when it comes to protecting liberty against unconstitutional excesses by Congress.
“Today we should remember that virtually everything government does is a ‘mandate.’ The issue is not whether Congress can compel commerce by forcing you to buy insurance, or simply compel you to pay a tax if you don’t. The issue is that this compulsion implies the use of government force against those who refuse. The fundamental hallmark of a free society should be the rejection of force. In a free society, therefore, individuals could opt out of “Obamacare” without paying a government tribute.
“Those of us in Congress who believe in individual liberty must work tirelessly to repeal this national health care law and reduce federal involvement in healthcare generally. Obamacare can only increase third party interference in the doctor-patient relationship, increase costs, and reduce the quality of care. Only free market medicine can restore the critical independence of doctors, reduce costs through real competition and price sensitivity, and eliminate enormous paperwork burdens. Americans will opt out of Obamacare with or without Congress, but we can seize the opportunity today by crafting the legal framework to allow them to do so.” ………Ron Paul
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
1:03 pm
Reason, I have already done so. You merely haven’t understood them.
For every person that might use an emergency room without health care insurance, there are literally tens of thousands who will never use that emergency room. In addition, there are still many people without insurance that will use the emergency room and actually pay for the services rendered.
I will also point out, despite your disdain for private insurance companies, that 80% of people with private insurance actually LIKE their insurance.
sheepdawg
June 28th, 2012
1:04 pm
hahahahahahahahahahahahahahahahah…whine on kyle, even your right wing skewed sc saw the truth in this one, have you considered you’ll be a later middle aged man when hillary finishes her second term as president?
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
1:05 pm
Tea Party Meber, Justices on the Supreme Court are not elected. They are appointed for life.
ld
June 28th, 2012
1:05 pm
I demand 12:51
And Bush did not lie about nationbuilding? BOTH Republicans and Dems lie — Romeny stumbled into the truth with his statement if we’re told the truth — their real agenda — we will not vote for them — any of them.
Brosephus
June 28th, 2012
1:06 pm
retiredds
I didn’t like the decision that came down today. I didn’t like the law that was passed either. I didn’t think it would be found unconstitutional either based on the effort put into crafting the idea of the mandate back in the 1990’s.
We need something to control costs, and selling the country to the insurance companies will not control costs. I would love to see the private sector work things out on their own, but I don’t expect them to put anything over the drive to increase profits. Without profits they don’t survive. If I knew the answer to what we need, I’d give it away in a heartbeat. I just don’t think that this law and the impending lawsuits were what we needed. Think of all the time and money wasted instead of actually thinking logically about what could be done to control costs.
Jefferson
June 28th, 2012
1:08 pm
Kyle, refrain from parrot like headlines, it puts you in a bad light. Be your own republican.
yuzeyurbrane
June 28th, 2012
1:09 pm
Most of your conservative posters have revealed what liars they have been in railing against activist judges and for the rule of law.
md
June 28th, 2012
1:10 pm
And the same folks applauding this big entitlement program will be complaining about some other program that the states will be forced to cut down the road and not have a clue as to why…….
Jefferson
June 28th, 2012
1:10 pm
3.5 years ago growth was negative, the ecomomy HAS improved in the last 3.5 years and I hope it continues forever no matter who is the president.
zebra
June 28th, 2012
1:13 pm
Wingnut tears really are delicious, albeit a little bitter and stale.
AmVet
June 28th, 2012
1:14 pm
Well, well, well.
I’m almost surprised to see this forum open.
I would have guessed that the haters here would have had so many Level 5 Meltdowns that comments would be closed. LOL. (And maybe they have, but I would have to give a ___ to go back and look!)
Stew in your sauces, Republicans. You just got b*tch slapped yet again.
And even worse, the forecast for the rest of the year calls for more …………………………………………………………………………………………………. pain.
yuzeyurbrane
June 28th, 2012
1:14 pm
Also, Kyle I am disappointed on your lack of comment in this case for the rule of law defeating judicial activism. Didn’t you write a column entitled, “In Arizona Case, Court Doesn’t Betray Its Alleged Ideological Gap” just a couple of days ago making that point? Time to reiterate it or confess your own hypocrisy.
Brosephus
June 28th, 2012
1:15 pm
First, the idea that Conservatives put justices there to uphold the Constitution while Liberals put justices there to expand government shows your true biases dictate your everyday thinking. Both “sides” put people there for the same reason, which is to uphold their ideological interpretations. If you think otherwise, I really pray for you.
Did you have any premonition or self doubt that one of Oblamers appointees would vote to overturn. NO, you didn’t because, he picked people like Kagan and Sotomayor to uphold Obamacare.
As to the vote, the only two votes I was really interested in were Kennedy’s and Roberts. Those two are the only two that actually show any capablitity of actual cogent thought. Whether I agree or disagree with them is pointless. If their thought is backed by the Constitution, who am I to call them wrong? You obviously have me confused with somebody who actually celebrated this decision today.
Roberts turned on the people who put him there as did Souter, appointed by GHWB.
Roberts was not appointed to please those who put him there. His job is to rule on cases based on the Constitution. No one person, group, party, or ideology will be correct 100% of the time. I’m glad that he has shown that he takes his job as Chief Justice to be that instead of Chief GOP cheerleader.
Don't Tread
June 28th, 2012
1:17 pm
The SC just handed Mitt and the Republicans a truckload of ammunition for the next election. They need to use it wisely.
Hillbilly D
June 28th, 2012
1:19 pm
This has got to be one of the more convoluted things, that I’ve heard in a long time. The mandate is unconstitutional but it is constitutional to be fined, oops taxed, for not complying with the mandate.
Some folks think they won here but the real winners are the insurance industry. They will have to cover everybody, in theory, so they’ll “have” to raise rates on everybody to cover insuring more “high risk” people. Since everybody now has to be buy insurance, I expect, they’ll come out with a new lost policy, which covers virtually nothing, that will cost slightly less than what the tax will cost, which will in effect be free money for the insurance company.
A side effect of this will be that more and more employers will curtail or drop coverage altogether, as costs continue to rise.
The Affordable Care Act, does absolutely nothing to control the rising cost of healthcare, which is where the real problem lies. It’s a boon to the insurance industry, who played folks like a cheap violin.
They had a chance to really do something about healthcare and they blew it. It’ll be many years before another chance rolls around and I don’t expect to live to see it.
I haven’t read any of the posts, so I don’t know if Bruno has been here or not but he and I have had the discussion before, that as long as you have a 3rd party payer, costs will continue to go up. That leaves two options, everybody shops and pays their own bills, which is probably okay for routine health maintenance type things but not serious injury/illness situations or you go with single payer.
Me, I’m for single payer but I don’t expect to ever live to see that. Those who thing this will lead to single payer are kidding themselves, in my opinion.
If I was one of those people who likes to play the Wall Street casino, I’d be on the phone to my broker, investing in companies that sell health insurance. You’re likely to do well, which was the point all along.
And on another bent, I’m probably in the most minor of minorities but I never thought freedom of speech was intended to mean the freedom to lie, when you in fact knew you were telling a lie. I don’t think that’s what the Framers intended.
Jefferson
June 28th, 2012
1:19 pm
Wise GOP ? huh.
Jefferson
June 28th, 2012
1:21 pm
NOBODY says the law can’t be a work in progress to help Americans. Don’t stop moving forward.
Lil' Barry Bailout (Revised Downward)
June 28th, 2012
1:22 pm
Coming soon–purchase a handgun or pay a penalty.
Finn McCool (The System isn't Broken; It's Fixed)
June 28th, 2012
1:24 pm
“I feel like I’m going to cry. I’m so relieved right now,” said Josephson, 39, who lives in Jacksonville, Fla. Her 6-year-old son, Wesley, has a pre-existing medical condition that made it impossible for the family to find health insurance for him until the law passed in 2010.
HuffPo
You would think the christian right would be able to muster an ounce of compassion for their fellow Americans. Alas, it’s all me, me, me, me, me, me, me, me.
Brosephus
June 28th, 2012
1:24 pm
Hillbilly D
I’ll second your entire post. Well stated. That’s why I don’t understand the whole issue anyway. Regardless to how the SCOTUS ruled, we were still gonna get screwed on healthcare costs. As long as the middleman is there to squeeze both sides, costs will not go down.
retiredds
June 28th, 2012
1:27 pm
Brosephus: You are on target about the insurance companies and profits. But let us not forget that they are in business to make money. As to your other comment about the private sector working things out it appears to me that is a conflict of interest for the private sector as it would impede the opportunities to maximize profits.
On another note, as long as we have a Congress where the opposing sides operate under the rules that those who differ from your ideology are the enemy then decisions of import such as the health care decision will be decided by the Supreme Court. That is why the immigration issue can’t be solved because each side is entrenched in its own views and if you disagree you aren’t a true American, and other such cesspool thinking.
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
1:27 pm
“First, the idea that Conservatives put justices there to uphold the Constitution while Liberals put justices there to expand government shows your true biases dictate your everyday thinking.”
Brosephus, HUGE disagreement here.
The expanded powers of the Federal government have ALWAYS come through the courts upholding legislation passed by liberals.
Jefferson
June 28th, 2012
1:27 pm
Bro,Hill — thats why Congress need to worry about Americans and not the next election. The laws can be improved and modified as needed, but this we won/the world is over drama will have to be put aside in the name of maturity.
Hillbilly D
June 28th, 2012
1:28 pm
Brosephus,
I think you and I have been on basically the same page on this, the whole time. What difference does it make if I get shot in the left side of the head or the right side of the head? The results are the same.
Curious
June 28th, 2012
1:28 pm
Don’t give the Republicans any ammunition. They’ll shoot themselves in the foot.
Is stupidity classified as a pre-existing condition?
Finn McCool (The System isn't Broken; It's Fixed)
June 28th, 2012
1:29 pm
Here you go Tiberius:
On October 3, 2005, Harriet Miers was nominated for Associate Justice of the U.S. Supreme Court by President George W. Bush to replace retiring Associate Justice Sandra Day O’Connor. Miers was, at the time, White House Counsel,
Miers withdrew her nomination on October 27, 2005.
See, Tiberius is always right – in his lil dream world….
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
1:30 pm
And filing another “Law of unintended consequences” brief, this ruling means that small businesses of 50 employees or more must provide health are coverage or pay a penalty.
Wanna bet that penalty is smaller than paying for health insurance for their employees?
Either that, or employers will now lay-off people to get below 50, or not expand if it means going over that number.
Way to go, Barry, to help that economy along!
Hillbilly D
June 28th, 2012
1:31 pm
Jefferson @ 1:27
In a perfect world, that’s what would happen. Maybe they’ll (both sides) surprise me but I doubt it. Their major focus is getting re-elected and if by chance they can’t get re-elected, Plan B is to land a high paying lobbying job.
Finn McCool (The System isn't Broken; It's Fixed)
June 28th, 2012
1:32 pm
Harriet Myers:
…..The nomination almost immediately drew criticism, virtually all of it from within the President’s own party: David Frum castigated an “unforced error”,[1] and Robert Bork denounced it a “disaster” and “a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.”[2] Hearings before the United States Senate Judiciary Committee had been scheduled to begin on November 7, and members of the Republican leadership had stated before the nomination that they aimed to have the nominee confirmed before Thanksgiving (November 24)
mwuahahahahahahahahaha. Epic fail.
Tiberius - Banned from Bookman's and proud of it!
June 28th, 2012
1:33 pm
Finn, you really need to read my responses to you, or bone up on your english language skills.
You said she was nominated for CHIEF Justice. I said she wasn’t, but for a regular (or Associate) Justice.
Your post just proved me right – again!
Darwin
June 28th, 2012
1:33 pm
Kyle – Would have loved to see your headline if the decision had gone the other way. But you got a dig in anyway. Good for you!
iggy
June 28th, 2012
1:34 pm
“Either that, or employers will now lay-off people to get below 50, or not expand if it means going over that number.”
Or bigger companies will simply split into multiple companies to stay below the 50. That would be the smart thing.
We can only hope most of those companies laying off workers employ democrats.
iggy
June 28th, 2012
1:36 pm
According to Finn, Harriet Myers was “too fine, a goddess.”
Darwin
June 28th, 2012
1:36 pm
Tiberius @ 1:27 – “The expanded powers of the Federal government have ALWAYS come through the courts upholding legislation passed by liberals.” How about the right to an abortion?
Jefferson
June 28th, 2012
1:40 pm
Hill, agreed but without hope there is no use in the future. Its bad when those who can solve problems only worry about their existance.