July 3, 2012

Language, intent, and “interpretation”

Pursuant to an exchange happening in the comments, allow me to respond to a point argued by the Chief Justice — which is at the very heart of his decision — and add it to the response from the dissenters.  I do this because it will become clear to many longtime readers of this site just how perfectly Roberts’ argument, and my rebuttal to it, replays the intentionalism discussions so inextricably linked to protein wisdom’s raison d’etre.

Notes Roberts (citing Holmes):

between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.

To which the dissenters responded:

[Scalia, Kennedy, Thomas, and Alito, JJ., dissenting] “[...] In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

The conservatives on the Court did a good job with this from the perspective of legal precedent. My concentration will be to tackle this from the position of linguistic coherence.  Because again, I must point out that this is precisely why we are where we are — and why conservatism and  classical liberalism will continue to erode should we not address the root linguistic issues that work consistently to push the determination of meaning into the hands of those who do violence to texts.

In this case, Roberts begins in error — and in so doing, reveals himself not to be an originalist at all.  Because from an hermeneutic perspective, it is nonsensical to say (by way of reference to Holmes) that, in the case of the Affordable Care Act, there were before him “two possible interpretations”.

And that’s because there weren’t “two possible intepretations” — unless, that is, one thinks of interpretation as the ability to change another’s meaning and yet still keep that person’s signifiers (the marks that look like language) intact.

Consider:  if you already know what someone intended — that is, you already know what they meant when they communicated to you through what you assume to be language — then you’ve already done the job of interpreting, which is merely to decode the message they wished to get across.

And here, Congress and the President told all of us that the individual mandate was intended as a penalty, not a tax.  Further, the legislative history so important to originalism clearly shows that the Congress rejected the tax proposal and instead reworked the statute to develop a mandate that relied on a penalty for enforcement.  That they did so to avoid having to create a tax was itself an intentional act.

One can’t, therefore,  “interpret” that another way; one can only assert that what was meant is not what was meant, then pretend it is the fault of those who clearly meant what they meant for not writing the law in such a way that one so inclined to couldn’t so easily and readily pervert it.

Like committing a rape, then blaming the victim for not being covered up enough in that short skirt and pumps.

The best we can do to rehabilitate Roberts is perhaps to suggest that he allowed the government’s lawyers to rewrite the law when they argued (briefly) that the penalty the Congress passed was now suddenly a tax.  But if that’s the case, Roberts’ decision to accept that argument commits him to ruling on a law different than the one passed by Congress and sold to the American public.

How we get there matters. What we think we’re doing when we claim to be interpreting matters.  The moment we as a society allowed for the institutionalization of bastardized ideas of what comes to count as “interpretation” — in this instance, CJ Roberts has conflated interpretation with his ability to manipulate the marks presented him by others until they supposedly “say” what he wants them to say, in essence, intentionally rewriting the text to make it his own, then pretending Congress allowed for him to do so — is the very same moment we began the road toward a complete deconstruction of the founding principles of individual autonomy and liberty.

The hermeneutic Roberts deployed here is no more than a linguistically incoherent exercise passed off as legitimate by those who wish to change the locus of meaning from the original agency to those who receive the message.  And that way always lies tyranny.

Don’t say I haven’t told you so — “fundamentally unserious” though such lessons may have been.

(thanks to BMoe, Squid,  sdferr, and LMC)

Posted by Jeff G. @ 8:59am
119 comments | Trackback

Comments (119)

  1. I wonder if Johnny Roberts actually thinks COTUS is just some old relic no one really understands, anyway. I mean, it’s like a hundred years old, or something.

    In which case, can’t we all just get along?

    This isn’t the Roberts court, it’s the Rodney King court.

  2. Magister John Klaudios Ptolemaios Roberts has saved the Act appearances.

  3. Well, Roberts is certainly the center of his universe. Our liberties, mere ephemeral epicycles.

  4. I’m sure he found reason in emanations from the penumbras.

  5. Speaking of language and interpretation, there’s one glaring item that seems to be glossed over continually: Health insurance is not health care.

    Let’s jump forward a couple years, and everybody has their shiny new insurance card, or their Federal ObamaCare card (because ppl who can’t afford insurance have to get it paid for by others).

    That card is not an appointment to see a doctor. How much benefit is the shiny card when the next open slot is four months from today? The card in and of itself is not “access to health care”.

    Neither is the card competant care from a doctor. The shiny card doesn’t help you much if, when you finally arrive at your long-awaited appointment, you’re seen by someone who graduated in the bottom quartile of the Bob Marley School of Medicine and Jah Love. So when your “doctor” has you soak your cut thumb in turpentine to “take de so’ness out it, mon.”, you can see that the card in and of itself is not “health care”.

    So, short story, ObamaRobertsCareTax is neither health care nor access to health care. It’s a way to move oodles of money from our pockets into the pockets of people who will administer and otherwise make rules about health care and access to it. For our own good. Subjects.

  6. I wonder if Johnny Roberts actually thinks COTUS is just some old relic no one really understands, anyway.

    It is a mysterious old relic that only the select few can understand.

  7. JJ. Scalia, Kennedy, Thomas and Alito mutter under their breath: “E pur si muove!”

  8. Ah, yes… the “Good Man” maneuver (AKA “unilateral cease-fire”) makes its inevitable reappearance in the GOP side of the election.

    Romney Campaign Declaring Cease Fire on Health Care

    Thank God. For a minute there, I was worried that in Romney we had a real “call it like it is”, “take no prisoners”, “punch back twice as hard” firebrand on our hands.

  9. Sorry, OT.

  10. America-Lite: How Imperial Academia Dismantled Our Culture (and Ushered In the Obamacrats)

    America-Lite (where we all live) is just like America, only turned into an amusement park or a video game or a supersized Pinkberry, where the past and future are blank and there is only a big NOW. How did we come to expect no virtue and so much cynicism from our culture, our leaders—and each other?

    In this refreshingly judgmental book, David Gelernter connects the historical dots to reveal a stealth revolution carried out by post-religious globalist intellectuals who, by and large, “can’t run their own universities or scholarly fields, but are very sure they can run you.” These imperial academics have deployed their students into the top echelon of professions once monopolized by staid and steady WASPs. In this simple way, they have installed themselves as the new designated drivers of American culture.

    Imperial academics live in a world of theory; they preach disdain for mere facts and for old-fashioned fact-based judgments like true or false. Schoolchildren are routinely taught theories about history instead of actual history—they learn, for example, that all nations are equally nice except for America, which is nearly always nasty.

    With academic experts to do our thinking for us, we’ve politely shut up and let second-raters take the wheel. In fact, we have handed the keys to the star pupil and teacher’s pet of the post-religious globalist intellectuals, whose election to the presidency of the United States constituted the ultimate global group hug.

    h/t Instapundit

  11. Let’s jump forward a couple years, and everybody has their shiny new insurance card, or their Federal ObamaCare card

    Darth, my wife continually gets patients in her ER demanding their ObamaCare. Needless to say, they’re not happy to learn that ObamaCare is just a slogan and that ‘free medical care on demand’ does not exist.

  12. Speaking of language and interpretation, there’s one glaring item that seems to be glossed over continually: Health insurance is not health care.

    Yes, this. And this “freerider” talking point the Dems are now so fond of is also bullshit because health insurance is not health care. Last I checked you can still pay for health care.

  13. Remember how much of the last election revolved aroung foreign policy? How the democrats demogogued the hell out of it and were going to change everything? Then they got elected and didn’t change a fucking thing?

    Substitute Parties and causes and you are about to see the same thing with health care.

    Just like 2000, remember? We kept the congress, and had a new conservative president (abet one that felt the need to qualify conservative with “compassionate”, doubtless for purposes of “collegiality and unanimity”). We were sure budgets would be balanced, there would be peace through strength, and free enterprise would tame entitlements through prosperity.

    Instead we got No Child Left Behind, Medicare expansion, the massive new bureaucracy known as DHS, and congress spending like drunken sailors, resulting in a base that stayed home during the 2006 election.

    Things will be different this time, I’m sure! *eye roll*

  14. Damn it, wrong thread.

    Pretend I put that in the flashback thread, would ya?

  15. Rush is all over what a disaster ObamaTax/RobertsCare really is. I think pw-ers are well aware that this is the biggest change in the relationship between the individual and the government in recent (?) history.

  16. I think it was leigh who said the other day that she thinks that Rush reads pw. Yesterday he was talking about how the left has redefined language, in this case, “marriage”. Sounded exactly like our conversations here.

  17. It’s a way to move oodles of money from our pockets into the pockets of people who will administer and otherwise make rules about …

    Ever since the dawn of progressiveism this has been what they have accomplished, as opposed to what they claimed their ends were. The twist which made this way of governing become the domineering menace it is today is that a percentage of those “oodles” is used as type of positive feedback when kicked back into the coffers of those politicians who set the thing into, and keep it in motion.

    All that we have and are seeing happen is simply a predictable result of the application of positive feedback to a system.

  18. between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.

    Consider the hubris there alone. Does this not stand judicial review on its head? It is not the plain duty of the court to save any Act, but to determine if it stands within the confines of the Constitution. He literally admits here that he indeed set out to fabricate a legal opinion to deliver the desired outcome, the triumph of RobertsCare as established law.

    In fact if you have “two possible interpretations,” sweetie, one of them is wrong.

  19. I should add that if you come up with two possible interpretations and you can’t be sure which is correct, you ought to get the hell off the bench.

  20. Or both.

  21. But in oral argument Vermicelli specifically says that the penalty was always meant to be a tax and the President was talking out his ass. I found that quote and dropped it in the other thread.

    Roberts responded to the dissenters:

    In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck downbecause Congress used the wrong labels. An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing thresholdneed not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

    Later he drops this:

    The “question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Woods v. Cloyd W. Miller Co., 333 U. S.

    This is the argument that convinced me that Roberts was correct and the mandate is, in fact, a tax.

    My reading of both the opinion and the dissent leads me to believe that we actually have too many conservatives on the court, and Roberts is the most conservative of the lot. He was definitely worried about the status of the court, and the effect that striking the mandate because of its labeling would have on… hell, almost everything the government does. Reading the opinions, dissents and, worst of all, some of the precedents, I’ve realized exactly how long the government has been trying to modify behavior based on some politicians idea of commonweal. What we need, if we want to reduce the power of government and start a trend of movement to original principals, are more radicals. Stir it up, we’ve got at least 180 years of doing to undo.

    Yesterday happyfeet smacked me around with

    then Alito Scalia Kennedy and Thomas are out of control activist judges trying to subvert the constitution to advance an extreme right-wing agenda Mr. Cookies.

    Exactly. That’s exactly what I think. I don’t disagree with that right-wing agenda, I disagree with their finding that the mandate is not a tax. A tax, written as a tax, argued as a tax, collected as a tax and called a penalty, is still a tax. I disagree with Alito et al, and I think they are the people reinterpreting the intent of the authors of the statute, who clearly meant to tax those who choose not to purchase health insurance in order to pay for steak dinners and hookers for government employees health insurance for Democrat voters politically privileged classes po’ folk.

    If the gov’t's power to tax (it’s overwhelming power to tax) can be limited by court because of how the tax is labeled and how that label is interpreted by a court committed to finding a statute unconstitutional, is that not legislating from the bench?

    Sure.

    We need more of it?

    Sure.

  22. As a variation of Ric Locke’s famous quote:

    It’s like Roberts deemed a cow a vegetable, so vegetarians can must eat a hamburger.

  23. I mean, this staggers me… two possible interpretations? If you favor one, then the other must not be “possible,” in other words, wrong. If not, why favor one over the other? For kick? Power? Unanimity and collegiality? Is this a court or a star chamber?

    Or maybe this is a lot of prolix hooey to hide naked judicial fiat.

  24. I disagree with their finding that the mandate is not a tax. A tax, written as a tax, argued as a tax, collected as a tax and called a penalty, is still a tax.

    A tax on what?

  25. between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.

    Consider the hubris there alone. Does this not stand judicial review on its head?

    No. The “two interpretations” are the two arguments being made; the commerce clause argument and the taxing power argument. The fact that the statute would be unconstitutional under the commerce clause does not invalidate the governments ability to tax you into a hole in the ground (which you owe property tax on, deadbeat).

    Roberts is clearly concerned that precedent could be set that would mean that any statute enacted that may be invalid under one of congresses enumerated powers could be held as unconstitutional even if valid under another of congresses enumerated powers.

  26. The government’s power to tax is limited by the grant of sovereign power to the government from the people who created that government. Legitimacy, we say, resides in the consent of the governed. Was this law passed with the consent of the governed? Does the law abide today by the consent of the governed? Are these questions beyond the reach of the court, or beyond the reach of politics as such, taken all in all?

  27. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
    [...]
    The Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for purposes of the Anti-Injunction Act … but is a tax for constitutional purposes … The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitu­tional purposes the minimum-coverage provision is a tax: confusing the question of what Congress did with the question of what Congress could have done. What quali­fies as a tax for purposes of the Anti-Injunction Act, unlike what qualifies as a tax for purposes of the Constitution, is entirely within the control of Congress.
    [...]
    What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries ver­bal wizardry too far, deep into the forbidden land of the sophists.
    [...]
    And the nail in the coffin is that the mandate and pen­alty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.”

  28. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted blah blah blah… That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

    Ahem.

    And the nail in the coffin is that the mandate and pen­alty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.”

    Words count. They mean something, especially in court and in the law. And if Roberts exercised reasonable judicial review then a cow is, in fact, a vegetable.

  29. Even if it’s properly interpreted as a tax, then the whole thing should have been tossed because it’s unconstitutional to tax people for NOT engaging in commerce. Wickard aside.

    Such a thing has been done a hundred and sixty eight times before, by the Court properly constraining congress to the constitution…why was a hundred and sixty nine times too much?

  30. In fact if you have “two possible interpretations,” sweetie, one of them is wrong.

    Or the text was written to encompass both interpretations at once, in which case the law is a freaking mess as well as an ass.

  31. The fact that the statute would be unconstitutional under the commerce clause does not invalidate the governments ability to tax you into a hole in the ground (which you owe property tax on, deadbeat).

    First, states collect property tax, not DC. Furthermore, I was unaware that we all agreed the only thing between the Congress and our wallets was Congress’s genteel forbearance to let us keep some of our its crumbs, as apparently Congress owns everything.

    Perhaps at one time we thought COTUS was a document defining the limits of government, but apparently it has none, so who needs it? That is certainly true now, since Roberts has set a precedent that gubmint can tax you for literally anything… even for not doing something. Congratulations.

    Forget the keyhole of the commerce clause, Roberts has blown the hinges off the door to taxation.

  32. Even if it’s properly interpreted as a tax, then the whole thing should have been tossed because it’s unconstitutional to tax people for NOT engaging in commerce.

    Furthermore, you can’t challenge a tax in court until someone’s had to pay it.

    The only reason the case got to SCOTUS in the first place was that it was NOT a tax.

    Now what?

  33. Or the text was written to encompass both interpretations at once, in which case the law is a freaking mess as well as an ass.

    This does asses a disservice. Donkeys are highly useful animals. Of course, we are now all mules, in train of the gubmint.

  34. If Obamacare were legitimately constitutional under the powers of taxation, at least one of the other four conservatives would have seen it that way as well.

    If Alito and Thomas can’t see it, it’s not there.

  35. “Forget the keyhole of the commerce clause, Roberts has blown the hinges off the door to taxation.”

    And did it without the decency even to forgo writing such insulting stuff as “That is not the country the Framers of our Constitution envisioned.”

  36. Was this law passed with the consent of the governed? Does the law abide today by the consent of the governed? Are these questions beyond the reach of the court, or beyond the reach of politics as such, taken all in all?

    There’s the rub

    But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.

    He’s trying to say, “You can vote these mother’s out you know.” But he can’t because that would be uncouth. Maybe he could get Romney to say something to the Senate during the State of the Union?

  37. The only reason the case got to SCOTUS in the first place was that it was NOT a tax.

    Just words. Gosh, as a layman one might think Roberts wanted to hear the case just to make sure his predetermined choice could put the law into stone.

    http://www.hoover.org/publications/defining-ideas/article/121426

    The Chief Justice looks more like a batter seeking to execute a suicide squeeze than an umpire calling balls and strikes. At this point, labels no longer matter. What matters is whether Congress imposed a tax or imposed a penalty. In answering that question, the Chief Justice ignores the wide range of institutional safeguards that are required before taxes could be imposed.

    snip

    It is, however, worth noting that the Necessary and Proper Clause also applies to the power of Congress to lay and collect taxes. Only now it gets a rather different interpretation. When the matter comes to the taxing power, the Chief Justice finds it imperative to give “the full measure of deference owed to federal statutes,” without asking whether, as a matter of constitutional interpretation, it is both necessary and proper to do so. Indeed, the slightest measure of concern would indicate that what Congress calls a penalty should be treated as such.

    snip

    Chief Justice Roberts’ case is weak. As I wrote in the New York Times, historically, the taxing power was read in tandem with the commerce power. The actual words of the spending power are very narrow:

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

    The original intuition was that general welfare of the United States only covered standard public goods, leaving all welfare functions to the state. That position was obviously abandoned. But in its place, the rule was that the taxation power could never be used as an indirect form of regulation that Congress could not impose directly. That is exactly the argument that Chief Justice Roberts holds for the Commerce Clause, but at no point does he address the connection between the two clauses.

  38. I hate to tell him, but we already did vote them out in 2010. Perhaps he didn’t notice?

  39. Of course, some number of them fled the scene without bothering to run for office again, so well did they comprehend what they had done.

  40. Even if it’s properly interpreted as a tax, then the whole thing should have been tossed because it’s unconstitutional to tax people for NOT engaging in commerce. Wickard aside.

    Yeah, Lee, but like Roberts said, the government uses the tax code to encourage all sorts of behavior. Granted, dis-couraging behavior with a penalty is different than offering a credit or deduction….

    No doubt Roberts, in his Jedi masterfulness, would tell us that it’s only different in our little minds.

  41. He’s trying to say, “You can vote these mother’s out you know.”

    It’s not his job to save us from bad legislation.
    It’s his job to save us from unconstitutional legislation.

    Even though the IRS was commandeered to collect the PENALTY, the law was not structured as a tax, the parliamentary procedures did not treat it as a tax, the lower courts did not determine standing on its status as a tax, and therefore it is not a tax.

  42. Another illuminating paragraph from Epstein’s article:

    By [Roberts's] account, every penalty could be treated as a tax.
    That cannot suffice, however, as a matter of constitutional interpretation. So long as Congress has only limited powers of taxation, no one should be allowed to use verbal legerdemain to expand those powers by calling a penalty a tax. Here, the so-called indicia of a tax intended to run the distinction don’t quite do the job. The size of the payment cannot be dispositive, for if so, then someone has to find the point at which the constitutional tax becomes an unconstitutional penalty. There are also all sorts of strict liability offenses covered by penalties. Nor should Congress have the power to determine the constitutionality of its own legislation by altering the mechanism for its collection. And finally, all penalties raise revenues, leaving this supposed ground of distinction worthless.

    http://www.hoover.org/publications/defining-ideas/article/121426

  43. it’s unconstitutional to tax people for NOT engaging in commerce. Wickard aside.

    Here’s how they argued this: If you own a house, you can deduct your mortgage interest. If you rent, you can’t. All other things being equal, if you choose not to by a house with a mortgage, your taxes are higher.

    If you choose not to buy health insurance, your taxes are higher.

  44. What if the GOP had written a law to do X, and SCOTUS rules it unconstitutional because you can kinda sorta read it as Y?

    Would we be OK with that?

    I think not.

  45. Or the text was written to encompass both interpretations at once, in which case the law is a freaking mess as well as an ass.

    It’s gibberish and needs to be rewritten.

    The correct response would be a big red LERN 2 RITE !!!11!! stamp and send it back to Congress.

    But that would mean ceding power.

  46. All other things being equal, if you choose not to by a house with a mortgage, your taxes are higher.

    All other things are not equal. The tax law is so convoluted it’s difficult to sort out taxes levied from tax breaks.

    Yeah, I wondered about that myself, but there’s a difference between looking at the real-world effects of something and how the law that initiated the moneychanging was crafted in the first place, thus to be approved by the electorate.

    Obamacare doesn’t say that everyone’s taxes are hereby raised by $X, unless you purchase an approved insurance policy, in which case the $X is waived.

    It says that unless you purchase an approved policy, you have to pay a fine.

    Unless we’re all getting tax breaks for not speeding.

  47. By [Roberts's] account, every penalty could be treated as a tax

    Congress’s ability to use its taxing power to influence conduct is not without limits.

    and

    We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it losesits character as such and becomes a mere penalty with the characteristics of regulation and punishment.

    He goes on to say that they just haven’t found it to do that recently.

  48. He [Roberts]goes on to say that they [the Court] just haven’t found it to do that recently.

    Well, nobody’s encouraged Congress to exercise it taxing power recently, have they?

    At least not before last Thursday.

  49. It says that unless you purchase an approved policy, you have to pay a fine.

    Unless we’re all getting tax breaks for not speeding.

    They looked at that too. Is it a crime to not buy health insurance?

    Nope, so it’s not a fine.

  50. The larger point is that the Congress wrote the law to be one thing. And the Chief Justice rewrote the law to be something else in order to bring it into Constitutional compliance, and you’re pretty much okay with that.

    I find your lack of faith in the Court lacking. And in this case that’s a bit disturbing.

  51. There is an obvious distinction (obvious to anyone not playing semantic games) between a tax credit and a tax. All examples put forth (mortgage deduction, child tax credit) are examples of people being given credits for engaging in behavior. There is no example of a person being taxed more for not engaging in a certain behavior. The renter is being penalized only insofar as he is not able to claim the same credit as the homeowner; however, he is not paying additional taxes on top of his income tax by being a renter (or not a homeowner).

  52. Long story short, this sucker is unconstitutional no matter how you cut. That Roberts played word games with the legislation is in a way worse than if he had just relied on the commerce clause.

  53. They looked at that too. Is it a crime to not buy health insurance?

    Nope, so it’s not a fine.

    Not a penalty either?

    If you have to pay a penalty for X, then how is X not a crime?

  54. A tax on what?

    Disobedience.

  55. The only reason the case got to SCOTUS in the first place was that it was NOT a tax.

    Oral argument that Roberts was present for. Or, did that go down the memory hole?

  56. They looked at that too. Is it a crime to not buy health insurance?

    Nope, so it’s not a fine.

    If it’s not a crime, why pay the “penalty”?

    Also, what paulzummo said.

  57. This is good. Daniel Foster:

    If the mandate is, purposively and functionally, both a tax and a penalty, then why does it not have to pass constitutional muster on both scores? Why is it enough that it (dubiously) skates by on the taxing power alone?

    I call do-over.

    No, not on the SCOTUS decision: on the entire piece of legislation.

  58. If Obamacare were legitimately constitutional under the powers of taxation, at least one of the other four conservatives would have seen it that way as well.

    If Alito and Thomas can’t see it, it’s not there.

    Particularly Thomas. But yes.

  59. Or the text was written to encompass both interpretations at once, in which case the law is a freaking mess as well as an ass.

    Read what Epstein wrote. If you really are to give deference to the legislature, then you take their word that the penalty they wrote and sold as a penalty is a penalty, and wasn’t written as both a penalty and a tax, which makes no sense to begin with, given that the procedures for passing a tax, and the precedent for taxing authority, were both ignored here.

    Roberts was wrong. And if you listen to him talk about his judicial philosophy, and then read what happened here in terms of what his motives were, you’d see that he was looking for a way to uphold this thing, then reasoning backward from that point.

    I wonder if he noticed that, though even some of the liberal Justices were making fun of tax argument during oral arguments, they all fell in line and went along with it in order to uphold the law.

    Pretty ideological of them, don’t you think, Mr CJ? Or does that only apply to conservatives who have a consistent judicial record for following the Constitution, a position you mock in your Atlantic fluffing piece?

  60. Furthermore, you can’t challenge a tax in court until someone’s had to pay it.

    The only reason the case got to SCOTUS in the first place was that it was NOT a tax.

    Now what?

    He answered that: in that case, it’s a penalty. Voila! It’s like a magic thing, filled with magic!

  61. I don’t disagree with that right-wing agenda, I disagree with their finding that the mandate is not a tax. A tax, written as a tax, argued as a tax, collected as a tax and called a penalty, is still a tax.

    Except when it’s both a penalty and a tax, and this is, simultaneously, somehow.

    I disagree with Alito et al, and I think they are the people reinterpreting the intent of the authors of the statute, who clearly meant to tax those who choose not to purchase health insurance in order to pay for steak dinners and hookers for government employees health insurance for Democrat voters politically privileged classes po’ folk.

    Yes, that’s what they wanted to do, but they knew they couldn’t do it with a tax, because people wouldn’t go for it. So they decided to try it as a penalty.

    If it’s legal as a tax (and it’s not), they should have been told to rework it as a tax. Instead, we are told it already is a tax, because it functions as one, even thought they wrote it as a penalty so that it wouldn’t be a tax.

    Much like using “spade” or “spook” is racist, because it functions that way, even if it wasn’t meant that way.

    If the gov’t’s power to tax (it’s overwhelming power to tax) can be limited by court because of how the tax is labeled and how that label is interpreted by a court committed to finding a statute unconstitutional, is that not legislating from the bench?

    Begs the question: who says the Contitutionalists on the Court were “committed to finding the statute unconstitutional”? All they did was take Congress at its word. Which shows me they were committed to interpreting the law that was given them without being bogged down by mandates to appear collegial or do their best to make the law constitutional.

    Worse yet, Roberts begged Kennedy to defect so that he could get a 6-3 ruling — just as Nancy Pelosi and Allah had both predicted.

    Roberts was worried about his legacy and protecting the integrity of his Institution. And in so doing he befouled them both.

  62. “Roberts was worried about his legacy and protecting the integrity of his Institution. And in so doing he befouled them both.”

    I’d just like to point out that Barack Obama is happy to help Roberts with his mission to destroy the honor due the Court, since notice, Obama denies Roberts’ conclusion and has not a qualm saying so. “Court?,” says Obama, “Piffle!”

  63. you’d see that he was looking for a way to uphold this thing, then reasoning backward from that point.

    Totally agree. I have no problem with this statement at all. He says so, right in his opinion.

    But a penalty can be assessed using congress’s taxing authority, and the mandate fits this bill.

  64. But a penalty can be assessed using congress’s taxing authority, and the mandate fits this bill.

    Only if you believe that taxing disobedience — that is, a failure to buy what the government tells you to buy — is one of the Congress’s Taxing authorities under the Constitution. Which it isn’t.

  65. Not “taxing disobedience”. It’s “an incentive to modify behavior” like the tax you would pay if you choose to buy those nasty cigarettes, or the tax break you don’t get if you buy an 80 gallon hot water heater, or if you don’t buy solar panels for your roof.

    But yeah, a tax on disobedience.

  66. If you choose not to take advantage of tax breaks, that’s not the same as being fined/ penalized /taxed for not buying what the government tells you to buy. You aren’t getting more money back w tax breaks; with fines/penalties/taxes, you’re being told you need to pay an additional tax.

    Go ahead, pass RobertsCare with a “nudge” tax break. Give people a choice.

    There is literally no end to the power opened up here: don’t want to help save the earth by buying an earth-friendly automobile (as defined and designed by government motors)? Fine, that’s your choice. But it’ll cost you $2000 a year. Same if you don’t want to

  67. Wasn’t.

    Written.

    As.

    A tax.

    Again, from Foster:

    Purpose and function are different things. If I use my old sneaker solely to kill cockroaches, its function is that of an insecticide, but its purpose — the reason it came to be — remains the covering and protecting of feet. So it could well be the case that the purpose of the mandate is to compel behavior, but that it will function — if millions elect to pay it rather than obtain insurance — primarily as a tax.

    They’re playing Schroedinger’s cat with the tax/penalty, and in such a case the law should have been laughed out of court for its absurdity.

    By the first court to consider the challenge.

    But if you want to cite all those other punitive taxes as justification for the penaltax, then it makes it obvious that using the tax code to “nudge” the populace this way or that is fundamentally wrong.

    Out they all go, say I. Flat tax or no tax.

  68. It’s “an incentive to modify behavior” like the tax you would pay if you choose to buy those nasty cigarettes, or the tax break you don’t get if you buy an 80 gallon hot water heater, or if you don’t buy solar panels for your roof.

    Except it’s not an incentive, it’s a disincentive.

    If you pay the sin tax, you get to indulge the sin. If you engage in the moral preening version of conspicuous consumption, like buying that Chevy Volt or those solar panels, or low-E glass replacement windows, you get a reward in the form of a credit.

    Getting sin taxed for NOT participating in the progressive morality play isn’t right because it’s not a sin to not participate. (At least it didn’t use to be). And the only reward for participation here, I guess, is progressive virtue as it’s own reward.

    Like somebody said, Roberts blew the hinges off the door of the taxing power here.

    And I for one am not looking forward to the day I have to pay some bullshit environmental tax on my family van to subsidize some urban metrosexual poofter’s ‘lectric clown car —a day, by the way, which is infinitely closer than it was just a week ago.

  69. Someone mentioned this earlier, but the real slight of hand here is the definition of the very subject. Health insurance.

    Health insurance is not a right, nor a duty, it’s a product you buy.

    Seems we’re already fighting on enemy ground by accepting it’s a done deal that healthCARE is a right government should guarantee. And now we just have to figure out how to fund it.

    Fuck that. We’re talking about private corporations that fascists want to control, and they’re doing it by buying off the corporations with mandatory purchase of their product.

    It’s their classic MO. They strangle a market with onerous regulations, and competition distorting public subsidies, then when prices soar and quality becomes a relative thing, they swoop in and take control.

    It’s what they did with the auto industry, the housing industry, the banking industry, the universities, and now they’re working on “healthcare”.

    After that, the world is their oyster. May they choke on it.

  70. The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not. See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible penalty for failure to make campaign-finance disclosures);§5761(c) (IRS-collectible penalty for domestic sales of tobacco products labeled for export); §9707 (IRS-collectible penalty for failure to make required health-insurance premium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a “tax” was in fact a penalty. “[I]f the concept of penalty means anything,” we said, “it means punishment for an unlawful act or omission.” Id., at 224. See also Lipke v. Lederer, 259 U. S. 557 (1922) (same). Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v),(f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scope—a feature that would be quite extraordinary for taxes.

  71. It’s “an incentive to modify behavior” like the tax you would pay if you choose to buy those nasty cigarettes,

    Bold to show the difference. This is like a tax you pay if you don’t by something. That’s a distinction with a difference. There is an infinate amout of things you don’t buy.

    or the tax break you don’t get if you buy an 80 gallon hot water heater, or if you don’t buy solar panels for your roof.

    A tax break is an incentive, which presumes choice (see bold above). This is more like the government telling you to buy solar panels or they will install them and the IRS will make you pay anyway. Is being forced to buy them yourself a “break”?

  72. Just to throw another log on the bonfire: End the education monopoly. Education is too important to entrust to the wasteful, corrupt and bumbling hands of government.

  73. As to purpose. What hasn’t been looked at directly is the purpose of the act as a whole entity. To paraphrase Lecter on Marcus Aurelius, Of each particular thing ask: what is it in itself? What is its nature? What does the ACA do?

    The ACA was designed and its proponents declared that its purpose was to eliminate privately insured healthcare in the US and do so in a fashion that used stealth so as to not arouse the suspicions of the electorate as to its true purpose until it was too late for electoral remedy such as brought down the previous attempt in the 90s.

    Does this manuever and its goal pass Constitutional muster? Can Congress be allowed, even encouraged to subvert the will of the people as shown through the election process?

  74. “Does this manuever and its goal pass Constitutional muster? Can Congress be allowed, even encouraged to subvert the will of the people as shown through the election process?”

    John Roberts’ answer is: Definitely yes! And what ever will of the people are you talking about?

  75. Not “George” that’s for sure.

  76. They looked at that too. Is it a crime to not buy health insurance?

    Nope, so it’s not a fine.

    It wasn’t a crime to not buy health insurance, until Congress enacted a law that assesses a penalty for it.

    Then it became one. They can argue otherwise, but if so they are lying.

  77. Look, in my opinion there are huge parts of the act that break existing laws, the reporting issue for example, the only thing I am arguing is that the penalty passes muster as a tax. It was always meant to be a tax, it was based on Romneycare, and that’s a tax, its a tax. We got gamed by people who can parse the verb to be.

    I normally agree with Jeff and defer to his judgment in matters of intentionalism, but this penalty was intended to be a tax, and unfortunately congress has the power to tax in almost any way, with almost no exceptions. It sucks, but the reason that power was granted is because there’s a a remedy, even if it is highly doubtful that remedy will ever be applied.

    Btw I’ll be putting this phone away in about five minutes for the fourth, you all have a great one, I’ll be back Friday. i’ll be back to Dick jokes and non-sequiturs, prolly.

  78. “. . . and unfortunately congress has the power to tax in almost any way, with almost no exceptions.”

    We should look at this provision in the Constitution. Free Congress! Remove their chains!

  79. Wasn’t.

    Written.

    As.

    A tax.

    They lie. Take the Lilly Ledbetter Fair Pay Act. What did it do? Require fair pay? No. It moved the statute of limitations.

    they have a long history of making things look like something other than what they want them to actually do. While divining intent, should we not factor in that they’re lying cocksuckers?

  80. While divining intent, should we not factor in that they’re lying cocksuckers?

    To save the law?

    No.

    They intentionally didn’t present it as a tax. Good. Accept them at their word.

  81. the only thing I am arguing is that the penalty passes muster as a tax.

    And yet Landmark Legal filed a brief showing how it was not, under any precedent or any taxing authority.

    Meanwhile, those who passed it did so as a penalty. What it may or may not be intended as we don’t know. We have the legal conventions to go by when interpreting — and they wrote it as a penalty.

    But you and John Roberts say it’s a tax, and Congress has the broad power to tax anything and everything, including not buying what Congress tells you to buy.

    Again, you believe they have this power under a Constitution written by men who’d just fought a revolutionary war to resist tyranny.

    I don’t. I know Roberts doesn’t. I know what he did and why he did it. Simple as that.

  82. It was always meant to be a tax, it was based on Romneycare, and that’s a tax, its a tax.

    See: George Orwell says July 3, 2012 at 12:05 pm

    the nail in the coffin is that the mandate and pen­alty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.”

    Why was this penalty not found in Title IX? Because it was not meant to be a tax, it was never meant to be a tax, and it can’t be “reasonably” interpreted as a tax.

    Whatever, the Supreme Court is now part of the legislature, and we gotta deal with Robertscare.

  83. To save the law?

    No, to divine their intent.

    As for Roberts, whichever way he fucked us, we’re still fucked. Whether he threw open the gates of Commerce Clause powers or taxing powers, he still fucked us. To save the law. But that isn’t my question.

  84. they have a long history of making things look like something other than what they want them to actually do. While divining intent, should we not factor in that they’re lying cocksuckers?

    No. See my 4:48.

  85. And yet Landmark Legal filed a brief showing how it was not, under any precedent or any taxing authority.

    This doesn’t exist under any precedent. Inactivity has never been a revenue raising event. There is no precedent for this, anywhere.

  86. it’s unprecedented like when that guy wrapped all those islands up in pink plastic

  87. This doesn’t exist under any precedent. Inactivity has never been a revenue raising event. There is no precedent for this, anywhere.

    That’s the point: there’s no precedent for it. Further, it doesn’t fall under any of the Taxing authority granted to Congress by the Constitution.

  88. That’s mostly to my point, geoff.

    The ACA was designed and its proponents declared that its purpose was to eliminate privately insured healthcare in the US and do so in a fashion that used stealth so as to not arouse the suspicions of the electorate as to its true purpose until it was too late for electoral remedy such as brought down the previous attempt in the 90s.

    That’s absolutely what they were doing but Obama and Congress told us they most certainly weren’t doing that. Sure, they may have said that to their choir, but that’s not what they told America. So what was their intent? What they told us they were doing or what they were actually doing?

  89. That’s the point: there’s no precedent for it. Further, it doesn’t fall under any of the Taxing authority granted to Congress by the Constitution.

    Agreed. Which is why I think the tax vs. penalty debate is mostly moot, with the exception of the fact that if Obama says it isn’t a tax, he’s saying it’s unconstitutional, as per this asinine ruling and we should beat him about the head and neck with that.

  90. Their intent, I thought, was to provide free health care to all Americans, by gradually bending the cost of the health care curve down and down until it wraps around to meet the cost of no health care at all. These are some humanity loving people, these progressives.

  91. No, to divine their intent.

    There are legal conventions meant explicitly to guard against the ADA’s idea of intentionalism, wherein one can secretly mean the opposite of what one says one means and the court, should it find out, must honor that intent, despite the fact that that intent was never signaled.

    If we assume the Democrats are always lying, then we will look at everything they pass ironically. There is no (official) justification for that. For purposes of law, we have to take what they signal as their intent as their intent.

  92. Since the Supreme court now shares responsibility in writing law with the EPA, Obama creates law though executive privilege, and congress now passes laws they don’t read, do we really need congress anymore?

  93. Oh, also, the House hasn’t had a budget passed for how long, and no one even pretends we should have one anymore. Why have’em?

  94. My point is that if they lied about it being a tax, because if they called it that then the public would have stopped them, then they lied in order to end around the only other authority besides the Court which could hold them to account. They lied and passed an unconstitutional law because doing it in a constitutional manner would have been political suicide.

    The lie on the tax/penalty was done to bypass one form of political scrutiny, a scrutiny they knew they couldn’t withstand. So they lied and in so doing made it so it should not have passed muster as constitutional. Then, having played the “lie” thug card to the people, they played another thug card on the Court and the weakest reed folded.

    This doesn’t even get to the level of the lie as to the purpose of the entire act itself which is a whole ‘nother constitutional and electoral kettle of fish but is in the same neighborhood, that being the deception of the public for political ends.

  95. If we assume the Democrats are always lying, then we will look at everything they pass ironically. There is no (official) justification for that.

    I’m talking practically, not legally. I’m talking about their intent.

  96. Why do we care at this point whether it’s a tax or a penalty or whether Roberts folded?
    It is what it is and it’s the “law of the land”. So, what do we do about it?
    At this point I’m trying to decide what “laws of the land” I am going to honor. Having to pay quarterlies instead of allowing withholding, I have some element of choice, albeit until next April 15th. Guess that’ll get me past the election.

  97. Why do we care at this point whether it’s a tax or a penalty or whether Roberts folded?

    levin calls it a cucumber

  98. The masters of the universe, because they are masters of the universe, will of course not be the least surprised when their powers are taken away by those from whom they acquired them, nor less because they have seen this all play out before. Or would their intention be somehow to retain their powers against all comers, be the retention licit or no?

  99. Lee, that would be the Senate that has failed to pass a budget for three years. If they can be derelict in their duties, I suppose I could fail to pay taxes for three years and I’d be okay. Right?

  100. sdferr, of course this is about retaining power. History is pretty good precedent. Only way to get it back is to pry it from their cold, dead hands.

  101. They remember how their progressive hero Benito ended up, do they, hanging upside down by his heels? And how quickly such transformations come about? They recall all this, because they care.

  102. National Soros Radio helps to tamp down some of the more febrile wingnuttery afloat

    Since the announcement of the court’s decision last week, conservatives have been pushing the notion that Roberts did something of a last-minute flip. But the evidence to support that is less than convincing.

    if National Soros Radio didn’t exist we’d have to invent it, especially for when we needed help tamping down some of the more febrile wingnuttery afloat

  103. hey what’s funny is that our harvard trash chief justice and this national soros radio propaganda whore get paid out of the same kitty!

    I just thought of that it’s so funny

  104. that Roberts did something of a last-minute flip. But the evidence to support that is less than convincing.

    so cbs news is wingnut territory now. geez kill trotsky already.

  105. national soros radio propaganda whore get paid out of the same kitty!

    roberts gets big hamburger money?

  106. “. . . there is a fury at the chief justice for, in essence, being more loyal to the Supreme Court as an institution than to an ideology.”

    Yes Nina, the Constitution is surely nothing if not an ideology.

    Silly cunt.

  107. there is a fury at the chief justice for, in essence, being more loyal to the Supreme Court as an institution than to an ideology.”

    is the “institution” an ideology?

  108. I’m talking practically, not legally. I’m talking about their intent.

    Practically — ironically — the one Justice looking to be collegial decided they lied in order to save the law; while the conservative Justices took them at their word and struck it down.

    There’s a reason when we’re talking about intent and interpretation, what you mean is not always what people think you mean, especially if you completely hide what it is you mean.

  109. especially if you completely hide what it is you mean.

    Obama on single payer health insurance

  110. Since the announcement of the court’s decision last week, conservatives have been pushing the notion that Roberts did something of a last-minute flip. But the evidence to support that is less than convincing.

    Conservatives? Less than convincing? Who’s gonna tell Joan Walsh?

  111. I could easily hide my desire for salt by asking for pepper, thus to confuse and perplex everyone around me, and then John Roberts would save me by passing me the salt, which is what I wanted all along but didn’t want anyone to know I wanted.

  112. There’s a reason when we’re talking about intent and interpretation, what you mean is not always what people think you mean, especially if you completely hide what it is you mean.

    Yes. That is and has been my point. They lie.

  113. then John Roberts would save me by passing me the salt,

    oh don’t be silly sc roberts would pass the tax or maybe the penalty it “depends” on the nyt/wapo.
    besides you killed gaia by cutting down trees.

  114. Practically — ironically — the one Justice looking to be collegial decided they lied in order to save the law; while the conservative Justices took them at their word and struck it down.

    Interpreting legislation and/or case law is a different beast than general interpretation. There’s a burden of clarity on the legislative signifiers that doesn’t necessarily exist on an individual. I recall going through all this back in the egret/dog called “boy” days. They’re getting paid to write shit we can all communally understand, what with us having to be subject to it and all. We should be able to figure it out with a dictionary. But, as we’ve established, they lie.

  115. LMC, this might help:

    The individual mandate penalty is certainly a “tax” as the word is commonly used. It is added on to your taxes, it goes from your income to the IRS, and no adjudication or other public action is necessary to assess it.

    In common usage this is a tax. For purposes of determining whether the Obama administration has kept its promise, it is a tax. But on the constitutional question, the dissent was entirely correct: This mandate is not a proper exercise of the power to tax “for the general welfare” because it is a penalty meant to enforce a mandate that cannot be sustained under the Commerce Clause or any other enumerated power.

    The constitutional issue partly overlaps with the popular one: We know for sure that if the Court rules it is a tax for constitutional purposes than it is a tax for popular purposes. The administration has to face the fact that the only reason its law was upheld is that has been ruled a tax for all purposes. But outside that overlap, there is ample room to insist that this mandate is a tax, and also a penalty, and also not a tax “for the general welfare.”

  116. I was largely in agreement with Mario Loyola’s earlier post but I’ll unabashedly sign right on to his latter one. I fully share his assessment.

  117. Home is where i want to be
    Pick me up and turn me round
    I feel numb – burn with a weak heart
    (so i) guess i must be having fun
    The less we say about it the better
    Make it up as we go along
    Feet on the ground
    Head in the sky
    It’s ok i know nothing’s wrong . . nothing

    Hi yo i got plenty of time
    Hi yoyou got light in your eyes
    And you’re standing here beside me
    I love the passing of time
    Never for money
    Always for love
    Cover up + say goodnight . . . say goodnight

  118. Re: Pablo 10:09. I agree also.

    The Democrats wanted to have their cake and eat it too. Roberts said it was possible to do it, but it’s not really.

  119. Obama and company (or do we just call them Chicago now?) make John Roberts’ escape pod, indeed . . . all he has to do is recognize it and jump aboard. Actually, doing something that real just might could save the reputation of the Court he has so damaged. But we know there’s no possibility he’ll see it.

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