There was an interesting thing that happened during oral argument.

As the Affordable Care and Patient Protection Act (“ObamaCare”) was making its way through the federal court system, one of the lower courts had held the challenge could not go forward because the individual mandate was a tax and a nineteenth century law known as the Anti-Injunction Act forbid any challenge to a tax before someone had to pay that tax. The appeal of that decision was included in the number of cases that ended up becoming NFIB v. Sebelius, the actual name of the ObamaCare case (officially, the name is NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.).

There was one problem with that case…there was no one to argue why the case should not go forward under the AIA, so the court appointed an attorney to argue that the individual mandate was a tax and the case should be barred under the AIA.

The Solicitor General, arguing for the Administration, argued that the mandate was not a tax, because, like the plaintiffs in the case, the Administration wanted the case with all of its political implications to go forward. However, the Solicitor General’s briefs argued that if the Court did not find that the mandate was justified under the Commerce Clause, it should uphold it under Congress’s taxing powers.

Justice Samuel Alito actually asked the Solicitor General, “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”

The Solicitor General answered, “No.”

After Thursday’s decision, the answer will, unfortunately, be, “yes.”

Roberts did not pull this whole tax argument out of the air. In the beginning of his opinion, Roberts states, “That is not the end of the matter. Because the Com­merce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to ‘lay and collect Taxes.’ Art. I, §8, cl. 1… the Government asks us to read the mandate not as order­ing individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.”

He goes on to say, “Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a rea­sonable one.”

Roberts also cited cases that showed the Court must see if there is ANY justification for NOT striking down a law, as a law passed by an elected legislature representing the people should be so frivolously thrown out. Neither Scalia nor any member of the minority, addresses those cases as to why they do not apply.

Roberts writes, “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, ‘every reasonable construc­tion must be resorted to, in order to save a statute from unconstitutionality.’ Hooper v. California, 155 U. S. 648, 657 (1895).”

Nowhere in the opinion does it call into question the fact these cases compel the Court to look for a justification that could hold the law to be Constitutional. Scalia just skims over it simply by calling Roberts’ justification a “re-write” of the law, but notes that generally, the Court will strain to find a law constitutional.

“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 un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though 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)).”

However, I take issue with Scalia on that conclusion based, not only on some of the arguments Roberts uses, but also on the fact the first political arguments against ObamaCare was it was really “tax increase” disguised as health care reform.

In an October, 2009 op-ed, The Washington Times said, “If it wants, Congress can try to impose a tax but not ‘treat’ it as a tax. But the American people know when they are getting taxed — and when they are getting mistreated. And the American people still can, and will, vote out of office the congressmen responsible for the mistreatment

In another op-ed, John McClaughry, Vice President of the Ethan Allen Institute, stated, “In a startling development last week, the Obama Justice Department, defending against a host of lawsuits to invalidate the ObamaCare law, declared that the law’s individual insurance mandate is not founded on the power of Congress to regulate interstate commerce. Surprise! It’s a new tax!”

Maybe it’s my stubborn conservative nature, but if I was calling something a tax in 2009-2010, I’m still going to be calling it a tax in 2012 and am not going to change because Scalia says so. Liberals have no problem calling something a tax today that in 2009-2010 they swore up and down was not. That’s the advantage to not having core convictions.

Roberts agrees that the tax is NOT a direct tax and refuses to characterize it as such. Scalia makes his argument by starting with the fact that the “Direct Tax” clause is, “famously unclear.”

However, one thing that is clear is I cannot agree with Roberts’ “ver­bal wizardry [that carries us] too far, deep into the forbidden land of the sophists” concerning how he got us to the tax issue, nor do I agree with the outcome of the case. However, I can see Roberts’ point and can easily, just as he did in the case, point to numerous other taxes that the government uses to influence our actions. However, what IS the Constitutional justification for it? Roberts doesn’t really say.

Truthfully, as the “tax” is based on income and family size, it would have been more likely to conclude it’s another income based tax. However, I would have to be a yoga master to twist and turn and contort the Patient Protection and Affordable Care Act to fit within that conclusion. Reading over that part of Roberts’ decision several times, I don’t understand what he’s trying to do.

Reading Scalia’s handling of the issue, I don’t think he understood what Roberts was doing either.

I don’t know if today Roberts could explain it.


If he can’t adequately explain where under the taxing power the individual mandate fits, he should have been in the minority (thus making it a majority) and have thrown out the law. But this is not based on a fundamental disagreement with his conclusion. It is based on I don’t know how to legitimately get to that conclusion. To me, from day one, this thing has looked a like a tax, smelled like a tax, and has been called a tax, I just don’t know how to make it LEGALLY a tax, and I’m not sure Roberts does as well. The difference between us is he can say it is simply be cause he (and four others) say so.

There is also the problem that if it is a tax, then the Anti-Injunction Act should have barred the case. Scalia makes that point, “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.”

Roberts’ argument falls apart here as well.

I have said over and over that a Congress that can influence your behavior by giving tax breaks can influence your behavior by giving you a tax penalty. That’s not based on a legal precedent, but based on simple common sense. Better yet, though we usually use this quote regarding welfare, it is germane here is well, “A government big enough to give you what you want is big enough to take away what you have.”

Scalia would disagree with my reasoning. He views a penalty as only existing in the criminal world, ie a fine. My thoughts are if you can get the same result by structuring it only slightly differently, then it has to be held to be the same action. I’ll explain further in a moment.

While I can see Scalia’s reasoning when he said, “In a few cases, this Court has held that a ‘tax’ imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty,” I can also see calling a “penalty” a “tax” when the “penalty” is administered such as this one is that the natural outgrowth of our policy thus far.

What if the individual mandate was labeled a “tax.” Is Scalia saying that would have made it okay? What if the individual mandate was handled by raising everyone’s taxes and then offering tax credits for everyone who buys health insurance? It would mean the policy would be just as far reaching and just as destructive, but completely Constitutional? But I agree that words have meanings and this Administration, headed by the “Constitutional Scholar” should have its agrument that it is a tax completely rejected because words in laws must have their plain meaning, but I am also not so myopic as to not see the full picture.

The silver-lining I see in this dark storm cloud of an opinion is that Roberts stopped further expansion of the Commerce Clause, which Ginsberg and the rest of the majority was so desperate to have. There are some conservative commentators who are dismissing that fact, but the Court has now emphatically stated that the Commerce Clause cannot be used to force people in to the market place. There is no doubt that a 5-4 decision striking down ObamaCare could have done the same thing.

However, at what cost? As one Court decision is based on the previous Court decisions, what future will this hold for Americans as the Court has vastly expanded the code? Yes, it was headed in that direction, already, but Roberts gave it a big turbo boost forward. And yes, the Court has reversed itself numerous times, and could with this decision. However, by denying the liberals the use of the Commerce Clause, the slow expansion of which Congress has been able to accomplish right under the noses of the American people, Roberts has allowed Congress to mandate everyone must eat broccoli or face the wrath of the IRS, an action that can only be carried by Congress as far as the people will allow it. After all, as Roberts’ stated, it’s not the Court’s job to protect the people from the bad policies created by the people they vote into office.

While Commerce Clause legislation may not incite the American people into action, tax issues typically do. As Scalia said in his opinion, “Taxes have never been popular, see, e.g., Stamp Act of 1765.”

Yes, thanks to Roberts, Congress can now, under the tax code, mandate you eat your broccoli, put solar panels on the roof of your house, drive the car it wants you to drive, send your child to the school it wants your child to go to or any other hosts of activities…or maybe not. The Supreme Court just may say that broccoli goes too far. But if the American people are vigilant, then such legislation will never pass. It is said a woman stopped Ben Franklin as he was coming out of the Constitutional Convention in 1787 and asked him, “What kind of government have you given us, Dr. Franklin?”

To which Franklin replied, “A Republic…if you can keep it.”

My hope on that Thursday morning was that ObamaCare would be struck down (my greater hope is that the Court would reverse Wickard v. Filburn as well). My fear was there would be a re-defining of the Commerce Clause as to render no act “Unconstitutional” regardless of how much it involved the federal government into the daily lives of individual Americans. I got neither my hope nor my fear. What we all got were two individual mandates, one for 2014, but also, more importantly, one for November of 2012. The individual mandate of 2012 can cancel our individual mandate of 2014, but that’s up to us to make that happen. It’s my Republic, but it’s up to me to keep it. It’s up to you as well.

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