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Saturday, June 30, 2012

The Robert Decision - The Ends Justifies the Means

Pity all those poor workers who don’t get to listen to Rush Limbaugh in the afternoons.  Had they been able to, they would have learned the frankly shocking details of how this case was handled.

This is the transcript from Rush's broadcast, where he talked about Byron York's column in the Washington Examiner:

"Byron York went and looked at the first day of oral argument. When you hear this, you are going to be angrier than you even are right now. You're going to relive the first day of oral arguments where they talked about this as a tax. And the court allowed the government to argue both ways, that it was a tax one day, and they allowed the government to argue the next day that it wasn't a tax. First two days of oral arguments are where you find the answer to all the inexplicable questions here.

RUSH: Byron York wrote his piece at the DC Examiner yesterday: "No one knew it at the time, but the key moment in the Supreme Court Obamacare case came on March 26, the first day of oral arguments, when few people were paying close attention. Before getting to the heart of the case, the justices first wanted to deal with what seemed to be a side issue: Was the penalty imposed by the individual mandate in Obamacare a tax?"

The first question the justices had for the lawyers: Is this a tax?

"If it was, the case would run afoul of a 19th century-law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it." Well, the Obamacare taxes don't implement until 2014. So on the first day of oral arguments, if Obamacare is a tax, the court would have to throw it out because nobody had paid the tax yet. So the first day of oral arguments, the justices want to know, they asked the government, is this a tax? The government said no. Because everybody wanted the case tried, everybody wanted it adjudicated and they wanted it adjudicated now.

"Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then." So on the first day of oral arguments, the government said, no, it's not a tax. Well, we could stop right there if we wanted to. We could stop after the first 30 minutes of oral argument, back on March 26th, skip everything that happened between then and yesterday, and then go to Justice Roberts' ruling, where he found it to be a tax.
What next stood in the way of a clear path to upholding the Affordable Health Care Act was a piece of legislation called the Commerce Clause.  This clause essentially says that you can’t “tax” or “fine” a customer for not purchasing a product.

 The Commerce Clause is an enumerated power listed in the U.S. Constitution:

Article I, Section 8, Clause 3:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

The Commerce Clause Power is often amplified by the Necessary and Proper Clause which states this Commerce Clause power, and all of the other enumerated powers, may be implemented by the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The Necessary and Proper Clause is the final clause of Article I, section 8. However, the Constitution is clearer about the role of the Congress vis-a-vis interstate commerce in Article I, Section 9, Clauses 1, 5 and 6, though the interpretation of Section 8 and Section 9 could depend on the circumstances presented by specific cases.
Questions over the range and applicability of the Commerce Clause have arisen in debate over the constitutionality of Obamacare.  The debate centers around whether Congress is authorized to require citizens to purchase health insurance from the private market, known as the Individual Mandate. Congress claims authority from the Commerce Clause. However, many opponents of the PPACA have claimed that the individual mandate exceeds Congress's authority thereunder, primarily on the position that the law attempts to define the non-purchase of insurance as “commerce”.
The Necessary and Proper Clause (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause) is the provision in Article I of the Constitution:
The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

SCOTUS voted against this provision for the Affordable Health Care Act, with the government arguing that the individual mandate was not a tax.  But then, Rush tells us, in order to get the bill ruled as a tax, the Supreme Court had to hire a third lawyer to argue that it was, in fact, a tax.  The bill is filled with taxes – 22 by last count – and it wasn’t hard for this hired gun to prove that it was or for Roberts to rule so.

What the decision finally read is this, with the summary first, followed by the actual written opinions of the nine justices:

“In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health.  One key provision is the individual mandate, which requires most Americans to maintain ‘minimum essential’ health insurance coverage.  26 U.S.C. #5000A.  For individuals who are not exempt and do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company.  Beginning in 2014, those who do not comply with the mandate must make a ‘shared responsibility payment’ to the Federal Government.  #5000A(b)(1).  The Act provides that this ‘penalty’ will be paid to the Internal Revenue Service with an individual’s taxes, and ‘shall be assessed and collected in the same manner’ as tax penalties. ##5000A(c), (g)(1).”


“1.       CHIEF JUSTICE ROBERTS delivered the opinion of the court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.

            The Anti-Injunction Act provides that ‘no suite for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U.S.C. #7421(a), so that those subject to a tax must first pay it and then sue for a refund.  The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate.  But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act.  The Affordable Care Act describes the payment as a ‘penalty,’ not a ‘tax.’  That label cannot control whether the payment is a tax for the purposes of the Constitution, but it does determine the application of the Anti-Injunction Act.  The Anti-Injunction Act therefore does not bar this suit.”

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

            (a)        The Constitution grants Congress the power to ‘regulate Commerce.”  Art. I, #8, cl. 3.  The power to regulate commerce presupposes the existence of commercial activity to be regulated.  This Court’s precedent reflects this understanding.  As expansive as this Court’s cases construing the scope of the commerce have been, they uniformly describe the power as reaching ‘activity.’  The individual mandate, however, does not regulate existing commercial activity.  It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

            Construing the Commerce Clause to permit Congress to regulate individual precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.  Congress already possesses expansive power to regulate what people do.  Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do.  The Framers knew the difference between doing something and doing nothing.  They gave Congress the power to regulate commerce, not to compel it.  Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerate powers.  The individual mandate thus cannot be sustained under Congress’ power to ‘regulate Commerce.’”

(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms…. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercises of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it.  Even if the individual mandate is ‘necessary’ to the Affordable Care Act’s other reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.

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.

            The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance.  But, for the reasons explained, the Commerce Clause does not give Congress that power.  It is therefore necessary to turn to the Government’s alternative argument:  that the mandate may be upheld as within Congress’ power to ‘lay and collect Taxes.’  Art. I, S.8, cl. 1.”

And so, SCOTUS turned to an alternative attorney to make that case, and then reasoned thus:

“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’ power under the Taxing Clause.

“(a)  The Affordable Care Act describes the ‘shared responsibility payment’ as a ‘penalty’ not a ‘tax.’  That label is fatal to the application of the Anti-Injunction Act.  It does not, however, control whether an exaction within Congress’ power to tax.  In answering that constitutional question, this Court follows a functional approach, ‘disregarding the designation of the exaction, and viewing its substance and application.’  United States v. Constantine, 296 U.S. 287, 294.”

In other words, the authors of Obamacare carefully avoided the word “tax” but since Congress can only “tax” not “penalize”  (any dictionary will tell you a tax is a penalty), the Court decided to assume that they meant “tax” so that the bill could pass.

(b)  Such an analysis suggests that the shared responsibility payment may, for constitutional purposes, be considered a tax.  The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations; as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.  None of this is to say that payment is not intended to induce the purchase of health insurance.  But the mandate need not be read to declare that failing to do so is unlawful.  Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.  And Congress’ choice of language – stating that individuals ‘shall” obtain insurance or pay a “penalty” – does not require reading S.50000A as punishing unlawful conduct.  It may also be read as imposing a tax on those who go without insurance.”

Further on in the decision, Justice Roberts states, “Congress may…’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.  Put simply, Congress may tax and spend.  This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate.  The Federal Government may enact a tax on an activity that it cannot authorize, forbid or otherwise control.”

“The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.  Art. I, S.8, Cl. 18.  We have long read this provision to give Congress great latitude in exercising its powers:  “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited with the letter and spirit of the constitution, are constitutional.”  McCulloch, 4 Wheat, at 421.

“Our permissive reading of these powers is explained by a general reticence to invalidate the acts of the Nation’s elected leaders.”

The ends justifies the means, in other words.

“Congress decision to label this exaction [the individual mandate] a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.”  Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.  See Russello v. United States, 464 U.S. 16, 23 (1983).

“Amicus (friend of the court, or the third attorney) argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax.  It is true that Congress cannot change where an exaction is a tax or penalty for constitutional purposes simply by describing it as one or the other.  Congress, may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy’s Clause constraint on criminal sanctions, by labeling a severe financial punishment a “tax.”  See Bailey v. Drexel Furniture Co., 259 U.S. 20, 36-37 (1922); Department of Revenue of Mont. V Kurth Ranch, 511 U.S. 767, 779 (1994).

“The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’ own creation.  How they relate to each other is up to Congress, and the best evidence of Congress’ intent is thte statutory text.  We have thus applied the Anti-Injunction Act to stator ‘taxes’ even where that label was inaccurate.  See Bailey v.  George, 259 U.S. 16 (1922).

The opinion goes on for over 200 pages, including the dissenting opinions.

“The Government advances two theories for the proposition that Congress had constitutional authority to enact the individual mandate.  First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause.  Under that theory, Congress may order individuals to buy health insurance to do so affects interstate commerce, and could undercut the Affordable Care Act’s other reforms.  Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress’ power to tax.  According to the Government, even if Congress lacks the power to direct individuals to buy insurance, the only effect of the individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld as a tax.

“The Affordable Care Act is constitutional in part and unconstitutional in part.  The individual mandate,” Roberts writes, “cannot be upheld as an exercise of Congress’ power under the Commerce Clause.  That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.  In this case, however, it is reasonable to construe what Congess has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.  Such legislation is within Congress’ power to tax.”

Thus is America railroaded into Obamacare, with its 2700 pages of onerous regulations and taxes.  Though Roberts’ upholding of Obamacare gives the GOP more leverage in the upcoming election, reading his decision proves that it was intentional, that the means justifies the ends, and that if one means doesn’t meet the Constitutional test, another will.

What is the meaning of tax?  What is the meaning of penalty?  What is “is”?  Roberts consciously determined that this law must be inflicted upon American citizens the same way Nancy Pelosi declared that the only way to find out what was in the bill was to pass it first.

Such deceit should not be upheld.  But that seems to be the order of the day.  Lying, cheating, stealing, and other calumny have all been legalized.  As Rush says, even if we wish to overturn the ruling, who will we be facing but this same court.  According Rush, Roberts openly declared that in his own, personal opinion, Obamacare simply had to be upheld.

Rush was fuming, as should we all be.  We must not abrogate our duty as citizens this November.  We must unite, educate those ignorant of these events, and vote in a responsible President, Senate, and other legislators.


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