2016 Postmortem
Related: About this forumRoberts Tips His Hand? Chief Justice’s Unexpected ‘Obamacare’ Reasoning
Did John Roberts Throw A Wrench In Major Argument Against Obamacare?
In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that hes entertaining the possibility that the health care laws individual mandate can be upheld on a constitutional basis thats different from the one supporters and opponents have made central to their arguments.
For over a year now, observers and experts have assumed that the courts final decision will hinge on the extent of Congress power to regulate interstate commerce. But the justices could also upend that conventional wisdom, and in a worrying sign for the plaintiffs on Monday, Roberts unexpectedly highlighted one way they could do that.
In an exchange with a plaintiffs attorney, Roberts suggested hes skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress power to impose the mandate springs from its broad taxing power.
The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesnt seem to make much sense, Roberts said, over strong objections from attorney Gregory Katsas. Its a command. A mandate is a command. If there is nothing behind the command, its sort of, well what happens if you dont file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
That wasnt what the challengers wanted to hear... <SNIP>
Full article here: http://tpmdc.talkingpointsmemo.com/2012/03/did-john-roberts-throw-a-wrench-in-major-argument-against-obamacare.php?ref=fpa
dkf
(37,305 posts)I've heard corporations view it that way and will weigh the cost of the penalty vs the cost of providing insurance. The thing is we've now given our employers the comparative figure to base the decision on. I'm not sure if this is good for us.
grantcart
(53,061 posts)DCBob
(24,689 posts)That sounds better to me.
zipplewrath
(16,646 posts)The constitution is far less concerned with the term "tax". Law, on the other hand, cares deeply. What Roberts is getting at, and why I suspect alot of constitutional scholars don't think this case has much chance, even with this court, is that the government has the power to take your wealth to pay for stuff that is in the national interest. They are limited in their ability to do things "disproportionately", especially with respect to the states. Can't tax one state more than another just because they don't like 'em. But it would seem well within their authority to have a fee/tax/charge whatever for "health insurance" and allow an exemption, or "a payment in lieu of" to an insurance company instead.
I don't LIKE the mandate, but I'm dubious it is unconstitutional. Maybe it SHOULD be unconstitutional, but I'm dubious the way this one is structure that it is. As was stated in the courts yesterday, if you don't buy insurance, you pay a fee/fine/tax/penalty. That's it. You aren't guilty of a "crime" or of any "civil violation". You pay the government, not an insurance company. And there is even an "inability to pay" consideration that "exempts" people from the obligation. It's abominable, but probably legal.
former9thward
(32,082 posts)OBAMA: No. That's not true, George. The for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase.
http://abcnews.go.com/blogs/politics/2009/09/obama-mandate-is-not-a-tax/
DCBob
(24,689 posts)If one decides to go against the mandate then those individuals must pay a fine which is levied as a tax.
former9thward
(32,082 posts)We will see what the SC says.
DCBob
(24,689 posts)just saying it a different way.
former9thward
(32,082 posts)You say it is a mandate when that suits your purpose and say it is a tax when that suits your purpose. President Obama did not equivocate.
DCBob
(24,689 posts)I think they will rule its simply a legislative matter that is under the jurisdiction of Congress. End of story.
former9thward
(32,082 posts)said it appeared from comments that all the Justices agreed it was not a tax. So if that is true they will move on to the meat of the matter.
elleng
(131,138 posts)Laura PourMeADrink
(42,770 posts)"this is required" of citizens....if you do not comply, XY and Z will happen...(fee, tax, whatever)
The Prez is just shunning the label tax for obvious reasons.
elleng
(131,138 posts)the penalty for not complying is not a tax. It is 'collected' through the IRS for purposes of ease of collection.
elleng
(131,138 posts)The mandate is not a tax, its a requirement, and the fine/penalty is collected thru IRS for ease of collection; it is not levied as a tax.
quaker bill
(8,224 posts)may arise from the same place.
If government taxed you, and then allowed you to pick a health plan from the exchange and then paid for it with the tax they collected from you, you would end up in exactly the same place. The exact same people would get the exact same dollars, but the argument would be about a "tax" instead of a "mandate". The program could be sructured precisely the same and the difference would only be semantic.
Does constitutionality of this program hang entirely from semantics? This is where I think he is coming from. He is poking at semantic distinctions that make no difference in regard to impact. Is it a penalty or a tax? Either way, it is $1000 out of your pocket... (the "penalty" in this case is scaled to income, not infraction.. so it is more similar to a tax than a fine in application)
Major Hogwash
(17,656 posts)The comments made by the other Supreme Court judges made that very clear.
joshcryer
(62,276 posts)Tax increase is right wing propaganda.
ellisonz
(27,711 posts)Like President Obama is going to come out and say he increased taxes on those without health insurance.
Kablooie
(18,641 posts)They cant hear cases about taxes until an actual case involving the tax is brought to court.
elleng
(131,138 posts)ellenfl
(8,660 posts)DFW
(54,445 posts)Roberts and Alito NEVER met a corporation they didn't like (or an individual they did like). If the big
insurance companies want the law struck down, chances are, it will be. We can only hope this might
be the big exception to the rule, but so far, that has proved about as effective as hoping for abstinence
in a Nevada brothel.
ellenfl
(8,660 posts)iirc, it was put in the bill for them after consultations with the admin.
ellen fl
Laura PourMeADrink
(42,770 posts)elleng
(131,138 posts)kind of geeky that way.
Were you able to listen to the proceedings today? C-Span has them, and will broadcast them tonight.
More tomorrow!
Laura PourMeADrink
(42,770 posts)late headlines....Obama Healthcare in Trouble....In Jeopardy...Justices have serious issues...
blah blah blah.
It is so sad...that it is turned into a dirty word. My father-in-law, who gets us to pay for
his great pension and healthcare (ex military who never saw a second of action) dissing
efforts to get affordable care for others. Insanely hypocritical.
By the way, he and I are always at odds about politics. He is 100% convinced Obama
will be defeated. So we bet. A local restaurant has a limo you can pay for to pick you up and
drive you to and from the restaurant. I can not wait to see him pull up in front of
our house and shell out all the money for the limo and dinner.
Major Hogwash
(17,656 posts)And that won't stop the healthcare law to be enacted the way it was written.