The Supreme Court's Anti-ObamaCare Dissenters Take Down the Argument That ObamaCare's Mandate Is Constitutional As a Tax


In the majority opinion in today's Supreme Court health care ruling, Chief Justice John Roberts ruled that the law's health insurance mandate is constitutionally valid as a tax, despite the fact that the law itself does not describe the provision as a tax. 

In a joint dissent, Justices Kennedy, Alito, Scalia, and Thomas beg to differ:

Our cases establish a clear line between a tax and a penalty: "'[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.'" 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. When an act "adopt[s] the criteria of wrongdoing" and then imposes a monetary penalty as the "principal consequence on those who transgress its standard," it creates a regulatory penalty, not a tax.  

Prior to the Supreme Court, nearly all of the judges who had ruled on the law—even those who deemed it constitutional—agreed that whatever else the mandate might be, it was clearly not a tax

Chief Justice Roberts and the rest of the majority also managed to rule that the mandate was not a tax, at least for the purposes of the Anti-Injunction Act

NEXT: Why the GOP Will Wish It Could Lead with Ron Paul After This ObamaCare Ruling

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  1. You know, when you fuck me in the ass, you can call it a strawberry tart but my ass still hurts.

    1. Hey guys, did something big go down today? WhadImiss?

      1. Two U-Dub guards in the first round. I think Diana Ross may have died, since people have been talking about the Supremes all day. And Nadal lost.

        1. Nadal's loss was definitely the supreme upset of the day, right?

          1. As far as courts go, it certainly was. I was surprised he wasn't #1 after the French Open. Tennis is oddly consistent in its elite.

  2. so very fucked

    As president, Mitt will nominate judges in the mold of Chief Justice Roberts...[Roberts] hold[s] dear what the great Chief Justice John Marshall called "the basis on which the whole American fabric has been erected": a written Constitution, with real and determinate meaning. The judges that Mitt nominates will exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written. And his nominees will possess a demonstrated record of adherence to these core principles.

    1. I'm betting that's going to be airbrushed in a hurry.

  3. Because it's a tax, that's why.

    1. It's a cookbook!

      1. Nice Twilight Zone reference :-).

    2. tax is quite synonymous with 'fuck you', so that sounds 'bout right.

    3. It's a floorwax and a dessert topping!

  4. Gives a whole new meaning to "Si se puede!/Yes We Can!"

    Oh yes they can... and they will.

  5. So the title of that movie with Jack Nicholson is really "Mars: A Tax"

    Got it

  6. "Chief Justice Roberts and the rest of the majority also managed to rule that the mandate was not a tax, at least for the purposes of the Anti-Injunction Act. "

    The sad thing is, when I read the reasoning, it sort of made sense to me. Blerg.

  7. Is it too early to believe the conspiracy theories that Roberts was bribed, blackmailed, or in some other way coerced into "changing" his decision?

    1. Yes.

      1. Crap. I am so ready for a new conspiracy after a decade of this 9/11 BS.

        1. I think he probably just reads too many newspapers. And he wanted all those "Constitutional scholars" to think he's cool.

          1. Roberts said that it's not the SC's task or prerogative to protect us from our own political follies. He's right. How did ObamaCare become law? The bigger gang in Congress had the votes, and the voters put that gang in place. People hate representative government when they lose and love it when they win.

        2. Fast and Furious.

          1. That is not a conspiracy theory, it is a real DOJ conspiracy.

              1. The unicorn has no horn.

                1. Haha

      2. Yeah.. um its way too early for any of that nonsense.

        *quietly puts away tinfoil hat*

    2. No, no, no; The new theory is that his seizure medication made him do it.

      1. I suggest that he be tested for using bath salts.

        1. beat me by that much.

        2. Ah, but see... then we might just find out that only marijuana was in his system. And then of course, the evil weed made him do it.

    3. It's very reasonable to believe that he changed his decision, but things like political pressure explain it easily as well.

    4. There's a lot of parts of the dissent that call the four liberals' opinion the Dissent, and a surprising amount of vitriol aimed at the Chiefs by Ginsburg.

    5. Suki,
      Blame bath salts.

    6. No, far easier to blame Bush for being a dumb-ass and naming a squishy guy like him to the court

    7. I heard that they blackmailed him by threatening to expose his pederasty.

      Not that I believe he's a kid fucker.

  8. Let's go, Staffers! We need another ObamaCare post! Stat!

    It's not every day Libertarians get to wallow in sorrow. It's like every other day!

    1. You don't go out wallowing in sorrow dressed like that? On a weekday?

      1. Is this a... what day is this?

  9. Chief Justice Roberts and the rest of the majority also managed to rule that the mandate was not a tax, at least for the purposes of the Anti-Injunction Act.

    Can we get a full rundown of tax/nontax?

    Not a tax to pass it w/o raising taxes.
    Not a tax to start it in the Senate and not the House.
    Not a tax for the Anti-Injunction Act.
    Not a tax when we claim Obama is taxing the uninsured.
    But a tax to make it Constitutional.

    1. Started in the House. They used a vehicle to do so. It's bullshit, but a common one. Shell bills.

      1. Sounds like a hybrid vehicle.

    2. By jove, I think he's got it!

  10. One problem with calling it a tax is what sort of tax it is. Only certain types of taxes are authorized: income, excise, duty and impost, and direct. Direct taxes are ill defined, but must be apportioned in a way that this is not. Calling it an excuse tax, or duty or impost, requires waving away the activity / inactivity distinction that Roberts accepted with the Commerce Clause.

    I conclude get calls it part of the income tax; sadly, with all the loopholes there this does fit in. If we had a better tax code maybe not.

    1. Calling it an excuse tax...

      An "excuse" tax - that's it!


      1. Stupid phone. SwiftKey suggestion.

      2. excuse tax

        Rc'z law at it's finest.

    2. Only certain types of taxes are authorized: income, excise, duty and impost, and direct.

      You sure about that? That's not how I read it. The original Constitution seems to treat taxes, excises, duties, and imposts as four distinct things. While the "tax" category is forced to be apportioned to the states based on the census, a restriction that was, of course, lifted by the 16th.

      1. http://en.m.wikipedia.org/wiki.....#section_2

        The way you read it, while I can see it, is not how the courts have as I understand. Direct tax has a meaning different from indirect taxes. Event taxes have a meaning, but Roberts embrace of the activity / inactivity distinction would seem still to cause problems.

        Except the income tax has so many odd provisions already.

      2. My understanding is that state of being taxes, that is, non event taxes, are generally direct taxes.

        The income tax amendment does partially solve the problem, even though I am not happy with shoving random provisions into an income tax.

    3. Suppose the government were to raise income taxes on everyone, and then give a deduction to people who have health insurance?

  11. Can't wait til they can tax us for not buying US Treasuries.

  12. I can't wait until they can tax us for not purchasing US Treasuries.

    1. I plan to just buy everything out there to avoid such possibilities.

      1. Aggregate demand thanks you.

    2. The Fed is already taxing us for not buying gold and silver.

  13. Classy: "it's constitutional. Bitches."

    - Patrick Gaspard, Executive Director of the DNC, former Obama administration Director of the Office of Political Affairs

    1. That might make good campaign fodder, if not for Romney than certainly for Johnson. Imagine an ad that is a montage of all the law's faults with that tweet being reiterated across the screen.

    2. It's a really odd boast, considering their major argument was ruled unconstitutional.

      It's as if I went on and on about how my football team's star QB was going to kick your team's ass, but then he throws a couple interceptions and gets yanked, the second guy does the same, then the unknown third stringer ekes out a victory. I wouldn't exactly get to say, "ha ha, told you so."

      1. Or, actually, your defense won it with a couple of turnovers returned for TDs.

      2. I'd be ashamed of losing to the third string QB.

    3. You expect people that basically want citizens of the country to be slaves and subjects to it, beholden to the federal government to be classy?

      Not that this country ever really lived up to it's name. But the last vestige of freedom pretty much went out the window today.

      1. It is difficult to free people from the chains they revere.

        1. Nah 0X90, A Serious Man got it right as the illusions enable the chains to be put on....

          I love that ASM, gonna steal it.

      2. Change vestige to illusion and we'll be in agreement.

    1. Can I wear my Deutschland football jersey? Two birds with one stone and all.

  14. The insurance industry has bought a lot of favors from the government over the years, but this is the first time I can recall that private corporations were given the power to collect a tax.

    Looks like the Tenth Amendment Center is right: the court can't be trusted to EVER rule against any usurpation, and all we have left is nullification.


    1. I swear, the next Obama supporter that says to me "Corporations are evil!" gets punched in the mouth.

      1. Mouth? We have to have a talk CockGobbla.

    2. But the penalty, er tax, er penaxalty, is collected by the government and not actually given to the health care insurers/providers. So they get all the cost of having to take on people with preexisting conditions, but the penaxalties those people paid for years prior to needing care goes to the government.

      This model will not hold, unless the penaxalty is high enough to discourage this free riding, in which care by the court's logic it will no longer be a tax but a true penalty, and thus unconstitutional.

      1. There will be a "lock box". You know, like Social Security.

    3. I think you're seriously misunderstanding the majority's argument. They're saying the mandate "responsibility payment" or whatever it's called is the tax, not that insurance premiums are the tax.

    4. They don't receive tax revenues, they just receive the benefit of the incentive effect of taxation. Sadly, this is nothing new.

  15. No one here gets it. You've got your sales tax and your no sale tax.

    The government taxes your labor, your savings, your purchases and now, for what you could have bought.

  16. You know, I finally get it. The US has invented the PERFECT authoritarian society. They have managed to make authoritarianism look pretty and wholesome and that way, anyone who rails against it or stands up to it looks like the bad guy and a whacko. It's fucking, sheer genius! They managed to make tyranny feel warm and fuzzy - at least enough people that anyone who is bothered by it is the equivalent to the unibomber or Tim McVeigh. The US has managed to achieve what Hitler and Stalin and Mussolini could only dream of - the perfect utopian dystopia.

  17. As much as Kevin Carson pisses me off sometimes, he sums it up nicely:

    Contrary to outraged cries from Republicans that it's some sort of radical departure from our "free enterprise" system, Obamacare is in fact a direct continuation of the bipartisan neoliberal consensus of the past thirty years. The guiding principle of this consensus is the use of state power to protect corporate profits ? which consist mostly of rents on artificial scarcity ? from the radical deflationary effects of technologies of abundance. In the spirit of the original American state capitalist, Alexander Hamilton, this consensus seeks to maintain the value of the enormous concentrations of land and capital owned by the rentier classes, and guarantee the returns on them

    So our choice is not one between a healthcare system administered by the state, and one administered by Columbia HCA, Pfizer and Kaiser Permanente. Those are really just two sides of the same coin, with ordinary people locked into dependence on unaccountable state and corporate bureaucracies that keep healthcare artificially scarce. Obamacare is actually a corporate welfare program for the big healthcare corporations. The real choice is between the corporate-state healthcare system of Clinton, Bush, Obama and Romney, and a genuine free market healthcare system controlled by us.


    1. He didn't "sum it up nicely", he shoehorned in his liberaltarian talking points into a subject that has jack-all to do with them. It's like when Marxists claim that even the most minute character in a book represents the "class struggle"

    2. Whenever you see 'neoliberal' used in a sentence without the safely welded hinges of scare quotes around the word, you are in the middle of a rant from some shithead who can't accept that private markets are a normative human condition and not an aberration born of our particular time and circumstance.

      1. The real choice is between the corporate-state healthcare system of Clinton, Bush, Obama and Romney, and a genuine free market healthcare system controlled by us.

        Of course, when private companies due to their success develop some muscle and sway, they are no longer members of the 'real free market.' It's in the interest of the 'real free market' that such entities that have grown beyond am arbitrarily designated size must be trimmed down, in the name of the 'real free market', of course.

        1. The entire anarchist critique from Carson and Co. presumes there is no such thing as leadership (and follower-ship), no such thing as "smarter" "better" "more able". It's tiresome.

          1. I get tired of it, and I am an anarchist though of a different school of thought than most. More at home with Hoppe, and the classical German school rejected by modern anarchist for being almost monarchist. Doesn't bother me if the political interest is represented by a strong man who retains rents on the real estate for defensive and sovereign control so long as you are contractually free in every other extent. Singapore does not match this description because there are political bodies beyond the strong man and arbitrators, but I understand Monaco at one time was very much like I describe above.

            1. Singapore is nowhere close to a free country.

              1. You didn't take from the above that I was saying that it is one, did you?

              2. The ideal of the classical anarchist over the more populist modern variant is the nullification of political process.

                If the most significant problem in your society as you see it are these things called democrats who run around like chickens with their heads cut off while calling for arbitrary systemic change that much more often than not worsens your standard of living, what are your choices? Vote Republican? That sometimes helps, but not enough to really satisfy your want to be free of politics.

                What, if instead, you had an alternative, a small nation state that in order to join, there was a buy in? For whatever price, preferably high enough to keep the riff raff out, you no longer have to contend with the useless dynamic of politics? Everything in that regard is something you signed a contract to ahead of time. Would that not be a wonderful alternative?

        2. Of course, when private companies due to their success develop some muscle and sway, they are no longer members of the 'real free market.'

          And which health insurance companies have have developed success without direct involvement from the state? In fact, the entire health care insurance system has been riddled with government interference and intervention since leeches became an antiquated form of health care. The same can be said of the banking industry.

          I think the entire point of Carson's piece is that this is just another state intervention into the market on behalf of the insurance companies.

          If Carson wants to go have his little worker owned co-op and mutualized banks, he can go do it over there


          He still has to trade in a free market, and he recognizes that.

          1. He still has to trade in a free market, and he recognizes that.

            When he speaks of free markets, you know damn well it is in bad faith. Here is the key difference between a liberaltarian and libertarian reasoning on the matter of regulatory capture. Libertarians argue from the standpoint of limiting the power of government, liberaltrians do so as a means of punishing private players with a stronger hand of government whose authority is strengthened by its independence from the market.

  18. The Affordable Heathcare Act is clearly a tax.

    Specifically, it's a pigouvian tax on the externalized cost of individuals not owning health insurance.

    But 99% of Americans are too ignorant to understand that.

    1. There is no definitive externalized cost of individuals not owning health insurance.

      1. I'm trying to figure out if Derider is in favor of this tax, or against it.

        Probably both, the stoopid bitch.

  19. If it's not a tax, why is it being handled by the IRS? Remember all the new IRS agents we complained about being hired?

    What other behavioral fines are handled by an agency devoted to tax enforcement? If you drive w/out insurance is that handled by a tax agency, or the DMV/police?

    If Romney (or other Republicans) refer to the ruling as a tax in ads against Obama or the D Party, are they lying? And if they're not lying, aren't they agreeing w/ CJ Roberts?

    Personally I would have thrown out the Mandate and kept all the rest...but the tax argument is not ridiculous. What's ridiculous is that conservatives/libertarians wanted to thrown out the lion's share of a law because one part of itwas unconstitutional.

    And they wanted do this because they felt it was a bad law. Clownish questions about the deficit (when that has nothing to do w/ the constitution), during oral arguments, prove this. It's why so many of us want a BBA. But since there isn't one why was J Alito even asking about the deficit?

    Roberts is the only true conservative on there. Because a true conservative will never legislate from the bench. Even when he or she wants to do it more than anything in creation.

    Trying to beat liberals by using their methods is like trying to kill someone else by drinking poison yourself. It'll never work. Can't work.

    Roberts is the only member of the American Right on that Court to understand this basic logic.

    1. Bull fucking shit.

      Roberts is a pussy that was afraid of not getting invited to the good cocktail parties anymore.

      His 'logic' in upholding this piece of shit resemble that of a schizophrenic street person.

      Take your Team Red cheerleading and shove it up your ass.

      1. It surprises me none that your intellectual level rises to the level of yelling "COCKTAIL PARTIEZZZZ!"

        Any other arguments you want offer, Professor?

        1. Are you actually defending that shithead and his contortions of logic?

      2. Then when (not if) the Republicans (and likely Libertarians as well) refer to the Mandate as something like "the biggest tax increase in American history" in attack ads against Pres Obama and the Dems, are they lying? And if not, aren't they then agreeing w/ CJ Roberts and disagreeing w/ you?

        1. Yeah they'll be spinning.

          It's not a tax. It was never structured as a tax. Everyone involved in passing it was careful to avoid calling it a tax.

          And Roberts pulled the concept of Obamacare as a tax out of his ass as a way to save it. Except when he almost simultaneously argued that it wasn't a tax wrt AIA.

          The four conservative justices openly ridiculed his opinion in their dissent.

          Roberts basically rewrote Obamacare as a tax plan in order to find it constitutional. Which is in no way conservative.

          Face it, he feared that overturning Ocare would 'tarnish' the court's prestige and threaten his legacy and so he caved to political pressure. All this long game bullshit is just a form of denial.

          The truth is that he's a pussy that caved to social pressure.

          And anyone that defends his decision because they can find a few beneficial partisan pearls in that pile of pig shit is a pathetic political hack.

          1. Wrong. It always was a tax. It's the Dems who lied for political purposes. Even A. Kennedy admitted that if it was a tax it would have been constitutional and said something to the effect of "I wish the proponents of this law had been more honest" (a paraphrase).

            The "spinning" argument doesn't work. It's the Dems who were spinning. They wrote a tax that was enforced by a tax enforcement agency (IRS) and this was one of the reasons ObamaCare was attacked (for hiring all the IRS agents). It really is a tax.

            Instead of legislating from the Bench, follow Roberts and hang them w/ the tax...and they can't say it's R spin because there are 4 lib Justices who agree. It's a TAX.

            Use the fact that it's a TAX ( a huge one on the middle class) to get Romney elected and take over the Senate. Use it to repeal the Mandate/tax. Once it's defunded, use that as leverage w/ libs to make it into something better.

            There are conservative/libertarian solutions to dealing w/ things like pre-existing conditions and the uninsured. We need to talk about them. And we need to start now.

            Not waste our time destroying a great Justice like Roberts.

    2. The law is the law, and absent a severability clause or a bill that makes sense in "several pieces", then the whole law should be struck down. That's precedent as old as the hills.

      1. I don't agree w/ striking down an important law because the Dems were too stupid to put in a severability clause (It was actually in the House Bill btw). Not if it's only done because the Law sucks.

        This law sucks w/ the Mandate/Tax or w/out it. So that is not a reason to strike the whole of it down.

        Because it doesn't really need the Mandate to function. Medicare part D wasn't paid for and the Mandate/Tax is a just revenue generating device...I think even most conservatives/libertarians would agree on that. People just wanted a technicality to get rid of this law.

        But the People brought it on themselves by electing a Sen w/ the most liberal voting record in that House (even more than B. Sanders) and giving him a filibuster proof Senate and huge a majority in the House.

        But let's also think about this...how silly are we going to look when R attack ad after R attack ad refers to the Mandate as a "tax increase on the middle-class" (which will happen and I believe, the ads will be accurate).

        We can't have it both ways. So was CJ Roberts right or wrong about it being a tax?

        1. The only proper decision would have struck the entire law because of the lack of a severability clause.

          And the idea that Obamacare is what the people wanted (whatever that means) is laughable on its face since one of the main reasons that Obama beat Clinton was his vociferous opposition to a healthcare mandate in the D primaries.

          1. I don't agree that the severability clause (lack of) makes that the only proper decision. If it's a tax it's a tax. Even if it's not a tax, it doesn't kill the bill because it just leads to higher deficits (not unconstitutional, but maybe we could use this moment to push for a BBA?).

            The people elected a very, very liberal Senator to be their President then gave him a filibuster proof Senate and a huge majority in the House.

            He said everything he was going to do in his Dem nomination acceptance speech. He was specific. But people preferred to listen to generalities about "red and blue states coming together". Whatever the fuck that even means. He was honest.

            So while the people may not have wanted ObamaCare they wanted him. Let them consider it a life-lesson.

  20. This makes a whole lot of snese dude. Wow.


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