We're Living in Tuttle's (Or is it Buttle's?) World Now


There aren't any negative legal consequences, but I'd still be careful, if I were you.

One of the genius elements of the insanely wonderful/wonderfully insane movie, Brazil, is the representation in the film of a repressive state as essentially an exercise in banal bureaucracy. There is nobody to hold accountable, no specific policy to protest, and even violent, misfired police raids are exercises in wrongly processed paperwork that — so sad, too bad — mistakes Mr. Buttle for Mr. Tuttle. A strong argument can be made that, with ObamaCare and the Supreme Court decision that upheld it, we're living in Mr. Buttle's world now.

The sort of reasoning that brought us this verbiage, courtesy of the majority opinion, provides revealing insight into the modern authoritarian state:

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's choice of language—stating that individuals "shall" obtain insurance or pay a "penalty"—does not require reading §5000A as punishing unlawful conduct.

Really, that's brilliant! Once upon a time, authoritarians overtly made you do something. You had to carry a card, sign a document, or otherwise engage in conduct that, should you be so inclined to throw yourself into the maw of the machine, could be resisted with a grand gesture. You could burn your draft card, refuse a signature or stubbornly and openly fail to comply. And the state would acknowledge the grand gesture with some over-the-top arrest, and a trial at which your principled act of resistance was met with specific charges targeting the same.

But "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"? Really? Suddenly it's just a tax matter. Refuse to buy insurance as mandated by the state and…your tax refund gets reduced. Carefully calibrate your taxes so there is no refund and your wages get garnished. Take it the extra step and…the most you can accomplish is an arrest for refusing to pay taxes, No principled opponent of government-dominated health care, you—just another tax dodger. It's a charge well-removed from the target of defiance, which leaves the principled dissenter flailing at nothing more than smothering red tape.

Brilliant. Really.

You could say that it's cowardly of modern politicians to hide behind the bureaucracy and refuse to confront their detractors head-on, but these are people more concerned with control than courage.

And in their world, Mr. Buttle — and dissenters of all sorts — are just paperwork concerns.

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

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Cue the Ayn Rand comment about the State needing to make everyone criminals....

    (not that she was wrong on that one)

    1. " We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted ? and you create a nation of law-breakers ? and then you cash in on guilt."

  2. Did Roberts bend under peer pressure?
    ...Progressives gain status and profit from expanded judicial power and from flexible constitutional rules, because they gain the ability to use the Supreme Court to trump voters' and legislators' decisions.

    Much of the evidence for a Robert surrender consists of language in the so-called "dissent" written by the minority of four conservative judges.

    The dissent includes language referring to the majority opinion as the "dissent."

    That "dissent" term is normally applied only to the minority's explanation of their votes.

    The likeliest explanation for the mismatched terminology is that Roberts initially joined the group of four conservative judges who wished to strike down the law. His vote made them the majority, and allowed them to label the progressives' opinion as the minority dissent....

    1. I'm just going to say Robert is a shithead and be done with him. There's no need to try to understand the man's vote in this case.

      1. More Hints that Roberts Switched his Vote
        ...UPDATE: Ed Whelan notes a related theory: Roberts assigned the opinion to himself, and wrote most of what became the four-Justice dissent. He then switched on the tax issue, and the four dissenters adopted most of his original majority opinion as a dissent. This would explain why the dissent is unsigned. Other blogs are noting that Justice Ginsburg directs much of her ire at the Chief, which is the sort of things Justices do when they think they've lost someone's vote, not when they are trying to keep a tenuous vote to uphold uphold the law in question on board....

        1. Roberts was going to write a concurring opinion joining Scalia, but he got high.

          He was going to keep the Republic from stepping deeper in the abyss, but he got high.

          I don't know why, don't know why, Roberts got high.

          1. Wait...He got SO high that he failed to set a precedent on commerce clause powers that would have limited the federal government's ability to prosecute marijuana users?...Shit, that's high!

            1. Between marriages sometime ago, I bedded a beautiful woman, smoked some bud with her before leaving her domicile, and on my way home noticed the polls were open. Decided to do my civic duty. High. Wound of voting Bush in 00. I'm the only person I know with a legitimate excuse for that fuck up. Other than Gore was the other fuck up. Last time I voted for either of the twin parties.

    2. if roberts hadn't switched sides, then Mitt Romney would have had to flip-flop on his promise to repeal obamacare on day one.

  3. 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 to not buying health insurance, beyond requiring a payment to the IRS. And Congress's choice of language?stating that individuals "shall" obtain insurance or pay a "penalty"?does not require reading ?5000A as punishing unlawful conduct.

    This reads best in the voice of Sir Humphrey Appleby.

    1. So it's a penalty, not a tax.

  4. And in their world, Mr. Buttle ? and dissenters of all sorts ? are just paperwork concerns.

    Archibald Buttle wasn't a dissenter as far as I recall. He was just a dude trying to have a Happy Christmas. Archie Tuttle, on the other hand...

  5. Er, Mr Tucille, you got arrested if you didn't pay your taxes before Obamacare, regardless of your motivation. Is that a bad thing? Perhaps. But it's not a new thing.

    1. The idea is that more and more laws become "tax evasion", and thus hidden from view.

    2. Actually from that, we can show that Obamacare is punitive and that it does define a new class of unlawful conduct, contrary to the court's tortured reasoning.

      Don't want to buy insurance? Fine, we'll just take your money. See how nice we are? We're not criminalizing your decision. ... Oh.. you don't want to comply with the other, nice and legal insurance-skipping "tax" either? Well now, that's a different matter

  6. But we had to support Bush against Gore. Bush said Jeebus was his fav political philosopher!!!! So Bush appointed Roberts....

  7. Government: A series of tubes.

    1. Yes, assholes.

  8. You there. John Roberts. May you live forever.

    1. May John Roberts choke on a ham sandwich!

  9. I'm pretty sure we've been living in Brazil for a while now, chum.

  10. Check out footnote 11 on page 44:
    "11Of course, individuals do not have a lawful choice not to pay a taxdue, and may sometimes face prosecution for failing to do so (although not for declining to make the shared responsibility payment, see 26 U. S. C. ?5000A(g)(2))."

    Which reads, in part:
    "(2) Special rules
    Notwithstanding any other provision of law?
    (A) Waiver of criminal penalties
    In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
    (B) Limitations on liens and levies
    The Secretary shall not?
    (i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
    (ii) levy on any such property with respect to such failure."

    Am I reading that right?

  11. And to think, we could have had Janice Rogers Brown instead...

    1. I wonder how Harriet Miers would have voted.

      1. Man, I felt really bad for her. She seemed like a very nice woman, just not Supreme Court material.

        1. Yeah, not at all up to the standards of the wise latina, the Kevin James double or any number of skeletors.

            1. I wonder how Janice Rogers Brown would have voted... if the leftists hadn't turned her into a combo of Aunt Jemima and Lady Hitler.

          1. Ha, well I meant in the sense that she didn't radiate that prep-schooly, Harvardy brilliance that SC candidates usually do. I wasn't saying she actually would have been worse than any of the current or former justices.

          2. No, no. Kagan looks more like David Mitchell from Peeps: http://www.bbcamerica.com/angl.....ominee-el/

            Peeps is a fun show, by the way.

      2. Alito was Meirs' replacement, so it would have either left the vote unchanged or resulted in a 6-3 decision for Roberts' opinion.

  12. I've said it for over a decade.
    'Brazil' is a documentary!

    1. Right along with 1984 and Atlas Shrugged. It seems that .gov thinks they're user manuals.

  13. No principled opponent of government-dominated health care, you ? just another tax dodger.

    1. become self employed
    2. never report a gain
    3. ???
    4. profit

    1. Doesn't work when you get a 1099 from legitimate businesses. Your plan only works if you work under the table for low wage, or you work for real criminals, neither of which sound appealing.

      1. sooo....

        1. become a drug dealer
        2. profit

  14. Reminds me of something Hayek wrote, and that Anthony de Jasay criticized: government could legitimately provide useful services that do not involve "coercion except for raising the necessary means."

    Course, what other coercion is needed?

  15. Why has no one evoked the gypsy curse on the left?

    "May you get what you want and want what you get."

      1. I got it from an awesome David Mamet movie "House of Games".

        Really a must see movie.

        1. actually nm...i don;t know what movie i saw that in...

          Still House of Games is great.

        2. Yeah, I was just going to say, I don't remember that in House of Games.

  16. Yet another brilliant judicial choice by the party that is fighting for individual liberty.

    ha ha ha ha ha ha ha

    a poor but nevertheless warming consolation is seeing idiot republican apologists squirm

    1. Seek help.

      1. cyto, you are sore because you bet on a weak horse

        apologize all you want, but the truth is that the repubes are frauds and they just keep on losing, and just keep on asking for a second chance, and you keep on hoping that they might deliver, just this once

        ha, ha, ha, ha, ha, ha

        1. I do have to wonder why the Commentariat gets so mad at wef. Is he saying anything most of us don't believe? I know that I think the Republicans are frauds who keep on asking for redemption they don't deserve. Where's the beef?

          1. His epitard-esque rants and fixation on the fairytale goal of destroying the GOP are useless and run counter to the obvious and only logical choice at this time: to take over the GOP from within.

            1. They're also somewhat delirious. Wef proclaims to absolutely positively hate hate hate the Democratic Party. So what's the solution? DESTROY THE GOP! DUH!

              It makes me think he's a Democrat running a false-flag operation.

              1. Just because he does not speak the whole truth does not mean that what he says is not still true.

                1. Leaving out part of the truth is lying through obfuscation. It's not a direct lie, no, but it has the effect of one.

                  Destroying the GOP and the DNC, I can see. Taking over one or the other, I can see. Creating a third party to compete with the other two, ok. But to claim to hate both parties, but focus all your rage on the one you claim to hate less? That's...well, crazy is the best I can say for it, because the other option is that he's really just a DNC partisan who's trying to focus rage on the GOP while obfuscating his own preference.

                  1. My guess would be that he is a former Republican who has grown tired of being betrayed. Much in the same way ex-smokers become the most virulent antismoking crusaders.

            2. to take over the GOP from within.

              That isn't going to happen on its own from a few politicians. If anything there has to be a mass movement first with minds changed from outside the GOP, then electing libertarian-in-disguise candidates at all the various levels in Republican positions

              Frankly I don't see that happening either, unless we have some complete catastrophe or disaster. I see a growing movement, like the RP movement, which is refreshing thing, but I don't have high expectations. (And this from someone who has donated to RP in 2008 and this year)

              1. My guess would be that he is a former Republican who has grown tired of being betrayed. Much in the same way ex-smokers become the most virulent antismoking crusaders.

                Perhaps, but I consider those ex-smokers friggin' crazy too.

  17. It all seems so obvious to me. What the Act really does is raise everyone's taxes by the amount of the "penalty", and then give everyone who has insurance a tax credit in the same amount. In that light, it's not all that dissimilar to the tax incentives to own a home or buy insulation.

    'course, the Act doesn't expressly change tax rates, but it's not like anyone in Congress read it anyway.

    Amazing how much law can be written from the bench in the name of "judicial restraint".

    1. It all seems so obvious to me. What the Act really does is raise everyone's taxes by the amount of the "penalty", and then give everyone who has insurance a tax credit in the same amount. In that light, it's not all that dissimilar to the tax incentives to own a home or buy insulation.

      As absurd as the idea is that I owe the government money--because I earned some?--at least that tax is based on...something I did.

      Theoretically, I could choose to homestead, grow my own food, etc., and I wouldn't have to pay any income tax at all.

      If I don't want to pay the sales tax on gasoline? There's an easy way to avoid that. I can simply refuse to buy gasoline.

      What's this new "tax" Obama's inflicted on us based on? Something I did?


      Is there any feasible way for individuals to choose not to participate in his plan?

      The correct answer to that question is also "no".

      How do Americans who don't want to participate in ObamaCare opt out? And how is that fact in any way similar to tax incentives to buy a home or insulation?

      Has the government started fining people for not buying a home or not buying insulation?

      1. If you don't earn any income then you're eligible for Medicaid, so you're not subject to the tax/payment/penalty/fee/drogulus/whatever for not having insurance.

        1. That was a way to opt out of the income tax, Tulpa.

          Are you suggesting that people who wish to opt out of ObamaCare should stop earning money? ...and that this somehow makes the ObamaCare "tax" similar to tax incentives to buy a home or buy insulation?

          In what way is being forced to stop earning money, if you don't want to participate, like a tax incentive to buy a home or buy insulation?

      2. Has the government started fining people for not buying a home or not buying insulation?

        Sure -- Everybody who doesn't buy a home doesn't get to deduct their mortgage payments. Everybody who doesn't insulate doesn't get the energy efficiency tax credit for insulating. They pay more taxes than people who do do those things.

        It makes a twisted sense if you don't look at the penalty as a tax specifically on the non-purchasers of insurance -- The tax is on everyone; It's just that people who buy insurance don't have to pay it, just like people who pay mortgage interest pay less in tax than people who don't.

        Like I said, it's a hell of a tortuous way to get to a finding of constitutionality -- assuming that Congress hiked taxes without knowing it, and gave everyone who buys insurance an offsetting credit -- but I think that's what the decision amounts to (Roberts probably being motivated by the bullshit doctrine of "Judicial Restraint"). Which means, as many of us have long suspected, the blank check that really empowers infinite government overreach isn't the Commerce Clause, it's the 16th Amendment.

        1. Not being given a tax credit for something you didn't do is not the same as being taxed for something you didn't do.

          If you don't eat your spinach, you can't have any desert is not the same as if you don't eat your spinach, you're gonna get a spanking.

          It is not the same from any standpoint.

          Rewarding someone for choosing to do something is not the same as punishing someone for choosing not to do something--no matter how you slice it.

          One is the carrot in front of the horse. The other is the whip. Every horse knows there's a difference between a carrot and a stick.

        2. P.S. Does the term "false equivalence" mean anything to you?

    2. One of my academic acquaintances actually posted on his FB page that the decision placed the US on "the right side of history." Seriously, a government managed bureaucratic program is equivalent to the civil rights movement or ending slavery or WWII.

      But that's one of the problems: people who want more government are just so much more damned zealous and willing to do so much stuff to get it (see Beeblebrox's description of the Krikkit-ites).

      1. The problem is that socialist government schools have turned a majority of Americans into fucking three toothed retards incapable of wiping their own asses.

        1. Yeah, I've pretty much given up talking politics with academics. They simply don't have the intellectual knowledge or reasoning tools to engage in political debate.

          They can definitely repeat Democratic Party talking points NPR stories but that's about it.

  18. Unfortunately, some of us regulars have pointed out before that our fine nation was a facsimile for the fictional one in Brazil for some time. It didn't take the tortured reasoning of a conservative judge who changed his opinion at the last minute, trying to win a a popularity contest with people who already hated him and will continue to do so. No, the police firing randomly in wrong door raids, with not even an apology, followed by some bureaucrat mouthing that everything was within procedures, then handing the frightened residents their receipt, then his receipt, then their receipt for his receipt...

  19. So I don't get it. If health insurance costs $2000/year, why would a currently uninsured healthy person buy that instead of paying the $695 fine?

    This reminds me of an article I read a few years about how child care providers were pissed off that some parents would habitually pick up kids late and happily pay the late pickup penalty. Parents evaluate the price and it's a better deal than the alternative. Facilities won't fire their customers and won't impose Draconian fees that would scare off customers who are never/rarely late to pick up their kids.

    There may be the political will for a token penalty. There is no political will for penalizing in line with the cost of the desired alternative. And there's no political will for sending the uninsured to prison. People will figure this out real quickly.

    1. Because for your $2000 a year you get health insurance? I doubt that I spend even $300 on medical care in an average year, but I'd rather not be rendered completely destitute if I get hit by a car and suddenly require tens-of-thousands of dollars in care. That's why it's called "health insurance." You might as well ask why someone who isn't planning on dying soon would buy life insurance -- it's because they might die.

      1. Right, you've made the evaluation that health insurance is a good investment for you. The problem, we are told, and the reason for the mandate, is those young, healthy people who don't see it as a good investment. How does a fee way below the cost of a plan do anything but encourage them to opt out by paying the fee. In other words, have you read the first chapter of Freakonomics where the authors discuss a very similar problem tested on day care facilities in Israel?

        1. Actually, I suspect that if we had a functioning market for health insurance that actually is insurance and not socialized cost sharing, a lot more young people would understand the wisdom of purchasing it.

          Instead through various mandates, regulations and the market distorting incentives that tie health coverage to employment we do not have anything resembling a functioning market for health insurance. We don't, in fact, have anything resembling actual health insurance, period.

          The young people who do not buy insurance are rather shortsighted. Young people can get catastrophic illnesses ann can have (in fact are more likely to than older people) catastrophic accidents. People who get chronic illnesses when they don't have insurance are the ones who end up complaining that they cannot get insurance for their preexisting condition. I suspect, though I may be wrong, that most of the people who are uninsurable because of a prexisting condition got the illness in question at a relatively early age.

          Pricing in a functioning market and changing the incentives and emphasis such that people understood better that their healthcare is their own responsibility would, IMO, prompt young people to realize the wisdom of having insurance. Obamacare does none of these things.

          1. While we're dreaming, how about a functioning market for healthcare? Then there would be practitioners serving all segments of the market, whether they be rich or poor, insured or not, with the quality of care they can afford. Rather than the current system where anything less than the most extravagant cutting-edge treatment is either outlawed or sued into nonexistence.

            1. Good point.

  20. Hate to say it peeps, but the court has spoken and that is that. I could dredge up untold comments from other articles posted on this site the past few months about the court, its powers, and its 'right' if you will to interpret the very legality of laws.

    Easy stuff to say when you think you're winning. And indeed Clown and his circus tipped their ugly hands rhetorically when they thought they were losing, but the law is the law and it has spoken.

    Since our argument lost, we should avoid resorting to foolery of 'Progressives gain status and profit from expanded judicial power and from flexible constitutional rules, because they gain the ability to use the Supreme Court to trump voters' and legislators' decisions..

    Think about that statement for a second...because if you swap some nouns it's the exact argument Clown was making in his (definitely not ours) Rose Garden but months ago - when he was losing too.

    We should never let our thinking swim the sewers like them.

    1. In the big picture, and technically speaking, "that is that" is never the case when it comes to the law.

      This law can be protested, vilified, and legislators soundly punished for passing this abomination, causing a full legislative retreat from a law that's as repealable as anything else passed in a representative democracy.

      Whether any of that will happen is unknown. And I'd agree that it's certainly unlikely in our current political climate.

      However, there are some interesting theories going around vis-a-vis Roberts' 11th hour opinion change that essentially change the liberals' own argument about the law.

      Whether any of these theories have the merit of truth, I don't know, but even if they don't, the outcome is the outcome: This law is now a tax, and it's entirely possible that the upholding of this law may wind up being Obama's "read my lips" political moment.

      I have my doubts, but I'm really curiouis to see how this plays out in the next few elections.

      1. If ever "that" was not "that," it's now. This decision is not the last word, but merely the first of many.

        1. For instance, and to use an extreme but valid example, was Plessy v. Ferguson the "last word" on state-enforced racial segregation?

  21. My contribution to the Seattle Times:

    If Portugal, Italy, Greece and Spain can have effective national healthcare plans, there's no reason why we can't have a cost-effective one, too.

    It's time we join the civilized countries of the European Union, and start controlling our national healthcare costs with the rigor and success that the EU model has given to the rest of the world.

    Onward and upward. Change has come, and I for one embrace our emulation of European economic models, which are the envy of the world

  22. I think they are going to have to kick it up a notch. Wow.


  23. Didn't they make it so that in most or all cases the IRS can't even enforce a penalty for nonpayment? I'm pretty sure Reason has previously covered the IRS enforcement power for ? 5000A and pretty much the most they can do is withhold a refund, not garnish wages or place a lien (or pursue criminal prosecution).

    1. There are plenty taxes that you will get thrown in jail for today, that back when they first passed and were controversial, the govt promised will not be enforced.

      When they need money badly enough they will quietly change their mind and start enforcing the law. It's always easier than passing a new tax.

Please to post comments

Comments are closed.