Daily Archives: 2 July 2012

Tax vs Prohibition

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Paul Mirengoff had some remarks on some of the implications of the Supreme Court’s ruling on the Patient Protection and Affordable Care Act.  Chief Justice Roberts’ argument:

…the highly consequential debate between Chief Justice Roberts and Justice Kennedy over whether it is “fairly possible” to view the payment that must be made under Obamacare for not purchasing health insurance as a tax.  Roberts’ view that it reasonably can be considered a tax rests, at least on part, on the claim that there is no prohibition against not buying health insurance.  An individual can refuse to buy insurance, just as a basketball player can commit that last foul, though he or she will pay a price for the refusal.

Justice Kennedy’s argument:

Kennedy’s view is that the price one must pay for not purchasing insurance entails a prohibition.  He quotes the great jurist Chancellor Kent as follows: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.”

Mirengoff concludes

Kennedy’s view of this matter is more persuasive than the Chief Justice’s.  But remember, under rules of constitutional adjudication, Roberts’ view need not be the most persuasive one.  As Kennedy concedes, it must only be “fairly possible.”

And here is the danger of, as Mirengoff puts it, the squishiness of “fairly possible.”  Note that in this context, “fairly” has nothing to do with “fair,” as in a “fair coin.”  “Fairly” here means sort of reasonable, a measure of plausibility.  And that “sort of plausible” argument was allowed by Roberts to trump actual logic—and the facts of the matter that Congress had, in developing this law, explicitly removed tax language and replaced it in toto with penalty language.  Roberts abused even the squishiness of the fairly possible “doctrine” to find a tax in the law where none existed so that he could preserve a claim of constitutionality of the PPACA.

Indeed, Roberts moved himself over the line into judicial activism.  The judicially conservative thing is to strike a law that is unconstitutional, not to actively manufacture reasons for finding it constitutional.  That is judge-made law.

The Supreme Court and the Constitution

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Here’s another implication of Chief Justice John Roberts’ ruling on the Patient Protection and Affordable Care Act, courtesy of The Wall Street Journal.

According to Chief Justice Roberts, the penalty is merely a tax on not owning health insurance, no different from “buying gasoline or earning income,” and it thus complies with the Constitution. This a large loophole. The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it calls them something else and judges call them taxes.

Except that not buying a thing or a service is radically different from buying that thing or service.  This isn’t merely a matter of opposites: opposites are related to each other.  There is no relation between buying or not buying—the thing/service being bought is known; the thing/service not being bought cannot be known, and so the bought/not bought functions can have no relation to each other whatsoever.

Chief Justice Roberts writes that construing the Commerce Clause as the Obama Administration argued “would open a new and potentially vast domain to congressional authority…. The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.” [emphasis in the original]

But then

Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.

With this stroke, Roberts has cancelled the effect of his understanding on the limit of the Commerce Clause’s ability to compel commerce; he has simply transferred the ability to compel commerce to the Taxing Clause.  Which also had no prior compulsion power.

Whether the Federal government may compel our behavior via Commerce or via Taxing, our government now can compel our behavior.

This is judicial activism at its worst.