Monthly Archives: July 2012

Deference

Posted on by
Reply

I offer a couple of questions on the matter of judicial deference of which Chief Justice John Roberts reminded us with his ruling last Thursday on the matter of NFIB v Sebelius, the Obamacare ruling.  To be sure, this is far from the first time judicial deference has been applied; it’s an old and hoary doctrine.  But still, the questions arise.

How does deference work for a judicial system in its deliberations of the application of a law, including the supreme Law of the Land?  Deference would seem to be an a priori bias in favor of the government by a court that is supposed to be impartial and objective.  Is this an example of judicial empathy?

How does deference work for a judicial branch of the Federal government that’s supposed to be the equal of each of the other two branches?

In the quest for a “fairly possible” reading of constitutionality, as opposed to the actual text of the law, Justice Joseph Story said

No court ought, unless the terms of an act rendered it una­voidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.

Justice Oliver Wendell Holmes echoed the point:

[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.

These remarks are certainly consistent with the doctrine of deference, but quite apart from that, how are they consistent with objectivity and impartiality?  Particularly in adjudicating an overt question of legitimacy, of constitutionality, that legitimacy would seem be best found strictly in the text of the law itself, and failing that, in the legislative history of the law’s development, certainly not at the end of a long and convoluted search for meaning.

Some Thoughts on the Dissent of the Four

Posted on by
Reply

While I agree with much of the thrust of the Four Dissenters’ argument, and I believe it to be better argued than Chief Justice John Roberts’ concerning the Commerce Clause (with which they agreed) and his argument concerning the Taxing Clause (with which they disagreed), they proceed from a false premise, and so their entire argument must fail.  I’ll get to that false premise in a bit.  First though, I want to look at their arguments concerning those two clauses.  I’m deliberately eliding the matter of the Medicaid expansion, staying strictly with the Individual Mandate.  The Four Dissenters’ opinion, and the entire ruling, with all dissents, can be read here.

The Dissenters began their argument with this summary of the question:

This case is in one respect difficult: it presents two questions of first impression. The first of those is whether failure to engage in economic activity (the purchase of health insurance) is subject to regulation under the Com­merce Clause. ….

They opened their actual dissent with this [citations generally omitted in this post]:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct….  Whatever may be the conceptual limits upon the Commerce Clause…, they cannot be such as will enable the Federal Government to regulate all private conduct….

… The striking case of Wickard v. Filburn,…which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurispru­dence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United States v. Butler….

And they concluded, in this opening salvo:

The Act before us here exceeds federal power…in mandating the purchase of health insurance….

Then they began their explanation of their dissent.  First quoting the Commerce Clause, they then noted of the Individual Mandate

If this provision “regulates” anything, it is the failure to maintain mini­mum essential coverage.  One might argue that it regu­lates that failure by requiring it to be accompanied by payment of a penalty.  But that failure—that abstention from commerce—is not “Commerce.”  To be sure, purchas­ing insurance is “Commerce”; but one does not regulate commerce that does not exist by compelling its existence.

It doesn’t get any clearer than that.  Chief Justice Roberts noted this, as well, in his Commerce Clause unconstitutionality ruling.

In Gibbons v. Ogden,…Chief Justice Marshall wrote that the power to regulate com­merce is the power “to prescribe the rule by which commerce is to be governed.”  That understanding is consistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when “to regulate” meant “[t]o adjust by rule, method or established mode[.]”

This is a point Justice Ruth Bader Ginsburg failed to grasp in her dissenting concurrence.  The Dissenters drove the point home with this:

We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation.  But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,…or “direct[ing] according to rule”…; it directs the creation of commerce.

Then the Dissenters proceeded to the nature of imposing a requirement to behave in a particular way, which is Constitutionally permitted (by Court precedent) only when there is no more efficient way of achieving the desired end.  The fallacy of the government’s position that the Individual Mandate is Necessary and Proper was demonstrated by the ease with which the Dissenters offered simple, less intrusive, alternatives to the command to purchase [emphasis added].

…Congress might protect the imperiled industry by prohibiting low-cost competition, or by according it preferential tax treatment, or even by granting it a direct subsidy.

Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesir­able consequences of the regulation.

They emphasize the point [emphasis added, again]:

…the Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce.  And…the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.

It’s like they were lecturing first-year law students.  In a very real sense, they seem to have been:

The Government was invited, at oral argument, to suggest what federal controls over private conduct (other than those explicitly prohibited by the Bill of Rights or other constitutional controls) could not be justified as necessary and proper for the carrying out of a general regulatory scheme. … It was unable to name any.

The Four Dissenters then moved on to another of the government’s justifications for the Individual Mandate.

The Government’s second theory in support of the Individual Mandate is that §5000A is valid because it is actually a “regulat[ion of] activities having a substantial relation to interstate commerce,…i.e.,…activities that substantially affect interstate commerce.“

Here the Dissenters could have struck a stout blow for judicial restraint and argued for a restoral of the Commerce Clause’s return to its original meaning, pre-Jones & Laughlin and Wickard, but they failed to do so.  Instead, they accepted the (false) premise of these two cases—the false premise of the government’s case—and so invalidated their entire argument, even though they had come to the more-or-less right ruling.  They should have challenged the government’s premise that “substantially affect interstate commerce” is the basis from which to proceed.  I’ll expand on this point later.

Instead, they took the government’s premise seriously, and argued on that basis.  Given that premise, the Dissenters’ argument is sound, however.

…the basic idea is that §5000A regulates “the way in which individuals finance their participation in the health-care market.” …

The primary problem with this argument is that §5000A does not apply only to persons who purchase all, or most, or even any, of the health care services or goods that the mandated insurance covers.  Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases.

Returning to the concept of inactivity as active participation, they repeated their earlier argument:

…the decision to forgo participation in an interstate market is not itself commercial activity (or indeed any activity at all) within Congress’ power to regulate.  It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice.  But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.

And

Wickard v. Filburn has been regarded as the most ex­pansive assertion of the commerce power in our history. A close second is Perez v. United States,…which upheld a [Federal] statute criminalizing the eminently local activity of loan-sharking.  Both of those cases, however, involved commercial activity.  To go beyond that, and to say that the failure to grow wheat or the refusal to make loans affects commerce, so that growing and lending can be federally compelled, is to extend federal power to virtu­ally everything.

Having dispensed with the constitutionality of the Individual Mandate under the Commerce Clause, the Dissenters could have stopped at there, and been fine.  However, they moved on to the government’s secondary argument of “it’s a tax and permissible under the Taxing Clause.”

They began with an early exposure of the government’s pseudo-logic:

The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” … The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes.  In all our cases the two are mutually exclusive.  The provi­sion challenged under the Constitution is either a penalty or else a tax.

And

It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

It is well that the Dissenters emphasized this; this is a point the Roberts completely missed in his desperation to find a way, any way, under his application of the “fairly possible” doctrine, to count the Individual Mandate constitutional under the Taxing Clause.  They note one of the critical limits on judicial power that five Justices failed to heed:

…we cannot rewrite the statute to be what it is not. “‘”[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute…” or judicially rewriting it.'” … In this case, there is simply no way, “without doing violence to the fair meaning of the words used,”…to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

And

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.'”

And

…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.

And just to saucer and blow it,

…the question is, quite simply, whether the exaction here is imposed for violation of the law.  It unquestionably is.

They concluded by repeating an earlier argument:

…to say that the Individual Man­date merely imposes a tax is not to interpret the statute but to rewrite it.

Having forcefully dispensed with the government’s position, and effectively dissented from the majority opinion on the Taxing Clause constitutionality of the Individual Mandate, the Dissenters considered themselves done here.  But as I wrote earlier, they committed a grave error and failed their opportunity for true judicial restraint, instead continuing the judicial activism that underlies the government’s—and Roberts’ and his other colleagues’—fundamental argument.

Jones & Laughlin held that

Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.

Wickard held that a (farm) product produced for personal consumption on the private property of the consumer was subject to Federal control under the Commerce Clause both for the reason of its claimed effect on interstate commerce and because that effect upset the government’s policy of controlling prices in the economy.

Here is the false premise to which I alluded earlier.  The Commerce Clause’s allocation to Congress of the capacity to ensure that all the States played by the same rules in their mutual commerce in no way authorized that Congress to reach inside any State to govern wholly local activities—vis., production in a local factory or farm—much less to reach inside an individual citizen of any State and dictate to that citizen what he might or might not do.

The “substantial effect” meme is a purely speculative one.  That factory or farm that produces goods for consumption solely within a State is not engaging in interstate commerce, even if it is producing goods substantially like those of another factory or farm which does sell for interstate consumption.  It can have no effect on interstate commerce.  Moreover, even were it to have an effect, that local behavior is beyond the Congress’ reach, rather tautologically, in Congress’ efforts to ensure that interstate commerce is regular, that all States function within a common set of requirements.

The fact that production and consumption decision—or today the decision not to consume (or produce)—is made by a private citizen also places that decision, and the related subsequent behavior, beyond the reach of the Federal government.  Justice James Clark McReynolds, in his dissent in Jones & Laughlin exposed the error of the Court’s opinion:

We are told that Congress may protect the ‘stream of commerce’ and that one who buys raw material without the state, manufactures it therein, and ships the output to another state is in that stream.  Therefore it is said he may be prevented from doing anything which may interfere with its flow.

This, too, goes beyond the constitutional limitations heretofore enforced.  If a man raises cattle and regularly delivers them to a carrier for interstate shipment, may Congress prescribe the conditions under which he may employ or discharge helpers on the ranch?  The products of a mine pass daily into interstate commerce; many things are brought to it from other states.  Are the owners and the miners within the power of Congress in respect of the latter’s tenure and discharge?  May a mill owner be prohibited from closing his factory or discontinuing his business because so to do would stop the flow of products to and from his plant in interstate commerce?  May employees in a factory be restrained from quitting work in a body because this will close the factory and thereby stop the flow of commerce?  May arson of a factory be made a federal offense whenever this would interfere with such flow?  If the business cannot continue with the existing wage scale, may Congress command a reduction?  If the ruling of the Court just announced is adhered to, these questions suggest some of the problems certain to arise.

And if this theory of a continuous ‘stream of commerce’ as now defined is correct, will it become the duty of the federal government hereafter to suppress every strike which by possibility it may cause a blockade in that stream?

By the time of Wickard, Roosevelt’s court-packing effort had succeeded, and there was no one to speak for Americanism and individual liberty.  As I said, here was the Four Dissenters’ chance, and they passed it by.

Some Thoughts on Chief Justice Roberts’ Majority Opinion

Posted on by
1

There has been considerable discussion of why Chief Justice John Roberts led his Supreme Court to rule as it did, and whether Roberts simply pulled a “switch in time.”  I’ll leave that to others.  In this post, this non-lawyer will, in his hubris, simply offer some comments on the Taxing Clause part of Roberts’ Opinion for the Court.  Roberts’ Commerce Clause argument was weakly done, but at least he arrived (somewhat) at the right conclusion.  In a later post, I’ll comment on the Dissent of the Four.  I’ve already commented to some extent on Justice Ruth Bader Ginsburg’s dissenting concurrence; I may have further comments later.  The whole ruling, including Roberts’ Opinion and Opinion for the Court, Justice Ginsburg’s…opinion…, and those of the Four Dissenters and Justice Clarence Thomas can be read here.

This is a long post; if you don’t want to read the whole thing, go to the SUMMARY at the end.

Chief Justice Roberts noted the following general comments in his opinion:

If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.

and

Congress may also “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.” U. S. Const., Art. I, §8, cl. 1.  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 muddled thinking demonstrated by these two passages’ connection to each other, as well as contained within the second passage, early on fatally injures Roberts’ ruling and makes it especially dangerous.

Now let’s look at Roberts’ Taxing Clause argument, which he couches in terms of the combined Tax and Spending Clause, and which he used to uphold the Individual Mandate.  He begins his argument  by laying out his argument for “fairly possible:” the doctrine that if it’s reasonable to read an Act as constitutional, the unconstitutional readings are to be set aside and the Act upheld [cites omitted].

And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.  Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it una­voidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”  Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

It’s true enough that the will of the Sovereign people, as expressed through their elected representatives, ought to be given the benefit of the doubt in a question of the constitutionality of their will.  That is, in a question of what the people’s representatives enact in the moment and whether that comports with the will of the people as we expressed it when we formed our social compact and approved our Constitution, there should be some bias in favor of the representatives’ will today.  But when a Justice applies “fairly possible,” the first thing he must do is ask himself, “What am I protecting here–individual liberty, or government prerogative?  The capacity of the people to act, or the capacity of their representatives?” The question here, then, becomes whether Roberts too far stretched this doctrine in order to reach his ultimate Individual Mandate upholding opinion: it’s constitutional because it’s possible for it to be within the Congress’ Section 8 taxing powers.  After all, the thing has actually to be reasonable–logical, of reason.

I’ll note at this point, without going into the matter, that Roberts had already agreed in his analysis concerning the applicability of the taxing Anti-Injunction Act, that the fee to be paid for not buying insurance is not a tax, but a penalty.

Roberts summarized the government’s argument for constitutionality under the Taxing Clause:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.  See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.  …it makes going without insurance just another thing the Government taxes, like buying gasoline or earn­ing income.

Roberts then notes

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many re­spects.

But to use this as the basis for upholding the Individual Mandate under the Taxing Clause is atrocious logic.  “Looks like a duck” is not at all the same as “is a duck.”  “Looks like” is the stuff of forgeries and, less nefariously, of simulations.  There’s also no logic to equating looks like with is.

He continues his “looks like” pseudo-logic:

The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.”

Aside from bad logic, this is a complete misreading of the Act.  All that’s being done here is the specification of a collection method, using tried and true mechanisms.  This specification in no way implies “it’s a tax.”

It is of course true that the Act describes the payment as a “penalty,” not a “tax.”  But while that label is fatal to the application of the Anti-Injunction Act…it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.  It is up to Con­gress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Con­gress’s choice of label on that question.  That choice does not, however, control whether an exaction is within Con­gress’s constitutional power to tax.

This is his first broad stretch: either it’s a tax for a constitutional consideration (vis. whether the Court has standing to hear the case at all at this time, and separately whether it comports with the Taxing Clause), or it is not.  Moreover, this consideration ignores the development of the Act: the Congress had explicitly removed tax language from the Act and replaced it with penalty language.  The Congress clearly intended the exaction to be a penalty and not a tax.

And so he comes to his question:

We thus ask whether the shared responsibility payment falls within Congress’s taxing power, “[d]isregarding the designa­tion of the exaction, and viewing its substance and appli­cation” … The same analysis here suggests that the shared re­sponsibility payment may for constitutional purposes be considered a tax, not a penalty….

There are a couple of problems with this, though.  He’s ignoring Congressional intent, as well as the plain language of the Act—which includes far more than mere labels—in reaching for this ability to consider the penalty a tax.  Using this logic, any penalty—the penalty paid for a misdemeanor marijuana possession could be ruled a tax—and so unconstitutional, since that tax is plainly punitive.  The penalty for a Federal DUI offense could be ruled a tax—and so unconstitutional, since that tax is plainly punitive.  And so on.

Furthermore, he’s eliding—and has been all along—the precedent he ultimately sets of allowing a tax on…nothingness.  All of the taxes cited in that “same analysis”—Drexel Furniture, Kurth Ranch, Constantine—and the “taxes” identified as penalties in those cites are levied on doing something, not on doing nothing.

Roberts tried another tack to get to his “fairly possible.”  There’s a matter of degree, as Dole held.  Roberts argued, agreeably to Dole, “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”  But if it cannot directly regulate, by what logic is it permitted to indirectly regulate?  The indirect contains a necessary component from direct.  Moreover, if it cannot “authorize, forbid, or otherwise control,” by what logic can it influence?  Influence is an effort to exert a measure of control.  Here is that muddled thinking from his opening Opinion that I mentioned at the start made manifest.

And there’s that unprecedented attempt to “otherwise control” with taxes inactivity, a decision not to participate.

Roberts did address the question of “influence:”

Indeed, “[e]very tax is in some measure regula­tory.  To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.”

True enough, as I’ve argued elsewhere on the question of using taxes for social engineering.  However, this just makes it imperative to look at Congress’ motive for exacting the fee.  In the PPACA, the fee exaction is explicitly to “influence” the exactee to buy insurance; it is not at all the taxing purpose of raising money, here to pay the premium increment on everyone (a stretch to allow this into the “general Welfare,” but arguendo, let’s allow it for now) that results from decisions not to participate in the commerce.  This is plain from the fee’s design: in order to avoid being a punitive tax (Drexel an Dole), it was explicitly set to be low and o max out at a low level—a level incapable of making up the premium increase reduced product demand.

He took yet another path in his attempt to seek out constitutionality.  With this as his background

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful.  Neither the Act nor any other law attaches negative legal consequences to not buying health insur­ance, beyond requiring a payment to the IRS.  The Gov­ernment agrees with that reading, confirming that if someone chooses to pay rather than obtain health insur­ance, they have fully complied with the law.

he argued

That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws.

This is both irrelevant and meaningless.  According to a recent DDB Worldwide Communications Group study published this year, 7% of Americans surveyed were willing to admit that they “fudged” their taxes.  When Congress made tax cheating unlawful all those years ago, did they think that failure to comply tolerable, as they apparently were creating today’s nearly 10 million tax outlaws?  Plainly, the negative legal consequences for noncompliance here are not too great.

He tried another shot:

Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new.  Tax incentives already promote, for example, purchasing homes and professional educa­tions.

These are reductions in taxes for altering existing behavior, though, not impositions of whole new taxes for initiating heretofore nonexistent behavior.  Roberts’ ruling inserts a brand new power into the Constitution, and without benefit of the People agreeing to the Amendment under the Constitution’s Article V procedure: Roberts has created out of whole cloth a Federal government ability to tax inactivity.  And, as the Wall Street Journal put it, went to the extremity of “rewriting the plain text of a law” to do it.

All of this, though, simply demonstrates the fatal weakness of the “fairly possible” doctrine: it’s an excuse to uphold a law as constitutional and to avoid the difficulty of investigating the law itself and determining its legitimacy or illegitimacy.  Take two readings of a law: one based on its plain language and so is illegitimate and one based on the most tenuous link to an Enumerated Power, and that most feeble tie must be the one used.  And as I’ll show later on, that link isn’t actually a requirement, either, in Roberts’ mind.

What’s most troubling about Roberts’ argument, though, is that elision I mentioned above.  In every instance he cited, in every example he offered—every one—what was being taxed was an action.  He even argued in striking down the Commerce Clause question that inaction is beyond the government’s reach for regulation.  Surely, if government cannot regulate inaction, it cannot tax it, either, especially when the purpose of the exaction is to create action where inaction lies.

Then he cited, approvingly, this amazing argument:

The “ques­tion of the constitutionality of action taken by Congress does not depend on recitals of the power which it under­takes to exercise.”

Of course it does.  This is the whole concept of a government of limited, enumerated powers.  If the power under which the Federal government wishes to do something cannot be identified—and it’s a short list, after all, or used to be—then by definition, the government cannot do that thing.

Here, finally, he addressed the concept of taxing inaction:

There may, however, be a more fundamental objection to a tax on those who lack health insurance.  Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act.  If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

And he answered the question in the most amazing manner:

First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity.  A capitation, after all, is a tax that every­one must pay simply for existing, and capitations are expressly contemplated by the Constitution.

But the Constitution does, most assuredly, not permit the taxation of inactivity.  Not only is this not an enumerated power—and so forbidden the Congress—there are only three purposes for which taxation is permissible under our Constitution: to raise money with which to pay our debts, to see to our national defense, and for the general welfare as defined by the Enumerated Powers.  Forcing an inaction into activity is not among them.

As to his capitation taxes, they also are expressly and harshly limited by the Constitution.  The capitation question is simply another non sequitur.

On Roberts’ argument vis-à-vis the Commerce Clause, I just note this.

The path of our Com­merce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549, 552–559 (1995), but it is now well established that Congress has broad author­ity under the Clause.

He also noted, in a summary of a part of the government’s argument

Under Wickard it is within Congress’s power to regulate the market for wheat by supporting its price.

Here was his first golden opportunity to be a judicially conservative jurist.  He could have pointed out the errors of Jones & Laughlin, Wickard, and Darby, et al.,  and reversed them in his Commerce Clause argument.  There is, after all, no place in the Constitution, except an intimidated Roosevelt Court put it there, for government to control prices, as Wickard started allowing.  This an abuse of the Constitution’s permission to regularize—to ensure that all the States are playing by the same commerce rules—commerce among the several States.  I’ll have more to say on this when I get to the Four Dissenters’ dissent.

His second golden opportunity was with the Taxing Clause question.  He could simply have waved the BS flag at it.  Instead, Roberts chose to be a judicial activist of the most dangerous sort.

SUMMARY

As Roberts pointed out at the outset, “If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted…,” yet in his ruling he authorized exactly that.  He achieved this through a blatant abuse of the Court’s self-imposed doctrine of “fairly possible,” when he eschewed asking the necessarily prior questions of  “What am I protecting here—individual liberty, or government prerogative?  The capacity of the people to act, or the capacity of their representatives?”

In his search for “possible,” [sic] he applied the false logic of something looking like a duck having to be, perforce, a duck: he wrote that the exaction “looks like a tax in many respects,” while ignoring the fact that it not only looks like a penalty in most respects, the Act made it explicitly so.  He did it by rewriting the Act to suit the judicial convenience of that search, finding that although the Act characterized the exaction as a penalty (not merely labeling it such) and that tax language explicitly had been removed and replaced with penalty language as the Act was being developed, what the Act meant to say was that it was a tax.  As an indication of just how confused Roberts’ thinking was, he applied the false logic of the exaction not being a tax for the constitutional consideration of the Court’s standing to hear the case, yet being a tax for the constitutional consideration of whether the Court, with a sufficiently diligent search for an excuse, can find one for upholding it somehow, somewhere.

He achieved this through his most amazing claim:

The “ques­tion of the constitutionality of action taken by Congress does not depend on recitals of the power which it under­takes to exercise.”

This completely eliminates any pretense of enumeration and limitations heretofore made clear by the existence of the Enumerated Powers—and judicial precedent extending all the way back to Chief Justice John Marshall and McCulloch.

He ignored the wisdom of Chief Justice William Howard Taft, writing on another Taxing and Spending Clause question [emphasis mine]:

Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.

and [again, emphasis mine]

It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States.  We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good.  The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

The results are two terrible things: a law of good purpose (i.e., well intentioned, however poorly crafted) is upheld without thought of the serious breach.  Worse, a precedent that is a terrible threat to our liberty—to what it means to be an American—has been set: now the Federal government can tax, not only everything that moves, but everything that is stationary, as well.  And for any governmental purpose.

RINO Behavior

Posted on by
Reply

The Wall Street Journal ran a piece on the latest collapse of RINO stalwart-ism, this time under the guise of a bipartisan Highway Spending Bill.  This expenditure of $120 billion of what we used to call, in our cute naivety, our money passed the House 373-52 and the Senate 74-19.  You can do the math and see how many RINOs supported this, and you can read below (or at the link) the depth of the collapse of the RINOs.

For decades, a transportation trust fund financed with an 18.4¢ per gallon federal gasoline tax had covered the costs of our highways.  But in one of those unforeseen consequences, improved mileage in our cars means less gasoline bought, so the monies from that tax no longer are sufficient.  As a result, Congress is funding the present Bill with money taken from the general treasury—the one that’s already $1.2 trillion in the hole.

Republicans had been holding out for some real trades to get those general treasury dollars transferred:

  • more state flexibility over how road money is spent,
  • eliminating some of the $6 billion for white elephant transit projects,
  • streamlining environmental laws that make building roads very expensive,
  • expanding oil and gas drilling on federal lands,
  • green lighting the Keystone XL pipeline.

However.

RINOs stood meekly by and watched Senate Majority Leader Harry Reid (D, UT) blithely strip all of that out of the bill.  Including all those jobs for the pipeline.  Not RINOs at all—eunuchs.

Showing his utter contempt—and a well-deserved contempt it is—for the other party, Reid put in 10 years’ worth of revenues (that’s taxes) and spending cuts to pay for this 2-year Bill.  Never mind these…congressmen’s…objections to the “gladly pay on Tuesday for a hamburger today” trickery that was used to “pay for” Obamacare.  They had no hope of winning that argument, so it was safe to talk tough then and look good in the shower.

On this bill, the Republicans had an excellent chance of winning the argument, but the shower water suddenly turned cold.

One of those “spending cuts” with which Reid sneered at the Republicans of both houses: almost $9 billion of budget “offsets” for this Bill will come from the wholly irrelevant—and vaporous—mechanism of allowing corporations to contribute less over the next several years to their own defined-benefit pensions.  The WSJ explained this “savings and offset” this way:

Companies under this deal would pay slightly higher insurance premiums to the federal Pension Benefit Guaranty Corporation.  Technically this lowers the budget deficit, because employer payments to pensions are tax deductible.  By reducing those payments [at the expense of those premiums], corporations report more taxable income and Uncle Sam magically collects more money.

The Democrats aren’t the only ones who need to be fired this fall.

Progressive Behavior

Posted on by
2

Justice Ruth Bader Ginsburg wrote some real whoppers into her dissenting concurrence with Chief Justice John Robert’s majority opinion that upheld Obamacare in the just published ruling on NFIB v Sibelius.  (Incidentally, the tone and phrasing of her remarks, and of the major dissenting opinion, give credence to the idea that Roberts switched his vote late—a switch in time.)  Here are some excerpts from the Progressive jurist’s opinion.

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s.  In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors.

But this is a distortion, an…inaccuracy…, and a revealing blind spot in her own understanding of history.  What the New Deal Congress enacted was a program of supplemental, not of replacement income, for the retired, who were expected to be supported by their families, and for a then-actuarial life expectancy of some 5-7 years in retirement.  Today’s Obamacare is intended to provide—entirely—”health care” from cradle to grave, some 85 years today.  And Justice Ginsburg perpetuates the erroneous, but careful, combination of health care and health “insurance” into the same thing.

Then she continued the above:

According to the Chief Justice the Commerce Clause does not permit that preservation [of an alleged central role for private insurers]. This rigid reading of the Clause makes scant sense and is stunningly retrogressive….

Two things here.  In the first place, that preservation should be wholly irrelevant, since there should be no central role to be played in the government’s health “care” program, since there should be no such program.  Withal, that’s not a constitutional question, but a political one.

The real problem is the mindset Ginsburg exposes with that “rigid reading” canard.  What other reading is possible for a document that is supposed to be changeable only by the people through a formal amendment process, and not changed at convenience through judicial creative “interpretation” to support whatever goal falls to hand?

Ginsburg plowed on:

The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it….

And

The Chief Justice’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation….

Rather than “crabbed” or “novel,” this is an entirely accurate reading.  The Commerce Clause permits the Congress only to regularize the commerce among the several States, not to centrally manage the entire economy—for any purpose.  And there’s that mindset, even more so: according to Ginsburg, the world began with Jones & Laughlin and Wickard.  She carefully elides the fact that these two cases had themselves overturned 120 years of precedent and case law under the Commerce Clause that had held, explicitly, that commerce that occurred wholly within a State was beyond the reach of the Federal government to regulate, and that such trivial things as acts of production or thinking about a transaction were not even commerce, no matter the decision taken or where the produce might ultimately be destined.

Then she wrote this:

The Chief Justice also calls the minimum coverage provision an illegitimate effort to make young, healthy individuals subsidize insurance premiums paid by the less hale and hardy.  This complaint, too, is spurious….

But then she acknowledges, just three sentences later,

Those who have insurance bear the cost of this guarantee.

Her internal contradiction shows her disingenuousness.  “Those who have insurance” include the “young, healthy individuals” who are Dragooned by Obamacare into buying health “insurance” coverage they do not need and would not otherwise buy.  This Dragooning, of everyone, was justified explicitly as being in order to subsidize insurance purchases by “the less hale and hardy.”

And there’s this plain, Progressive meme:

…the Chief Justice plows ahead with his formalistic distinction between those who are “active in commerce,” and those who are not….

Now she’s channeling Judge Kessler, who ruled in Mead that our private decisions—our thoughts—are regulable by the government under the Commerce Clause.

She also writes, concerning her other colleagues’ joint dissent, that they are

asserting, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription[.]”

This is a dangerously naïve, yet typically Progressive, position to hold about a government.  No government of theirs would ever get so out of hand.