# How is Obamacare being Upheld unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [June 30, 2012, 3:52pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814 "2012-06-30T15:52:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Meeko](https://avatars.discourse-cdn.com/v4/letter/m/e495f1/32.png) [@Meeko](https://boards.straightdope.com/u/Meeko)\ **Post date:** [June 30, 2012, 3:52pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/1 "2012-06-30T15:52:28Z")
I’m having an online debate. Their premise is that the Decision to uphold the ACA / Obamacare is Unconstitutional. I would ask them to cite the Constitution, but I’m actually kinda winning the debate right now as they have conceded some points, and have gone to four letter words. \*\*Is there a constitutional basis to repeal the personal mandate? \*\*I’m looking specifically for the letter of the law here. If there is a case for the spirit, I would like to see that as well. ---
**Author:** ![MLS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MLS](https://boards.straightdope.com/u/MLS)\ **Post date:** [June 30, 2012, 3:58pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/2 "2012-06-30T15:58:17Z")
It’s constitutional because the Supreme Court says it is. End of story. Similar to whether a baseball pitch is a strike or a ball. It ain’t nothin’ until the umpire says it is. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 30, 2012, 4:00pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/3 "2012-06-30T16:00:49Z")
> [@Meeko](#): > > I’m having an online debate. Their premise is that the Decision to uphold the ACA / Obamacare is Unconstitutional. > > I would ask them to cite the Constitution, but I’m actually kinda winning the debate right now as they have conceded some points, and have gone to four letter words. > > \*\*Is there a constitutional basis to repeal the personal mandate? \*\*I’m looking specifically for the letter of the law here. If there is a case for the spirit, I would like to see that as well. You need to explain this more fully, because it sounds like your online friends are challenging the notion that the SCOTUS can rule on the constitutionality question. If so, you’re not going to get anywhere. If you want to know how it could have been ruled unconstitutional, just read the dissent by Kennedy. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [June 30, 2012, 4:03pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/4 "2012-06-30T16:03:18Z")
> [@John\_Mace](#): > > You need to explain this more fully, because it sounds like your online friends are challenging the notion that the SCOTUS can rule on the constitutionality question. If so, you’re not going to get anywhere. I can’t really blame them for that takeaway…an actual elected Representative, conservative superstar Paul Ryan, said exactly the same thing. They’re WRONG, of course, but they’ve likely been led astray. They probably didn’t get there on their own. ---
**Author:** ![Linden\_Arden](https://avatars.discourse-cdn.com/v4/letter/l/53a042/32.png) [@Linden\_Arden](https://boards.straightdope.com/u/Linden_Arden)\ **Post date:** [June 30, 2012, 4:08pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/5 "2012-06-30T16:08:26Z")
Obamacare is an unconstitutional government takeover of all healthcare with death panels and the largest tax increase in US history with 20,000 new IRS agents to harass you. Reality be damned. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [June 30, 2012, 4:46pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/6 "2012-06-30T16:46:00Z")
There IS a case, four of nine justices thought that case was valid. Five of nine judges thought it was constitutional. Once they vote, its a done deal unless the constitution is amended (and since the grounds for constitutionality were that it is a tax, and the government has the right to levy taxes, I’m not sure how you are going to do that), or unless in a future case, they were to overturn themselves (ala Plessy v. Ferguson) - but that wouldn’t be THIS law - this one is done. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 30, 2012, 4:46pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/7 "2012-06-30T16:46:57Z")
> [@jayjay](#): > > I can’t really blame them for that takeaway…an actual elected Representative, conservative superstar Paul Ryan, said exactly the same thing. They’re WRONG, of course, but they’ve likely been led astray. They probably didn’t get there on their own. I would be interested in seeing the quote from Ryan. ---
**Author:** ![Oldeb](https://avatars.discourse-cdn.com/v4/letter/o/ea666f/32.png) [@Oldeb](https://boards.straightdope.com/u/Oldeb)\ **Post date:** [June 30, 2012, 5:34pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/8 "2012-06-30T17:34:26Z")
[It was Senator Rand Paul, not Paul Ryan.](http://www.politico.com/blogs/on-congress/2012/06/rand-paul-obamacare-is-still-unconstitutional-127574.html) > [@Rand Paul](#): > > “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. Edit: [He repeated similar statements and didn’t retract that one in a later editorial.](http://www.nationalreview.com/articles/304386/obamacare-not-constitutional-sen-rand-paul) ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [June 30, 2012, 5:53pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/9 "2012-06-30T17:53:02Z")
Congress seems to have a history of being very uppity. As a group, they seem unable to accept that there are two other branches of government with independent authority. McCarthyism comes to mind. Though there have been upsetting SCOTUS cases here and there, of the three branches the Court has always seemed the most restrained to me, followed (distantly) by the executives. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [June 30, 2012, 5:55pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/10 "2012-06-30T17:55:57Z")
> [@John\_Mace](#): > > I would be interested in seeing the quote from Ryan. Yes, my mistake. It was Rand Paul, not Paul Ryan. All the wingnuts look alike to me… ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 30, 2012, 6:08pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/11 "2012-06-30T18:08:24Z")
My take is that the penalty/tax is unconstitutional since it is not a tax on income but an indirect tax. Apparently SCOTUS disagrees and to be honest, I don’t know why an indirect tax would be unconstitutional either. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [June 30, 2012, 6:22pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/12 "2012-06-30T18:22:03Z")
> [@Saint\_Cad](#): > > My take is that the penalty/tax is unconstitutional since it is not a tax on income but an indirect tax. Apparently SCOTUS disagrees and to be honest, I don’t know why an indirect tax would be unconstitutional either. I feel like this kind of argumentation leads to the weirdness I stumbled across in Scalia’s dissent. He argued something like, “We can find cases where A=B but no cases where B=A.” Of course he didn’t say “A=B” he said “a tax is a penalty”. He did manage to fall short of saying “it depends on what your definition of ‘is’ is.” Can the government give a tax break to people that have children? Or is this a penalty for people who _don’t_ have children? To me these things are absolutely identical and if there is different legal language (tax / penalty) it would be related to things like “what other legislation applies,” for example the Anti-Injunction act. So Roberts basically ruled, as far as my reading goes, “It’s a tax, but for the purposes of the anti-injunction the word ‘penalty’ was used so other tax-like issues didn’t arise.” And it was cast as a penalty for not having healthcare, but this is operationally equivalent to a tax break for having healthcare. Which doesn’t suggest in itself that it is constitutional, mind, but would you like to eliminate all such encouragements embedded in the tax code? ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [June 30, 2012, 7:19pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/13 "2012-06-30T19:19:44Z")
Some people think that judicial review itself is unconstitutional. You cannot win a debate with these people; the reality you live in does not exist to them. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 30, 2012, 7:23pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/14 "2012-06-30T19:23:37Z")
> [@Meeko](#): > > I’m having an online debate. Their premise is that the Decision to uphold the ACA / Obamacare is Unconstitutional. > > I would ask them to cite the Constitution, but I’m actually kinda winning the debate right now as they have conceded some points, and have gone to four letter words. > > \*\*Is there a constitutional basis to repeal the personal mandate? \*\*I’m looking specifically for the letter of the law here. If there is a case for the spirit, I would like to see that as well. Of course there is, if **Congress** does it, because Congress is the body that **repeals** legislation and has the constitutional authority to do so. The SCOTUS cannot repeal, but it can void or overturn legislation by ruling it unconstitutional. What you’re really asking here is whether the SCOTUS’ decision is constitutionally correct. Well, legally and constitutionally, it is correct, just because the SCOTUS says so. Like the umpire said, “Some is balls, and some is strikes, but until I calls ‘em, they ain’t nuttin’!” Which does not end the debate, of course, I’m just putting it in its proper perspective for you. Anyone is free to argue for a constitutional interpretation at odds with the Supreme Court’s. ---
**Author:** ![nogravity](https://avatars.discourse-cdn.com/v4/letter/n/9d8465/32.png) [@nogravity](https://boards.straightdope.com/u/nogravity)\ **Post date:** [June 30, 2012, 7:57pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/15 "2012-06-30T19:57:14Z")
> [@Lord\_Feldon](#): > > Some people think that judicial review itself is unconstitutional. You cannot win a debate with these people; the reality you live in does not exist to them. These are the kind of people that think rock always wins. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 30, 2012, 9:58pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/16 "2012-06-30T21:58:20Z")
> [@erislover](#): > > I feel like this kind of argumentation leads to the weirdness I stumbled across in Scalia’s dissent. He argued something like, “We can find cases where A=B but no cases where B=A.” Of course he didn’t say “A=B” he said “a tax is a penalty”. He did manage to fall short of saying “it depends on what your definition of ‘is’ is.” Can the government give a tax break to people that have children? Or is this a penalty for people who _don’t_ have children? To me these things are absolutely identical and if there is different legal language (tax / penalty) it would be related to things like “what other legislation applies,” for example the Anti-Injunction act. That’s not how I read the dissent. I’m no legal scholar, and consequently I am in no position to confirm or deny, but I read the dissent to say that penalties and taxes are very different things under the law. Obamacare goes at length to frame this as a penalty, not a tax, and the dissenting opinion says that it fits the definition–i.e., something is defined as a requirement (the mandate) and there is a fine / penalty that’s levied if you don’t comply. They pointed out there is no basis or precedent for a fine transforming itself into a tax by virtue of its materiality. They likewise pointed out that the law could well have been crafted to be completely constitutional, had they not avoided the dreaded T word. But they didn’t. Seemed perfectly logical to me, the dissenting opinion. The majority opinion seems a bit incoherent. It’s a tax or it isn’t. If it is, then the anti-injunction rule means they can’t rule on it. If it isn’t, then the mandate is unconstitutional. There may be a way to find the coherence in that, but it’s beyond my simple mind. > [@](#): > > So Roberts basically ruled, as far as my reading goes, “It’s a tax, but for the purposes of the anti-injunction the word ‘penalty’ was used so other tax-like issues didn’t arise.” And it was cast as a penalty for not having healthcare, but this is operationally equivalent to a tax break for having healthcare. Yes, I agree, that’s how it was framed. I can’t make sense of that, though. I agree with the dissent–ISTM as well that SCOTUS was forced to rewrite the law to shoehorn it into a constitutionally acceptable form, something they shouldn’t be doing. That said, I am very pleased that the commerce clause argument was dismissed. That would have been disastrous. As it is, I find it a decision I disagree with, but not ridiculously illogical (like, say, Kelo), other than the non sequitur I can’t resolve noted above (it’s a tax, or it isn’t). > [@](#): > > Which doesn’t suggest in itself that it is constitutional, mind, but would you like to eliminate all such encouragements embedded in the tax code? As I read it, again, it’s a pretty technical distinction, but an important one. We can all agree that the financial effects are identical, but as a matter of law, a fine is not the same as a tax. Feels like Roberts forced this one, but at least he did on narrow terms. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [June 30, 2012, 10:36pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/17 "2012-06-30T22:36:36Z")
> [@Stratocaster](#): > > That’s not how I read the dissent… They pointed out there is no basis or precedent for a fine transforming itself into a tax by virtue of its materiality. What they pointed out was that they saw taxes so onerous as to be considered a penalty, but no penalty so light as to be considered a tax. A equals B, but B doesn’t equal A? What basis does removing the symmetrical property of identity have? In the example they gave in the dissent, it wasn’t “rewriting the law” to consider a tax a penalty? It’s totally incoherent. > [@](#): > > It’s a tax or it isn’t. If it is, then the anti-injunction rule means they can’t rule on it. If it isn’t, then the mandate is unconstitutional. There may be a way to find the coherence in that, but it’s beyond my simple mind. What is the difference between a tax and a penalty? Common political discourse now frames _all_ taxation as penalties. E.g.: “Why should I be punished for being successful?” If there is a real distinction, it would be in laws like the Anti-Injunction Act. > [@](#): > > That said, I am very pleased that the commerce clause argument was dismissed. I’m not sure I agree. If they have the power, they have the power, and everyone seems to be claiming that they could have made the operationally equivalent maneuver just by using the word “tax”. If there’s a limit here, I don’t see it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 30, 2012, 10:46pm UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/18 "2012-06-30T22:46:18Z")
> [@Stratocaster](#): > > The majority opinion seems a bit incoherent. It’s a tax or it isn’t. It _seems_ incoherent, but it isn’t. The Anti-Injunction Act only applies to things that Congress expressly identifies as taxes (because it’s worded in exactly that manner). The constitutional taxing/spending power applies to anything that is functionally a tax. Congress didn’t call the mandate penalty a tax, but it works like one. Thus, it both isn’t a tax for statutory construction purposes and is a tax for constitutional construction purposes. > [@](#): > > The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. ---
**Author:** ![gamerunknown](https://avatars.discourse-cdn.com/v4/letter/g/6bbea6/32.png) [@gamerunknown](https://boards.straightdope.com/u/gamerunknown)\ **Post date:** [July 1, 2012, 12:54am UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/19 "2012-07-01T00:54:22Z")
> [@erislover](#): > > What basis does removing the symmetrical property of identity have? I’m guessing the argument was more along the lines of a set. A is a member of set B, but a member of set B is not necessarily A. I don’t get how it applies to this case though. > [@Saint Cad](#): > > My take is that the penalty/tax is unconstitutional since it is not a tax on income but an indirect tax. Some Libertarians argue income tax is unconstitutional because the president arguing in favour for it claimed the top bracket would never exceed 2% and that not all states were validly ratified in the union at the time of signing. Or something. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 1, 2012, 1:02am UTC](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814/20 "2012-07-01T01:02:00Z")
> [@erislover](#): > > What they pointed out was that they saw taxes so onerous as to be considered a penalty, but no penalty so light as to be considered a tax. A equals B, but B doesn’t equal A? What basis does removing the symmetrical property of identity have? In the example they gave in the dissent, it wasn’t “rewriting the law” to consider a tax a penalty? It’s totally incoherent. What dissent did you read? Here’s what I was referring to: > [@](#): > > 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.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). 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. I’m not getting where you’re inferring the syllogism you seem to think they constructed. More from the dissent: > [@](#): > > 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. Child Labor Tax Case, 259 U. S. 20, 38 (1922). I’d like to see a rebuttal to the dissent, because the majority opinion doesn’t seem to do the trick, and the dissent seems logically formulated to me. > [@](#): > > What is the difference between a tax and a penalty? Common political discourse now frames _all_ taxation as penalties. E.g.: “Why should I be punished for being successful?” If there is a real distinction, it would be in laws like the Anti-Injunction Act. Common discourse doesn’t invalidate terms of art in law. As noted in the cite provided, there is a distinction between a penalty and a tax _as a legal term_. There may well be room for debate where that boundary lies, but there is a boundary. > [@](#): > > I’m not sure I agree. If they have the power, they have the power, and everyone seems to be claiming that they could have made the operationally equivalent maneuver just by using the word “tax”. If there’s a limit here, I don’t see it. No, they have the power only based on a sound constitutional foundation. I don’t think they had one at all here, but I am at least glad SCOTUS didn’t decide the commerce clause provided the authority, since that basically would have granted Congress the power to compel a citizen to do virtually anything it could tenuously connect to interstate commerce, even when a citizen was not engaged in said commerce. [Next page](https://boards.straightdope.com/t/how-is-obamacare-being-upheld-unconstitutional/626814.md?page=2)