# SCOTUS's decision on The Health Care Law 6/28/12 **URL:** \ **Category:** Great Debates\ **Created:** [June 27, 2012, 7:56pm UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499 "2012-06-27T19:56:28Z")\ **Posts on this page:** 20\ **Page:** 24
**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, 5:12pm UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/461 "2012-06-30T17:12:43Z")
Forget about mortgages. Social Security is an easier comparison. If you have income, you pay into Social Security. The only way to opt out is by having no income. If you have income, you pay for health insurance. You can opt out by having no income. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 30, 2012, 5:23pm UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/462 "2012-06-30T17:23:29Z")
> [@Frylock](#): > > Functionally equivalent, so that should be conceded. But I don’t think the difference that there is (the difference in how the two calculations are articulated to the taxpayer) is meaningless. > > And it turns out (in my opinion) the distinction between a penalty and a reward lies in exactly this–what is said about what causes the outcome to be what it is. I can agree with this. I believe that the legality of an action (or, in this case, the Constitutionality of a law) must be based on function, not rhetoric. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [June 30, 2012, 8:31pm UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/463 "2012-06-30T20:31:40Z")
> [@Left\_Hand\_of\_Dorkness](#): > > I can agree with this. I believe that the legality of an action (or, in this case, the Constitutionality of a law) must be based on function, not rhetoric. How do you feel about hate crime laws? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 30, 2012, 9:11pm UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/464 "2012-06-30T21:11:25Z")
> [@Frylock](#): > > How do you feel about hate crime laws? I’m ambivalent, but lean toward the belief that hate crimes have an added function, much like acts of terrorism, that create secondary harm, and they should therefore be punished worse. But if you want to pursue that, we should probably start another thread; the short answer is that if I didn’t believe there was an added real-world consequence of a hate crime, I wouldn’t advocate additional punishment for them. ---
**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, 9:37pm UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/465 "2012-06-30T21:37:54Z")
> [@Frylock](#): > > How do you feel about hate crime laws? Hate crime legislation- in the US- doesn’t make things illegal based on rhetoric. It just makes certain things _more_ illegal. If we had laws against thoughtcrime like the British “inciting racial hatred” or German anti-Nazi ones, it’d be different. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [July 1, 2012, 12:25am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/466 "2012-07-01T00:25:09Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, they did what they have always done, and construed the law in such a way as to render it constitutional. Constitutional avoidance is among the court’s most firmly established rules of construction. I’ve been without power since last night so I have not been able to post. SCOTUS had 3 days of briefings on Obamacare and did not ask the government to argue that the penalty was a tax. Roberts and the majority pulled this argument out of thin air. Roberts’ decision itself is inconsistent and tortured. The penalty is sorta like a tax but it’s not a tax for the purpose of the AIA. What kind of a tax is it? Roberts tells us not to obsess over semantics. It is not a direct tax. It is not an income tax…congress has plenty of practice writing income tax laws and they certainly did not write one here. It’s not a duty or excise tax. Many here, including you, have decided that that it is an income tax charged to everyone and refunded to those who purchase insurance. That’s bullshit. Congress did not write that and have denied that the mandate is a tax at all. There is SCOTUS precedent about what counts as a penalty vs. a tax and they are NOT interchangeable. The dissent in this case writes that a tax has been ruled a penalty but never has a penalty been ruled a tax. The majority effectively rewrote the penalty as a tax. If, as you suggest, SCOTUS wanted to find this law constitutional, they could have done that easily under the commerce clause (even though conservatives would disagree with it). The court neither expanded nor narrowed the scope of the commerce clause yet they have opened the door for the government to tax us, individually if necessary, for anything they want. In theory, congress could pass a tax increase and give everyone a credit except people who post in SDMB under the name **Really Not All That Bright**. Regardless of how you feel about the individual mandate I think we have all lost quite a bit of our liberty with this decision. The branches of government were designed to each jealously protect the power they have. The situation we have now is all three branches together guarding their collective power against the populace. SCOTUS diminished its power with this decision and handed it over to Congress. ---
**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:** [July 1, 2012, 12:43am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/467 "2012-07-01T00:43:23Z")
> [@yorick73](#): > > I’ve been without power since last night so I have not been able to post. > > SCOTUS had 3 days of briefings on Obamacare and did not ask the government to argue that the penalty was a tax. Roberts and the majority pulled this argument out of thin air. Nope. It was not the main thrust of the government’s argument, but they did contend that it should be considered a tax. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [July 1, 2012, 1:03am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/468 "2012-07-01T01:03:35Z")
> [@Martin\_Hyde](#): > > FWIW, after reading Robert’s opinion, he changed my mind–I agree with him it can reasonably be seen as part of the taxing power. I also thought it was a reasonable interpretation. And as much as I thought the commerce clause would do the trick, I can understand why Roberts found that insufficient. > [@yorick73](#): > > SCOTUS had 3 days of briefings on Obamacare and did not ask the government to argue that the penalty was a tax. I have not read the oral arguments, but I have heard people say there were hints the court wanted to go in this direction based on their questions. > [@](#): > > Roberts and the majority pulled this argument out of thin air. Doesn’t matter. > [@](#): > > The penalty is sorta like a tax but it’s not a tax for the purpose of the AIA. What kind of a tax is it? I don’t understand the problem you are having with this. Roberts says it is like a tax in some ways and not others, and it’s Constitutional under Congress’ taxation powers. He describes this in the first three or four pages of the decision. He doesn’t have to say what kind of tax it is, whatever that means. He’s talking about the Constitutional authority to levy the penalty. ---
**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:** [July 1, 2012, 1:03am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/469 "2012-07-01T01:03:46Z")
> [@yorick73](#): > > Congress did not write that and have denied that the mandate is a tax at all. There is SCOTUS precedent about what counts as a penalty vs. a tax and they are NOT interchangeable. The dissent in this case writes that a tax has been ruled a penalty but never has a penalty been ruled a tax. The majority effectively rewrote the penalty as a tax. The dissent said a lot of things. That doesn’t make them so. The penalty was described as a tax numerous times during debate on the bill, by both sides. If you look at the government’s brief, which I linked to in a couple of other threads, you’ll see lots of references to those mentions. > [@](#): > > I’ve been without power since last night so I have not been able to post. I hope you get it back soon, and stay safe. We were without power for two weeks during Hurricanes Charley and Frances and I know how bad it can suck. ---
**Author:** ![Finagle](https://avatars.discourse-cdn.com/v4/letter/f/b19c9b/32.png) [@Finagle](https://boards.straightdope.com/u/Finagle)\ **Post date:** [July 1, 2012, 1:16am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/470 "2012-07-01T01:16:28Z")
> [@yorick73](#): > > In theory, congress could pass a tax increase and give everyone a credit except people who post in SDMB under the name **Really Not All That Bright**. > > Regardless of how you feel about the individual mandate I think we have all lost quite a bit of our liberty with this decision. The branches of government were designed to each jealously protect the power they have. The situation we have now is all three branches together guarding their collective power against the populace. SCOTUS diminished its power with this decision and handed it over to Congress. I’m not quite sure I follow this “loss of liberty” argument. The government already had the power to tax the living bejeesus out of me at the behest of Congress. This penalty/tax was instituted at the behest of Congress. So, like all taxes, you have a redress if you don’t like it, which is to elect people who will lower or eliminate the tax. And you can make the judgement if the increased quality of health coverage is worth it or not. Further, the government already has much greater power over its citizens. The United States could, conceivably, draft me, send me to some godforsaken foreign sandpit and then order me to eat broccoli for the next two years in between dodging RPG rounds. Compared to that frightful power, I’m not convinced that being coerced into buying health insurance is that big a deal. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [July 1, 2012, 1:18am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/471 "2012-07-01T01:18:15Z")
> [@yorick73](#): > > Regardless of how you feel about the individual mandate I think we have all lost quite a bit of our liberty with this decision. What liberty have we lost? The liberty to not have insurance without paying a penalty for it? That’s not “quite a bit” of liberty, that’s a trivial liberty to do something unwise that burdens society. It’s very odd to me that, when all three branches of government agree that an action is constitutional, including two branches that we the people elected, you somehow think that’s hurting we the people. You live in a democracy; democracy worked the way it’s supposed to. Be joyful. ---
**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:** [July 1, 2012, 1:22am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/472 "2012-07-01T01:22:37Z")
> [@yorick73](#): > > SCOTUS had 3 days of briefings on Obamacare and did not ask the government to argue that the penalty was a tax. So what? The government had already argued it in [its brief](http://sblog.s3.amazonaws.com/wp-content/uploads/2012/01/11-398tsUnitedStates.filed_..pdf). See page 52 as numbered (not page 52 of the .pdf). ---
**Author:** ![straight\_man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/straight_man/32/3027_2.png) [@straight\_man](https://boards.straightdope.com/u/straight_man)\ **Post date:** [July 1, 2012, 1:33am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/473 "2012-07-01T01:33:49Z")
> [@lance\_strongarm](#): > > So is the government forcing me to quit my job because it taxes income? Right — assuming I understood what was said earlier, the important distinction is whether a tax is high enough to be coercive. You plainly have a choice if a fine is, say, $10; you plainly don’t if a fine is, say, $10,000,000. Did I get this right? > [@Saint\_Cad](#): > > No you are not so just stop this meaningless argument. You are rewarded for having a mortgage which is not a punishment for those without. > > If you pass a test, I give you a piece of candy, otherwise you don’t. Are you punished for failing the test? Hint: [look at definition 3](http://en.wiktionary.org/wiki/punishment) > > If you fail a test I punch you in the face, if you pass then nothing happens. Is that a punishment if you fail? Is it a reward if you pass? Nope, it’s not a meaningless argument. The government gets to decide tax levels in the first place; so taxing you $X and fining you Y if you don't do something is, by any reasonable account, \*precisely\* the same as taxing you (X+Y) and giving you a $Y rebate if you do it. A better analogy would be this: if you fail the test, I’ll give you a piece of candy. If you pass, I’ll give you two pieces. Are you being rewarded for passing the test or punished for failing it? They mean the same thing. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 1, 2012, 1:53am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/474 "2012-07-01T01:53:40Z")
> [@Left\_Hand\_of\_Dorkness](#): > > What liberty have we lost? The liberty to get emergency/catastrophic health care at _everyone else’s_ expense. And the liberty to tell ourselves the comforting falsehood that we’re thereby \*taking \*individual responsibility, not shirking it. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 1, 2012, 1:58am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/475 "2012-07-01T01:58:58Z")
**straight man** is correct. another difference is that with the mortgage deduction, the government is encouraging you to purchase a home. If you don’t, fine. That’s the baseline. With Obamacare, the government is forcing you to buy something or suffer a penalty. It’s saying that you MUST spend money on something it views as a “good” How about if the government views it as “good” to go to a health club, see a psychiatrist every month, own a firearm for self-defense? Would you who think the recent ruling is just fine be fine with either doing those things are having to pay a fine or tax? ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 1, 2012, 2:00am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/476 "2012-07-01T02:00:45Z")
> [@ElvisL1ves](#): > > The liberty to get emergency/catastrophic health care at _everyone else’s_ expense. And the liberty to tell ourselves the comforting falsehood that we’re thereby \*taking \*individual responsibility, not shirking it. If you’re forced to do something you’re hardly demonstrating individual responsibility. The difference is like paying your taxes, which you have to, or donating to a charity or working at a food kitchen—without being forced to. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [July 1, 2012, 2:11am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/477 "2012-07-01T02:11:42Z")
> [@magellan01](#): > > How about if the government views it as “good” to go to a health club, see a psychiatrist every month, own a firearm for self-defense? Would you who think the recent ruling is just fine be fine with either doing those things are having to pay a fine or tax? No, and you damn sure bet I’d vote against the bastards who make me do that not-fine thing, just like I vote against the bastards who do other things I dislike. …or are you asking me if I think it’d be unconstitutional? No, I don’t think it would be. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 1, 2012, 2:17am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/478 "2012-07-01T02:17:01Z")
> [@Left\_Hand\_of\_Dorkness](#): > > No, and you damn sure bet I’d vote against the bastards who make me do that not-fine thing, just like I vote against the bastards who do other things I dislike. > > …or are you asking me if I think it’d be unconstitutional? No, I don’t think it would be. Did you have the same assessment of its constitutionality prior to the SCOTUS ruling? ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [July 1, 2012, 2:17am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/479 "2012-07-01T02:17:07Z")
Can I ask a question to conservatives in general? Are there any of you that are able to understand that not buying a house and paying more taxes is the same thing as not buying health insurance and paying more taxes? It’s weird how the conservatives that have spoken up uniformly seem to be unable to process that information. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [July 1, 2012, 2:18am UTC](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499/480 "2012-07-01T02:18:14Z")
> [@magellan01](#): > > If you’re forced to do something you’re hardly demonstrating individual responsibility. The difference is like paying your taxes, which you have to, or donating to a charity or working at a food kitchen—without being forced to. You’re not forced. You’re free to pay the new normal tax for people who don’t buy insurance. [Previous page](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499.md?page=23) [Next page](https://boards.straightdope.com/t/scotuss-decision-on-the-health-care-law-6-28-12/626499.md?page=25)