No. That’s exactly the point. The federal government did not believe it had the power to criminalize marijuana or machine guns, so they passed an enormous tax on them. And then prosecuted failure to pay that tax with harsh criminal penalties.
Nope. Still a $200 tax to buy a machinegun. The marijuana tax was replaced by the Controlled Substances Act in 1970 which outlawed it entirely.
You can opt out of car insurance entirely. Millions of New Yorkers do. Just don’t own a car.
And many (most?) states allow you to post a bond to ensure financial responsibility in lieu of having car insurance. Never heard of that option under PPACA.
Sorry, the part I was talking about was pages 62-63.
Your general thesis seems to be that if the taxing power can be used to modify behavior, it can be used to modify any behavior. However, you have to remember that this is rational basis review. Even Is there a legitimate government interest involved? Yes: expanding health insurance coverage. Is the enactment reasonably related to the interest? Yes. Easy peasy.
But someone is not being penalized for NOT going to the hospital, someone is being penalized for NOT buying insurance.
Hospitals and Insurance Companies are not one and the same.
It’s this “You Must Buy This Or Else Pay This,” aspect of the law that concerns me.
While others have responded that elections would curtail the possibility of these types of “buy this or pay x” laws, it is not beyond these Congress Critters from attempting to do so. Once one of these laws is passed, with the bickering between the parties, it would be near impossible for them to vote to revoke it.
Actually that last line makes me think I may not have to worry - it isn’t like Congress actually gets anything done anyway nowadays…
If the law had created a UHC instead, a lot of this concern would be moot.
Actually, I think the dunce cap thing might win my vote. 
Just wanted to say J. Roberts has risen tremendously in my esteem.
About 2 yrs ago, I was appointed as an administrative law judge. I know how hard I wrestle with even relatively insignificant cases, and how difficult it can be to reach a “correct” outcome.
I think we do a disservice to our judges when we suggest their decisions will be dictated by their personal philosophies, party loyalties, etc. (Of course, I’m not sure I’m ready to go so far as to say anything favorable of J. Thomas and Scalia - or Posner or Easterbrook as yet! ;))
J. Roberts really stepped to the plate, and IMO acted to avoid a clusterfuck of incredible magnitude. I respect the hell out of that.
Being from Rhode Island, with Chafee as the Governor, I’d vote for the dunce cap thing too
Car insurance can only be optional because it is possible to completely opt out of the risk category. You don’t have to own a car. You don’t have to drive a car. You can live your entire life without ever needing a car (or the few times you do, you can purchase a collision waiver from the rental car company–which is temporary insurance).
There is no option to not become sick. The risks are completely different. If you never own or drive a car, you can never cause property damage or bodily injury with a car. Even if you *never *take risks, your house can still get hit by a falling safe. Or an arsonist could set fire to your home. Or you could develop breast cancer in your 40s. People who opt not to purchase health coverage are gambling with everybody else’s money, and it’s good to put a stop to that.
Well, it’s not an exact analogy, but I’m trying to figure out how the mandate differs from, say, a seat belt law, or being required to carry flotation devices on a boat. In both cases, you are required to pay more money to the manufacturer than you would if you decided to take the risk and not pay for the safety equipment. And if you remove the safety equipment from your car or boat, then you can get severely fined.
I mean, you generally don’t hear people saying “I work a part time minimum wage job and I’m a good driver, so why can’t I buy a cheaper car with no seat belts?”
Okay, so they don’t have the power to tax wearing purple shirts on Christmas, but this invites them into every realm of life, just like plenary state powers. Rational basis review is not much of a standard.
Certainly my examples of using taxes to overturn Lopez and Morrison illustrate how the commerce clause arguments are now empty tigers..
Those are state laws. It is pretty well accepted that states can require these sort of adherance to regulations while the Fed’s right to so regulate was until today questionable.
Well said. One could get a sense during oral arguments that Roberts was searching out the law on the subject, not rooting around in political principles. Honestly, the man’s done nothing so far to earn my disrespect.
Yes, and this is key. It seems some have missed the part where Roberts, in the decision states that the federal government said essentially everyone is already, or will be, in the healthcare market, therefore there is no requirement that they join the market, as everyone is, essentially in. The decision states agreement with this.
So, everyone’s in and there are 5 types of healthcare consumers:
1, 2, and 3 pay for 5. Why shouldn’t 4? Aren’t 1-3 being penalized by being charged higher premiums to cover the unpaid costs of 5? Under the current system only those WITH insurance are paying for those without insurance who need healthcare. Why shouldn’t those without insurance pay for 5?
You two are killing me. That’s easy to say when he switches to your side. I’m sure that if the mandate was struck down with Sotomayor switching sides, conservatives would be here blushing about how “fair” she was.
“Fair” seems to mean “saw things my way” 
Were you privy to these meetings?
It would be very interesting to hear (I guess in another thread–or in a reddit AMA even!) what kinds of decisions were typically made at such meetings…
Nope. First seat belt law was Federal. You didn’t have to wear the seat belt, but you couldn’t buy a car without them.
No, but your side has always argued for judicial restraint anyway. The point of the rational basis analysis is that the parties didn’t even bother to argue it. The states’ brief was completely devoid of argument that this enactment went beyond the taxing power; they only argued that it wasn’t a tax, and hence did not invoke the taxing power.
Everyone seemed pretty resigned to the idea that Congress could impose such a tax.
They do, in the form of high costs that they have to pay out of pocket. The trouble with 4 is that they can easily become 5 just by getting the wrong disease, or having the bad luck to be in the path of a drunk driver.
Of course they could. If Congress instead had created UHC and funded it by tax increases then they could have cited precedent that upheld Social Security on Taxing and general welfare grounds.
Having the political will to do so is an entirely different matter.
To a degree. John Roberts was appointed with the express purpose of not seeing things “my” way. To break from that speaks to his own personal conscience and erudition.
And, for the record, conservatives would be right about Sotomayor had she done the same thing for a cogent legal reason. That really is a good definition of integrity.