My prediction is that this will now go to each state (as it should have under the Constitution) to decide and as many will find out (like we did in Colorado) that people want better coverage than $8000 a year insurance that doesn’t pay for anything but NOT single-payer since Oh Noze taxes. So we’ll end up back where we were before Obamacare which is right where we were DURING Obamacare … paying outrageous premiums for health insurance that doesn’t pay for anything.
One can hope the people will also notice which party brought back pre-existing conditions and lifetime caps.
In all fairness, many could not afford the insurance after the companies jacked up their rates OR the insurance companies left the exchange in the poorer counties.
One of the cardinal rules of statutory construction is that a legislature is presumed to know of its prior enactments. If I understand correctly (and please correct me if I am wrong) the individual mandate is still on the books, but the tax penalty for violating it is $0. Therefore, the argument goes, it is not a tax, and as it was only held to be constitutional by a 5-4 vote because it WAS a tax, then the Supreme Court, logically, would now strike it down 5-4 as not a valid power of Congress. I’m with you there.
But the Court seems to suggest that Congress would not want the sub provisions to stand without an effective individual mandate because of the death spiral arguments. Indeed the 2010 Congress and Obama himself argued that very thing. But the 2017 Congress nonetheless repealed the individual mandate and left the rest of the provisions intact. I’m not seeing how it could be suggested that Congress considered the individual mandate absolutely essential to the entire law when it gutted the provision.
The Court seems to argue that an individual mandate with no penalties, now unconstitutional because it is not a tax, is so essential to the rest of the law that the rest of the law must fail. How can that be so? Surely Congress must have known that a law with no penalties will have a very low compliance rate and not base its comprehensive scheme on such a law.
Article III standing seems to be an issue as well. If I choose not to buy health insurance this year and am faced with a tax penalty of $0, how am I harmed? What can a court do to redress my harm? Order that I do not have to pay $0?
Again, I dislike the ACA as much as the next guy, but this seems to be results-oriented judging.
I’ve been reading some analysis on this issue, and it seems like there’s an apt medical analogy.
The individual mandate is now a vestigial organ, like the appendix. And as we all know, if something goes wrong with a vestigial organ like the appendix, doctors have no choice but to euthanize the patient. The judge was just acting like any responsible doctor would.
“…without violating the basic economic and governmental principles of the party?”
Such principles do not exist, therefore they will do anything that is politically beneficial just like the Democrats. This will probably include an increase in spending of some kind.
I disagree. It is not the proper purpose of a court to strike down a bad law. The people, through their elected representatives, have the right to enact all sorts of laws that I personally consider bad. See, e.g. the Driving with Measurable Amount thread.
If Congress has enacted a law, which combined with each other, enacts a worthless individual mandate with many other provisions that arguably depend on the effectiveness of the individual mandate, then we can say that it is a terrible law, but the courts do not strike down laws because they are bad.
And to nail Roberts again (as I did six years ago) Congress can outlaw everything, but not say it is against the law but impose a 1 cent tax on everything and then prosecute people for not paying the 1 cent tax?
It is form over substance and should not be part of the governing law of the country. See my destroyed Apprendi thread.
I suggest you re-read Ravenman’s post.
2016 taught me that depending on the American public to be informed, moral and rational is not a winning strategy.
I’m sorry but would you mind clarifying or expanding on this first paragraph? I’m not entirely clear on your meaning
Roberts held that the ACA was not supported under the interstate commerce clause as it involved economic inactivity instead of economic activity. He nonetheless stabbed conservatives in the back with his novel theory that it could survive as a tax under Congress’ taxing power.
But as I said in 2012 and continue to believe, such a construction of federal power is ridiculous as the logical extension of that holding means that Congress could simply tax everything in human existence and regulate it that way.
For example:
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You cannot outlaw guns in school zones, but enact a $1 possessing a gun in a school zone tax and prosecute people who did not pay it in advance. See Lopez.
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You cannot give a civil remedy to domestic violence victims, but enact a $1 tax for beating on your wife, and prosecute people who did not pay it in advance. See Morrison.
or what they have actually done
- Enact a $200 tax on the possession of a machine gun and refuse payment for the possession of any new machine gun possessed after 1986.
That makes no sense if we are saying that ours is a federal system where the powers of the national government are few and defined while the powers left to the states are vast and many and it gives a guideline for any future Congress to define its own power.
It merely elevates form over substances as I argued in the Apprendi thread. In that case, the Court held it to be illegal to add to a 10 year sentence because of a finding by the judge of a racial motivation, but nothing would stop a state from having a default 15 year penalty and require a judge to downgrade the sentence to 10 years if no racial bias was in play.
When you can come to exactly the same result by doing an end run around some grand rule that was created, then the rule is silly.
Eh, I get what you’re saying and agree to some degree but I think the devil is in the details here. First of all, controversial uses of the Power to Tax has often been viewed by the Court with as much skepticism, if not more, than use of the Commerce Clause powers. Remember the famous quote from McCulloch that, “…the power to tax is the power to destroy.”?
And with your first example we’re talking about possible infringement of a Constitutional Right. Not only is the bar already high but consider the following related to taxing firearms : if the purchase of a firearm is taxed at a reasonable, non-onerous level then anyone purchasing one has fair notice of the cost ahead of time. But imposing a tax on possessing a firearm in a school zone would necessitate anticipating one’s movement and future plans to such an extent that I think it would be found to be an unconstitutional burden on one’s exercise of the right to bear arms. And since school zones extend on to public thoroughfares it might even implicate Freedom of Association, or at least one could make the argument that you’re forcing the choice between two Rights, not exercising your right to arms and going where you choose or exercising your 2A rights and limiting your movement on public streets and sidewalks. Plus, I think you could make pretty strong Procedural and Substantative Due Process arguments as well. I don’t think such a tax would survive at the trial level (hopefully) and definitely not on appeal.
With regards to the second example don’t forget the legal Maxim that “for every wrong there is a remedy and if there is no remedy there is no wrong.” If domestic violence remains a crime and the victim has suffered damages (how could they not?) then it would be hard to argue there is no “wrong” and without a civil cause of action there would be no “remedy.” So I’m betting that wouldn’t hold up either.
Example 3? Yeah, that’s dumb.
And the law frequently places great importance on form. It’s why we have Procedural Due Process, it’s why we exclude improperly obtained evidence regardless of it’s probative value, and it’s ultimately why we let people whose guilt we are virtually certain of go free because the “form” was not followed in some way.
Though not raised, AFAICT, I could imagine one more legal claim that could be raised should the Individual Mandate be severed leaving the rest of the ACA intact. Insurers might raise a Takings claim.
The argument is that the intact PPACA may permissibly require an insurer to sell a policy at a loss (to someone with known pre-exisiting conditions) only because the insurer receives value from the Individual Mandate coercing healthy individuals to purchase coverage to avoid a penalty.
With the penalty repealed and the Individual Mandate ruled unconstitutional, the remaining PPACA simply compels insurers to sell at a loss to those with pre-existing conditions with no coercion of sufficient healthy customers to compensate. Government would thus be taking from the insurer. An insurer could thus argue that the ban on underwriting based on pre-existing conditions in the absence of an Individual Mandate is unconstitutional with the appropriate remedy to rule that portion of the PPACA invalid. Death by a thousand cuts.
Eh, the Takings Clause of the 5th Amendment refers to the Gov’t’s use of eminent domain to seize “real property” (land, real estate, improvements, etc) for public use and not just property in general. I realize the language of the Amendment doesn’t make that distinction but I’m unaware of any court that has extended it beyond that basic framework
I don’t see how that would be a taking. It might be a terrible deal for the insurance company and a terrible law overall, but how is it a taking? The government forces businesses, especially insurance companies, to comply with laws all of the time that increase their cost of doing business.
I am talking about federal power, not state. Roberts made a distinction that even if the feds could not regulate something directly because it had no Article I power to do so, it could still tax it. So:
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Heller specifically said that it did not challenge the idea that guns could be banned in schools. Lopez struck down the law because there was not sufficient evidence of interstate commerce. So what if the government taxed the possession of guns in school zones? That would seem legit.
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As far as domestic violence, I am not saying that there is no remedy for it. What I am saying is that it is a state level crime to be dealt with by states. The feds have no business enacting a federal civil remedy for it, and Morrison held it to be invalid. But what about a domestic violence tax? Roberts seems to say it would be okay.
My criticism was that Roberts elevated form over substance by allowing the government to tax anything it wants, but pretended to announce how very limited the powers of the federal government were.
But back to this thread. I think the first question needs to be “Is a purported tax of $0 a tax?” If we say no and therefore the whole of the PPACA must fail, then could a 1 cent tax allow it to survive?
If, so then what sort of ridiculous jurisprudence is that? Does anyone want to argue that such a thing would make sense?
Ok I misunderstood the context of your domestic violence example. And with your gun example you’re coming up against one or more Constitutional Rights so as I said I don’t think that would survive that level of scrutiny.
I get what you’re saying about the Gov’t being able to use its Power to Tax to achieve regulatory goals that would normally fall outside its limited powers. And I agree that’s not the way our jurisprudence should have developed. We probably have much more in common in our views on politics and legal philosophy than we have differences.
But I also don’t envy the position Roberts was in, especially with his well-known concerns about the reputation of the Court. And he was also following SCOTUS precedent dating back to *Steward Machine *. And unfortunately if there was a case for the Court to start moving us back to pre-*Steward Machine * jurisprudence this probably wasn’t it due to the political realities. I think it would’ve been a case of winning the battle and perhaps not losing the war but making it a helluva lot more brutal and bloody.
As to the tax, I would hope that the Court wouldn’t find that one of $0 would meet any reasonable definition of a tax because it would produce no revenue. But a tax of 1¢ would literally be a tax by any objective definition. Nominal may mean that it just barely meets the definition but it doesn’t mean that it doesn’t still meet the definition at all. It may be worthy of an eye-roll but that’s about it. And wouldn’t declaring it not a tax because you feel it is only nominally one create another problem? At what amount does it magically become a tax? $5? 10? $100? Some percentage of income or wealth?
And I’m fairly sure you’re not a fan of judicial activism. Couldn’t a court declaring a tax to not be a tax because it feels the amount to be insufficient be argued to be just that? And if the Court imposed its own version of what would be sufficient couldn’t that be argued to be an even stronger example of an activist Court?
In the end, I’m not too worried, at least not yet. Taxes are never exactly popular except maybe some vague notion about taxing the rich fat cats their “fair share.” If the trend continues in any meaningful way then at some point it will hit a breaking point, either politically or jurisprudentially.