Scotus Upholds PPACA, but calls the individual mandate a "tax"

[Mr. Happy]

Even though I am a staunch conservative and will no doubt be castigated by some of my fellow conservatives for this position, I actually have reserved judgment on the Court until I've read the opinions (not someone else's view on the opinions), which, unfortunately, won't be until I finish this third book manuscript in late July. I was really hoping for a 9-0 vote one way or the other, but I guess that I was engaging in wishful thinking. By classifying the individual mandate (which won't affect me directly since I have the good fortune and sense to have personal health insurance) as a "tax," it might create a backlash against taxes in general, which I could favor very much. You'll no doubt hear plenty of self-righteous bullshit about activist judges, but I won't be listening to any of it. I think that politics is almost inseparable from the realities of judgment. Your views on politics inevitably cloud your judicial thinking. I'm actually more frightened of putting a politically heretofore benign person on the Court. David Souter actually was a pretty piss poor excuse for a justice. Thankfully, he commuted our respective life sentences to time served by retiring. He could have hung on until he was a dribbling old fool in a Depends. I do respect him for getting off of the Court though.

[Limey]

I have seen people say - after the mandate was upheld as a tax - that not doing so would open the door for people to challenge taxes in general.  I'm no lawyer, and I didn't stay at a Holiday Inn last night, so I have no idea.

I agree that the politics of this thing has steamrollered most debate about the actual constitutionality of the elements of the bill.  I think most pudnits, and many politicians, are gobsmacked that the Supreme Court appeared to do exactly that.  You know...their job.

[Mr. Happy]

I have seen people say - after the mandate was upheld as a tax - that not doing so would open the door for people to challenge taxes in general.  I'm no lawyer, and I didn't stay at a Holiday Inn last night, so I have no idea.

I agree that the politics of this thing has steamrollered most debate about the actual constitutionality of the elements of the bill.  I think most pudnits, and many politicians, are gobsmacked that the Supreme Court appeared to do exactly that.  You know...their job.

I have purposely turned off all television and radio and am listening to my ipod as I write because the talk will be nothing but hyperbole about either how good or how bad this decision is. Since I haven't read it, I have no fucking idea. However, given that some of our nation's best and brightest work for SCOTUS and wrote and researched for the opinion, I'm certainly not going to jump to conclusions with lots of other conservatives and call the opinions "wrong" or "stupid" or "activist" or anything inanely cliche like that.

[HudsonHawk]

I think most pudnits, and many politicians, are gobsmacked that the Supreme Court appeared to do exactly that.  You know...their job.

I think most are gobsmacked that the vote didn't go 5-4 along party lines.  I think Roberts got it right when he said "it's not our job to protect people from the consequences of their political choices".

[sporadic]

I think Roberts got it right when he said "it's not our job to protect people from their political choices".

This, absolutely. 

[BizidyDizidy]

I've been reading the opinion, and it makes sense to me. The federal government levies plenty of taxes to encourage wanted behavior (try and buy a pack of cigarettes). Hard to really argue that the mandate is any more than that at the end of the day.

I like that they both struck down the commerce clause justification (that fucker is broad enough as it is), and protected state sovereignty on the medicare side.

[Limey]

Another wrinkle I've read is about the Medicaid expansion.  From what I understand, the Act expanded Medicaid to people earning up to 133% of the poverty line, and the Federal Govt. would reimburse the States for the additional expense...for a while at least (it drops to 90% in 2020, for example).  If States opted out of the expansion, they would lose all of their Federal Medicaid dollars.

The Court ruled that they could offer the carrot, but not the stick.  So the States can opt out of the expansion, but maintain their existing Medicaid program and Federal assistance.

The question now is: what does this do the Federal policy across the board going forward?  I don't think it's unusual for the Feds to threaten penalties on States who didn't comply with Federal policy - Louisiana being forced to increase its drinking age from 18 to 21 or face losing road funding is an example that springs to mind.  Well maybe now the Feds have lost the ability to do that to LA or any other State about anything.

Interesting...

[EasTexAstro]

I have seen people say - after the mandate was upheld as a tax - that not doing so would open the door for people to challenge taxes in general.  I'm no lawyer, and I didn't stay at a Holiday Inn last night, so I have no idea.

I agree that the politics of this thing has steamrollered most debate about the actual constitutionality of the elements of the bill.  I think most pudnits, and many politicians, are gobsmacked that the Supreme Court appeared to do exactly that.  You know...their job.

I am at a loss to find what I had read recently, and of course I am no lawyer, but there was something about not being able to sue the federal government over taxes? Maybe  read it wrong. The only way this is constitutional is by calling it a tax, if I understood the discussion by real lawyers. BO insisted it wasn't a tax, but it wouldn't be legal otherwise.

[EasTexAstro]

I think most are gobsmacked that the vote didn't go 5-4 along party lines.  I think Roberts got it right when he said "it's not our job to protect people from the consequences of their political choices".

+1

[BizidyDizidy]

Another wrinkle I've read is about the Medicaid expansion.  From what I understand, the Act expanded Medicaid to people earning up to 133% of the poverty line, and the Federal Govt. would reimburse the States for the additional expense...for a while at least (it drops to 90% in 2020, for example).  If States opted out of the expansion, they would lose all of their Federal Medicaid dollars.

The Court ruled that they could offer the carrot, but not the stick.  So the States can opt out of the expansion, but maintain their existing Medicaid program and Federal assistance.

The question now is: what does this do the Federal policy across the board going forward?  I don't think it's unusual for the Feds to threaten penalties on States who didn't comply with Federal policy - Louisiana being forced to increase its drinking age from 18 to 21 or face losing road funding is an example that springs to mind.  Well maybe now the Feds have lost the ability to do that to LA or any other State about anything.

Interesting...

They discussed that in the opinion - the road funding examples were very mild - e.g. 5% of road funding which made up less than half a percent of the state budget. They viewed that as not unreasonably coercive. Federal medicare funds are 10+% of the state budget.

[BizidyDizidy]

I am at a loss to find what I had read recently, and of course I am no lawyer, but there was something about not being able to sue the federal government over taxes? Maybe  read it wrong. The only way this is constitutional is by calling it a tax, if I understood the discussion by real lawyers. BO insisted it wasn't a tax, but it wouldn't be legal otherwise.

There is a law that says you cannot challenge taxes until after you have paid them (it's so the government can have some near-term assurance of revenue without having everything tied up in court forever). One argument was that this appeal was invalid because no one has paid the penalty/tax on the mandate yet. Court ruled that for the purposes of that act, the mandate was a penalty and not a tax. It's a bit of a threading the needle, because he upheld the constitutionality of the mandate because it was a tax, not a penalty, but when you read the opinion/reasoning it makes sense and there seems to be a fairly direct precedent.

[EasTexAstro]

There is a law that says you cannot challenge taxes until after you have paid them (it's so the government can have some near-term assurance of revenue without having everything tied up in court forever). One argument was that this appeal was invalid because no one has paid the penalty/tax on the mandate yet. Court ruled that for the purposes of that act, the mandate was a penalty and not a tax. It's a bit of a threading the needle, because he upheld the constitutionality of the mandate because it was a tax, not a penalty, but when you read the opinion/reasoning it makes sense and there seems to be a fairly direct precedent.

Thank you for the clarification.

[jbm]

I think most are gobsmacked that the vote didn't go 5-4 along party lines.  I think Roberts got it right when he said "it's not our job to protect people from the consequences of their political choices".

While this is true, does a SC Justice really need to say shit like this?  It is either constitutional, or it isn't; his job isn't to provide social or political commentary. 

[BizidyDizidy]

While this is true, does a SC Justice really need to say shit like this?  It is either constitutional, or it isn't; his job isn't to provide social or political commentary. 

How is that social or political commentary?

[HudsonHawk]

While this is true, does a SC Justice really need to say shit like this?  It is either constitutional, or it isn't; his job isn't to provide social or political commentary. 

That isn't social or political commentary, he's explaining his reasoning for upholding a clearly unpopular law.

[Bench]

I've been reading the opinions - I've gotten through Roberts' majority and Ginsberg's concurrence but haven't made it to the dissent yet.  What's interesting from a scholarly perspective is that Roberts drew a line in the sand in commerce clause powers over the active versus passive nature of regulated economic activity which had never really been articulated before.  Ginsberg took him to task calling that analysis, or test, rigidly formal and that it ignores the economic realities of diverse markets. 

Bizidy very succinctly explained the expansion of medicaid analysis in contrast to the 21 drinking age case and there's not much I can add to that other than noting Roberts' use of the classic line that "Your money or your life" is a coercive statement regardless of whether you have $1 in your pocket or $500.

I'm interested to see how the dissent explains that congress doesn't have the power to tax people for not having health insurance, but alas I have actual work to do.

[BizidyDizidy]

I'm in the middle of Ginsburg's concurrence as well, and wondering the same thing. My guess is they will say it's not a tax.

[Bench]

While this is true, does a SC Justice really need to say shit like this?  It is either constitutional, or it isn't; his job isn't to provide social or political commentary. 

Which is exactly his point.  He's not saying whether it is a good law or a bad law - that is not the role of the judiciary.  Judicial review merely can determine whether the law is permissible or not.

[Bench]

That isn't social or political commentary, he's explaining his reasoning for upholding a clearly unpopular law.

Don't the polls show that the law is generally popular?

[HudsonHawk]

Don't the polls show that the law is generally popular?

I thought it was the opposite, but I haven't been keeping a close eye on it, especially once it went to the SCOTUS.