Many of you who aren't lawyers or law students likely have two questions after watching today's news coverage. First, how did CNN and Fox get the decision so wrong initially, and how is the tax not a tax in one sense and a tax in another sense? To the former question I would offer up a pithy putdown of CNN and Fox, but we all know how I feel about the mainstream media in general. Let us move on without redundant rants.
To the latter question, I want to draw your attention to two analyses that were done on the penalty for failing to purchase health insurance. The first analysis is statutory; that is, the analysis is done as it relates to the Anti-Injunction Act, which bars people from suing to stop a tax before it is collected. A person can only sue over a tax after they've already paid it under the Anti-Injunction Act. This is a nice congressional method used to dissuade people from challenging new taxes by removing the possibility of an injunction to stop the tax in question before it can begin.
The second analysis is constitutional; that is, whether or not Congress has the power to levy a tax in a particular instance. Does a penalty for failing to buy health insurance fall within the power of Congress as it relates to the Tax Power?
As to the first analysis, that of the statute or law known as the Anti-Injunction Act, Congress generally signals how they want a particular part of the legislation they pass treated. They do so by referring to the part in question as something other than a tax if they do not wish for the Anti-Injunction Act to apply. A penalty, if you will, is a signal by Congress to the Courts that they do not wish for the penalty to be treated like a tax. People can sue to challenge it before it is enforced because the Anti-Injunction Act does not apply. In our system of laws, Congress has the ability to determine whether or not they want a statute like the AIA to apply to a later piece of legislation by the way in which they reference a means of generating money: penalty or tax.
By classifying the shared responsibility payment as a penalty rather than a tax, Congress was quite clear in stating that they did not wish for the payment or penalty to be treated as a tax under the AIA by the courts.
Now we move to the second analysis, the constitutional analysis. The language is equally important at this stage, because a penalty is not justified under the Tax Power. The Court's holding today reflected this when it referenced the Drexel Furniture case. A penalty under Drexel was held to be a requirement that imposed three things: a heavy burden (in Drexel, the government imposed a fine of 10% of the company's net income), on those who knowingly employed children (this knowledge is scienter, or willful violation of a legal requirement or prohibition), and enforcement by an agency other than the IRS (in Drexel, the fines were levied by the Department of Labor as part of its enforcement of a labor law). As such, the fines were a penalty rather than a tax.
Contrast that with the shared responsibility payment, which clearly isn't a penalty by these standards: in most cases it will be less than the price of purchasing insurance, and the individual mandate does not condition the payment on willful violation or scienter, and it is collected by the IRS through the normal means of taxation with the exception that the IRS cannot use criminal prosecution. Since the tax in Drexel was held to be a penalty under this logic, the Court found that the shared responsibility payment, though it was called a penalty in the ACA's language, is actually a tax because it does not rise to meet the standard of a penalty inDrexel.
And that is how a tax can be a penalty where the AIA statutory analysis is concerned, only to transform from a penalty into a tax again when you use a constitutional analysis. Yes, lawyers are slick bastards who finesse meanings to get the results they want even if it looks bad.
As to why Chief Justice John Roberts fashioned this analysis to uphold the mandate, various theories are floating around. For starters, Roberts likely realized that this Court is dangerously close to being viewed as Republican or Democrat. For some time now, the Supreme Court has been as partisan as it could be to those people who don't realize what it really is: incredibly and dangerously deferential to Congress and the Presidency. The Supreme Court has no business considering the political implications or its own legitimacy thereof.
That's the plain truth. The Court's only concern is with what the statute before it for review says and whether or not the statute can be reconciled to the Constitution. That is it. You get an idea of how bad the deference has become when you read the last part of the syllabus:
"When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546U. S. 320, 328–330."
This is plainly silly. An unconstitutional statute should be destroyed, because not destroying it would undermine the Constitution. It would destroy our system of federalism and the limited government thereof, and enable legislative bodies and executive branches to erode individual liberties in the name of deference from one branch (the judicial) to the other two branches.
This sort of deference, with its concern for surviving the assault of Presidents gone awry and Congresses stampeding over the fences that limit their reach, has its modern genesis in the Franklin Delano Roosevelt Administration, when President Roosevelt proposed a stacking scheme to add justices to the Supreme Court when it refused to buy into his Commerce Clause rationale for his New Deal legislation. After Roosevelt's proposal died, the threat remained: he was an overwhelmingly popular president, with great political sway, and the Supreme Court worried about surviving his invective rather than defending the Constitution from his assault. They acquiesced then, and for eighty years since the Court has been acquiescing and even overreaching itself with its jurisprudence.
It is no accident that the Obama Administration intimated a loss of legitimacy for the Supreme Court if it overturned the mandate or the ACA in its entirety. The proposal may not have been concrete, but the threat remained: a potential second term president assailing the legimitacy and impartiality of the judiciary with the people, possibly for the purposes of reducing that judiciary's independence and autonomy in previously unimaginable ways. It was despicable, and beneath a former constitutional law lecturer at the University of Chicago's School of Law. It was as bad as anything Newt Gingrich said in regards to abolishing an entire federal circuit because it did not comport to his notion of appropriate jurisprudence.
There will always be men like Barack Obama and Newt Gingrich who do not respect the checks and balances of power between the branches, who view the judiciary as a prize to be captured or extorted into concessions with the threat of political outrage rather than the independent and objective branch it is supposed to be. There is a reason the Framers constructed the Supreme Court and its power such a manner. The power to interpret the Constitution, to measure the laws of the land against the Constitution and find them lacking or sufficient, is an awesome power indeed. Today, the Supreme Court sullied itself by acquiescing to yet another ordinary tyrant in the Executive Branch and his rabble in the Congress. For those of you who object to the fact that the ordinary tyrant in the Executive Branch is Obama, I can point to a litany of decisions in which the Court acquiesced to the ordinary tyrant before him by the last name of Bush.
God save this Honorable Court, from us and the men we elect who do not respect the Constitution it is entrusted with upholding or the independence that rest on its reputation, a reputation that should be shown deference by Congress and the President as opposed to the other way around. I do think that this decision is among the worst and most convoluted I've ever read, but after a day of reading and re-reading it, I raise a glass in sadness to John Roberts, who did not possess the fortitude or the courage to rebuke those who assailed his Court with their insinuations. He's just a man, and aren't we all?
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