ROBERTS RULES: OBAMACARE IS AND IS NOT A TAX

By Attorney Jonathan Emord

Author of "The Rise of Tyranny" and

"Global Censorship of Health Information" and

"Restore The Republic"

July 2, 2012

NewsWithViews.com

In a turn that bodes Ill for a return to limited government, Chief Justice John Roberts sided with Justices Ginsburg, Breyer, Kagan, and Sotomayor in upholding the Patient Protection and Affordable Care Act under the tax clause of the Constitution. The rationale for Roberts' switch to uphold Obamacare is drawing significant legal criticism (with good reason).

In assessing whether the "shared responsibility payment" is a tax or a penalty for purposes of the Anti-Injunction Act, Justice Roberts, writing for the Court, ruled it a penalty. Indeed, the Patient Protection Act expressly refers to that requirement as a penalty, not a tax. the Anti-Injunction Act would bar suit were the shared responsibility payment a tax.

In assessing whether the "shared responsibility payment" is a tax or a penalty for purposes of the Constitution's tax clause, Justice Roberts, writing for the Court, ruled it a tax. That volte face cannot be logically reconciled with the Court's initial finding that the payment was a penalty.

The reasoning supplied by the Court for this contradiction fails to persuade. It is the province of Congress to determine whether it wishes to raise revenue to finance government operations (tax) or punish non-compliance (a penalty). Without question, the "shared responsibility payment" is a fee, not designed to raise revenue to finance government operations, but to penalize those who refuse to comply with the legal requirement that health insurance be purchased (a penalty).

Through linguistic legerdemain, aimed at achieving the result of upholding Obamacare, a majority of the Court had its cake and ate it too--at once the "shared responsibility payment" was a penalty and a tax. For purposes of the Anti-Injunction Act, it was convenient for the Court to describe the payment consistent with the plain language of Congress, as a penalty, not a tax. That leads to a decision on the merits. For purposes of the tax clause, however, it was convenient for the Court to describe the payment inconsistent with the plain language of Congress, as a tax, not a penalty.

This is how Justice Roberts endeavored to reason away the contradiction:

"It is of course true that the Act describes the payment as a 'penalty,' not a tax. But while that label is fatal to the application of the Anti-Injunction Act, . . . It does not determine whether the payment may be viewed as an exercise of Congress's taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress's choice of label on that question. That choice does not, however, control whether an exactions is within Congress's constitutional power to tax."

When the Court embraces a sleight of hand of this kind it diminishes the integrity of the rule of law and causes the public to view it with cynicism. The Court is supposed to be a bastion in defense of the Constitution. In ruling the individual mandate not constitutional under the commerce clause and the necessary and proper clause, the Court performed that function, but in holding the Patient Protection Act's shared responsibility payment a tax, the Court stretched the tax clause beyond the breaking point, eliminating meaningful constitutional distinctions between raising revenue and penalizing non-compliance.

As Justices Scalia, Kennedy, Thomas, and Alito wrote in dissent:

"We have never held that any exactions imposed for violation of the law is an exercise of Congress' taxing power--even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. . . . We have never--never--treated as a tax an exactions which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exception a 'penalty.'. Eighteen times in Section 5000A itself and elsewhere throughout the Act, Congress called the exactions in Section 5000A(b) a 'penalty.' To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it."

The cynical holding in National Federation of Independent Business v. Sebelius now invites comparable legerdemain in Congress. The movement by Congress to mask true taxing measures now has a new ally--call it a penalty. And, if members wish to circumvent the commerce clause to justify imposition of any requirement on the use of Americans' after tax dollars, they may do so, simply by referring to the requirement as subject to a penalty (which the Court will construe to be a permissible exercise of the taxing power). That creates a perverse incentive for such penalties.

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The age of Orwellian Big Brother has been given its complement of steroids.

Contrary to popular belief, the Supreme Court's decision in National Federation of Independent Business v. Sebelius is not the final legal challenge to Obamacare; U.S. Citizens Association v. Sebelius is. That latter case is pending in the Sixth Circuit and involves rights based legal challenges to Obamacare (on freedom of association, liberty, and privacy grounds), not addressed in National Federation. The Sixth Circuit case isbthe last best hope for defeating Obamacare before the January 1, 2014 individual mandate implementation date.

If the courts fail to defend the Constitution, the only other means will be to elect a President committed to repealing Obamacare. In that regard, the Supreme Court has given Mitt Romney a boost. So long as he remains true to his promise of repeal, he will offer Americans the only political antidote to a gross deprivation of liberty and property.