“I really don’t want courts trying to achieve the claims that politicians make when they pass laws.”

But that’s exactly, precisely what Roberts did! The pols in question claimed the statute is Constitutional; Roberts REWROTE IT so that it would be. (I think it’s questionable even so, but that’s a different point from what we’re discussing here.)

“I want courts to confine themselves very narrowly to questions of law,…”

Yes. I can’t see how in RE-WRITING the Act Roberts confined the Court to the question of law. He’s supposed to be ruling on the law the plaintiff addresses, not some version of it that its writers have already disowned loudly.

You want the Court to avoid ruling on the basis of “but he said/but she said”–or so I understand you to mean. However, if Roberts had said, “This thing is a duck, yet it purports to be a poodle. That won’t work. Make up your mind which it is, and then when you’ve fixed it, maybe it will be Constitutional”–if Roberts had said that, he would have avoided any question of “he said/she said.”

At a minimum, statutes must represent themselves honestly.

Statutes don’t represent themselves. Politicians represent them. The problem Julie is (brace yourself) the government lied. I know, I know they are well meaning public servants, but in this case they lied. They told us it isn’t a tax but they whispered to the Court that it really is. I recall even at the time they were ramming it through passage with sharp pointy objects hearing that “it really is a tax” was always their backup plan. ‘Turned out it was.

I’m a little surprised because I’d thought you would agree with me, but I really don’t want courts trying to achieve the claims that politicians make when they pass laws. I want courts to confine themselves very narrowly to questions of law, whether Constitutional or statutory law and give specific provisions an up or down vote based on questions of law, not “but he said/but she said“. The question of whether those provisions must match what the politicians claimed during their perennial campaign speeches is a question not for the courts, but for the ballot box this November.

I’ve been completely unable to find anything in the Constitution that distinguishes between using tax exposure to encourage people to take out mortgages and using tax exposure to encourage people to take out insurance policies. I’ve looked, and I can find nothing in the Constitution to distinguish the two cases. Like or not, the frickin tax is Constitutional unless we want to strike down the mortgage deduction in the same decision. This really is a question for the voters.

Of COURSE I wouldn’t go along with a ban on “flotulators”-really-meaning-guns! That’s my POINT! Roberts should tell the Gov that the law is unConstitutional because the statute is DISHONEST–it substitutes an acceptable restriction (assuming it’s Constitutional to restrict flotulators) for an unacceptable one.

I wrote elsewhere:

“At a minimum, statutes must represent themselves honestly. If we don’t insist on that, we will not and cannot have honest legislatures and honest government. J. Roberts should have said, “You say this thing is a penalty, not a tax. If so, it is unConstitutional. But if it IS a tax, then the statute must so state; if it misrepresents the nature of the payment, then it is unConstitutional in its dishonesty. Either way, the Act is unConstitutional.”

I guess we’re going to have to agree to disagree, Mid. I keep saying the same thing and so do you, and we’re not reaching each other–odd since we’re in AGREEMENT that it (apparently) quacks like a duck and therefore is (presumably) a duck; the disagreement is that I think the Supremes are not empowered to edit the Gov’s mistaken dictum so that it will work. NO–the correct thing is to require the Gov to take down the signing labelling the creature a fluffy poodle (and if they wish to redo their signage of course they’re at liberty to try).

In Court, where it mattered, the government did call it a tax. The Court had to consider it as a tax once that argument was presented. You are equating the lies told to the public with the arguments presented in court. I really really don’t want the courts to interject themselves into political speech and attempt to enforce statues according to the promises made in the sales pitch. I want courts to confine themselves to the questions presented to them.

When I hear all these protestations that the court should do something because “they said it wasn’t a tax” they ring in my ears with the same timbre as “but Momma, he said he loved me.”

There is an election this fall. The Senate is up for grabs. That is the time and place to permanently undo this mess. If we (the small government Tea Party faction) can’t win that election, then nothing in this decision makes any long term difference. If we do win it, then nothing in this decision matters except that it provides very solid groundwork to roll back the Commerce Clause and the Necessary and Proper Clause.

“You insist that this so-called penalty is not a tax. Very well then; if so, it is unConstitutional. It would not be unConstitutional, however, if it were a tax–the definition of which in fact it meets. However, in that case the statute would have to state that it is a tax, rather than a penalty.

“As it is, the statue is unConstitutional whether the payment is a penalty or a tax.”

If the payment is a tax, then the statute must so state.

Oh dear. You are going to trust congresscritters with defining the meaning of the words used in the Constitution? Words don’t change the true nature of the enactments. It is levied on income, it is conditioned on having income, and it is calculated as a percentage of income. By all definitions except Pelosi, et al, it is a tax. Roberts discussed at some length how the legislatures definitions control for legislative acts (like the AIA) and the Constitution’s framers definitions control for purposes of applying the Constitution. Quoting the decision –

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, supra, at 12–13, 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 exaction is within Congress’s constitutional power to tax.

If the Congress decided to ban flotulators and defined them as any projectile-firing hardware but declared vehemently that it wasn’t a gun ban, just a flotulator ban, would you accept their claim that it wasn’t really a gun ban? The Court (thankfully) looked at the actually substance of what they were doing, not the label they pasted on the outside. The lawyer for the gov requested the court look at it as a tax if it flunked the other tests so that is what they had to do.

I’ve long held the opinion that anybody who will lie for me will lie to me, anybody who will steal for me will steal from me, etc. While I really want this terrible law (done in the fine tradition of Social Security, Medicare, etc) to be struck from the books, I am relieved that the Court did not play tricks to take it down.

Roberts nailed the problem that must be solved. “It is not our job to protect the people from the consequences of their political choices.” If SCOTUS doing this properly, instead of resorting court rulings handed out like political spoils, drives people out to vote this fall, the more’s the better!!

You write,

Roberts is declaring that the Constitution cannot be rewritten by changing the meaning of words like “tax”.

To which point the proper response was, “If the payment is a tax, then the statute must so state. If it is not a tax, then it is unConstitutional. Either way, the Act as written is unacceptable under the Constitution.”

(He might have added, “Labels ARE important–very important–because they are the elements reason uses to signify meanings, according to which it establishes its conclusions. That is why we must insist upon using the label which correctly identifies our actual meaning; and that is why calling the thing a ‘penalty,’ instead of the tax that it really is, is not acceptable.”)

As for Wisconsin’s great win, it’s nice to know that once in awhile somebody CAN beat the odds! (It was only possible on account of my couple of donations smuggled out-of-state to the Governor’s campaign, of course. And it was from YOUR posting here that I first found about the “recall election.”) –If it was because of a truly courageous Republican clerk, it goes to show how the actions of a single person can have a huge, even a finally determining, effect on the outcome. Bravo, Clerk–and, On, Wisconsin!

Roberts’ opinion explains a clear and simple dichotomy. For matters that fall within the Legislative purview, the Legislature’s intentions are controlling. Roberts explains that since the Anti-Injunction Act is the creation of the Legislature, the ACA “it’s not a tax” claim controls the application of the AIA. However, when the Constitutionally of an act is what is being determined, the definition of “tax” is controlled by the Constitution, not by the Legislature. And that should be no surprise, it has been commonly accepted since it was railroaded through that this is a tax in all but name. Roberts is declaring that the Constitution cannot be rewritten by changing the meaning of words like “tax”.

He did not rewrite the law. He used the Legislature’s prescribed definition and treatment of “taxes” where their statutes were the applicable law, he used the Constitutions prescribed definition and treatment of taxes where the Constitution is the applicable law.

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.

That is from the syllabus, there is more detail down in the actual opinion. This is appropriate, restrained and correct jurisprudence. Unless/until we repeal the 16th, taxes can be used for almost any darn thing as long as the money comes from incomes and goes to the Treasury.

As to your second point on elections, Wisconsin dealt with that problem in the face of some of the most extreme histrionics, threats and dubious voting practices in certain Democrat precincts imaginable. At this point I believe that the SC of Wisconsin election was saved by a Republican clerk holding back election returns until after the last Democrat district reported. Amazing how the most thoroughly Democrat strongholds always report their counts last and always find just enough votes to squeak out a win. Sometimes even more votes than eligible voters. Hhmmm . . .

I remain unconvinced. The minute J. Roberts said “it’s a tax, not a penalty” he LITERALLY rewrote the law.

But I will see what Profs. Barnett and Epstein have to say–they being the two law profs worth hearing, IMO.

One other thing, more in line with the discussion in the next posting: I’ve come to believe that this theory “if you don’t like the laws that are being made, vote the bustards out” isn’t very comforting in the real world, since (among many other reasons) one of the major parties–not to name names of course–has no problem in rigging and stealing elections; even to the point of trying to block attempts to keep non-citizens from voting.

Thus, Randy Barnett has made the point that nothing but understanding, common sense, and commitment actually prevents the Supreme Court (and the other branches) from doing exactly as they please. (Which is how we reached the point where Federal statutes are PRESUMED LEGITIMATE by SCOTUS–this is the doctrine of the Presumption of Constitutionality–so that the burden of proof is always on the complainant, where Federal law is concerned, and out of which has grown the stupid Rational Basis test; Prof. Barnett traces this trend clear back to 1931)*. He wants to see an Amendment that would make a structural change to government, thereby forcing Constitutional compliance.

For a very good article on this, see his “The Power of Presumptions” at

http://www.randybarnett.com/17harv613.htm

Personally, I don’t see how that’s to be done. The Framers hoped that Separation of Powers and Checks and Balances would do it, but obviously….

Also, what rfichoke said.

Finally, not to change the subject, but I absolutely agree with seo about the look and layout of the site. I know different people are different, but Samizdata is the easiest on my eyes of any website I’ve ever seen. And I love the simplicity of it. (I just wish we could pull up the archives by month.) Great job, Mr. Designer! ))

Errr – if judges ignore the TEXT (as well as the intentions of the writers) then it hardly matters what the the Constitution says.

The “common defence and general welfare” is the PURPOSE of the list of spending powers that follow it.

To pretend that there is a “general welfare spending power” makes a nonsense of the list – and of the Tenth Amendent.

No need to go into Scots (Roman) law method of checking intentions, – although that can be done if people want to (there is a vast amount of published material).

But let us say we IGNORE all the above.

Look at the text of the STATUTE.

Where is the word “tax”?

It is not there.

Indeed all the writers FORMALLY DENIED there was a tax in the STATUTE.

So Chief Justice John Roberts MADE IT UP.

He “interpreted it” into existance.

The non-lawyer word for this is LYING.

He LIED.

Now if you have judges who are prepared to LIE, what does it freaking well matter what you write in a Constitution or in a statute?

“Silver lineing”.

Let me guess…..

That the States will not be forced to expand Medicaid spending?

Quite true – and besides the point.

Obamacare is quite enough to force more and more companies to stop offering health cover, and to price health insurance out of the range of indiviudals (apart from the very rich).

Instead companies will pay a penality (sorry a tax) – and the government (via crony capitalist “private providers” AT FIRST) will take control of health care.

Under Obamacare the end result will be a smaller percentage of people with real private health cover than there are in Britain.

Because private health insurance (real private health insurance) will be made so expenisve that only the very rich will be able to avoid it – and they prefer to pay per-treatment anyway.

The only REAL silver lineing is that whole system (the economic system) is going bankrupt. With or withing Obamacare – Obamacare will just mean it happens more quickly.

We do not really have to worry about the long term.

Because things will fall apart over the next few years.

Starting in 2013.