Enough with all the nonsense about Chief Justice John Roberts “re-writing” ObamaCare. That accusation is entirely false. Our esteemed Chief Justice is also being called an “activist” because of this erroneous accusation to have rewritten a law. Brilliant conservative judicial restraint is much more accurate here. Anyone who lays claim to slandering our great Chief Justice for his ObamaCare opinion is too wrapped up in partisanship to care to understand the complexities of this ruling. Here’s my hand, let’s take a walk through this.
Roberts argues that a tax is a tax based on its function, not its name. Roberts writes in his opinion, “constitutional question was not controlled by Congress’s choice of label.” If a payment to the government is made through the same channels as taxes are collected then the payment is a tax. But, but, but, that’s not what it’s called and therefore the Chief Justice “re-wrote” the law. Ok, it is not called a tax and the president has gone out of his way to say that it is not a tax, so what is it called? Examining the text and going by what the president and his chief surrogates have said the tax is really just a “shared responsibility payment.” Oh my. A shared responsibility payment, of course.
Let’s take a short break so that I can identify something. The greatest invention man has bestowed to this planet is language. Written, spoken, sung, language is a tool we use every day. Within all the wonders which language can bring us there are also some demons out there disguised as eloquent phrases which lack substance and/or deliberately pervert true meaning. With that being said let’s get back to our topic.
Where were we? Oh yeah, shared responsibility payment. For those of you who are unfamiliar with this term please get out your law school textbooks. Can’t find it? Well believe it or not the Constitution lacks the term and accompanying definition of shared responsibility payment. Legal precedent is, at best, light on the subject. So what is a Chief Justice to do? We must look through the euphemisms and look at the functionality simply because the name is not what defines something, the action of it does. Four characteristics are listed which make this a tax. They are; payment goes to the IRS on your usual, annual filing form; individuals who make less than the minimum amount required to file a tax return, according to the Internal Revenue Code, are specially exempt; amount of tax is determined by income, dependents, joint filing status, typical criteria for other tax calculations and; collection/enforcement is the responsibility of the IRS. Another aspect which must be met is that a tax is supposed to raise revenue for the treasury. The treasury expects to take in around $4 billion a year once this gets going, an amount which certainly satisfies any raising revenue characteristic.
The president and his friends claim that the mandate is not a tax; it is a penalty. But the Chief Justice, in his opinion, disagreed and defined a penalty as “an exaction imposed by statute as punishment for an unlawful act.” Take speeding tickets as a popular example. When the cops pull you over, you cannot tell the officer that you were taking the option not to follow the speed limit and are willing to pay the shared responsibility payment for your choice. Instead, the driver will have to pay a penalty, not a tax, for breaking the law. No one on either side of the aisle has ever contended that choosing not to buy healthcare is unlawful.
Another false claim made by naysayers is that while Roberts’s opinion limits the Commerce Clause, it gives the government the power to do whatever it likes as long as it lists their action as being done under the Taxing Clause. This is so completely wrong. My goodness this is so wrong. Anyone who makes this claim either didn’t read the opinion or chose to ignore the following, “Congress’s ability to use its taxing power to influence conduct is not without limits.” Roberts then lists several precedents to support this (read the opinion for the correct citations). Keep in mind that the opinion already expressly states that Congress’s choice of label is not the determining factor when classifying an action; it’s the action itself, again not the name, which decides what it is. So where is this argument coming from? Fear? Partisanship? Certainly not from Roberts because the opinion says the government cannot do whatever it wants if it cites its taxing power. C’mon people, read the damn opinion for yourself. Here is a link to it.
Our Chief Justice deserves better treatment from conservatives than he is getting right now, especially from the conservatives who supported Roberts’s nomination, cheered his confirmation and championed his previous decisions. He is still the same guy.
This is the second installment in a short series of posts on the ObamaCare decision. Check back for a review of Justice Kennedy’s dissent, the political maneuvers both parties could make, and more on Chief Justice Roberts.