Permalink to Repealing Obamacare: The Roberts Irony

Repealing Obamacare: The Roberts Irony

 

Obamacare opponents dismayed about John Roberts’s opinion in the Supreme Court case that upheld Obamacare’s individual mandate — and therefore Obamacare itself — may have occasion to do a rethink. The ruling, it turns out, may not be the saving grace that Obamacare supporters thought it was. Indeed, the very opinion that Obamacare supporters praise may, ironically, be the opinion that kills Obamacare for good.

Recall that the Supremes did, in fact, rule the individual mandate unconstitutional as a penalty. Recall, also, their concomitant ruling that the Constitution’s Commerce Clause did not empower the federal government to force every American to purchase a product in the private market by virtue simply of being alive.

Nevertheless, according to the Roberts opinion, the individual mandate survived its constitutional challenge as a tax. More important, according to Roberts, it survived only as a tax.

It also, ironically, precisely because it is a tax that the individual mandate is unconstitutional, as the Cato Institute’s Michael F. Cannon notes in his article in today’s Los Angeles Times (emphasis mine):

The Pacific Legal Foundation is challenging the individual mandate, which originated in the Senate, even though the Constitution requires that tax measures originate in the House.

Note also the language of the 16th Amendment (emphasis mine):

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

In other words, the 16th Amendment carves out a special exemption from the Constitution’s requirement that taxes “shall be apportioned among the several States.” For any tax that is not an income tax, the Constitution’s original language applies and thus, per Cannon:

The mandate is also vulnerable because it is not uniform across all states.

One hopes that some of the anti-Obamacare states will take up the Pacific Legal Foundation’s argument and file their own challenges, or at least file amicus curiae briefs in the Foundation’s case.

Like this post? Want to comment? Join Ricochet’s growing community of conservatives and be part of the conversation. Get your first month free.

Members have made 35 comments.

  1. 1
  2. 2
  1. Profile photo of Sumomitch Inactive

    I wouldn’t hold out much hope of them prevailing on either claim. The federal courts have generally been unwilling to enforce the procedural requirements of the Article I provisions, under the “political question/standing” doctrines. For other reasons, I was interested in the fate of a similar challenge to the 1982 TEFRA: the courts recognized that in the ordinary course of negotiating and reconciling laws, the House and Senate play many games, particularly with tax/revenue generating parts of the law, and basically took the position that federal courts are not an appropriate referee of such games.

    As to the requirement that direct tax be apportioned on a per capita (by the last census), as you note the Sixteenth Amendment makes an exception to that requirement for income taxes. Wouldn’t the Justice Dept. argue that since the requirement is enforced under the income tax code, by the IRS, as part of the determination of your income tax payments, if it is a “tax,” it perforce must be an income tax. (And wasn’t this argument made in the dissent in the SCOTUS Obamacare case, to no apparent effect on Robert’s ruling upholding the law?)

    • #1
    • December 1, 2012 at 1:08 am
  2. Profile photo of Mike H Member

    Someone must explain this to me. If this was true, and it is kind of obvious, why wouldn’t the SCOTUS conclude it the last time around? Must it really be presented to them directly? They seem to make some pretty tangential rulings in other cases. What makes you think they wouldn’t have thought through this already?

    Why didn’t our lawyer make this argument? “If you decide it’s a tax, then you MUST find it unconstitutional.”

    • #2
    • December 1, 2012 at 1:08 am
  3. Profile photo of Mendel Member

    So, John Roberts declared the individual mandate a tax, but also said the law was constitutional under those circumstances, without mentioning the House of Representatives requirement. Does his blanket declaration of “constitutional” mean that this new argument is moot?

    Or, if Roberts were to strike Obamacare down based on this new complaint, would he essentially have to admit that his own judgment from one year ago was incomplete and/or erroneous? How likely is it that the Chief Justice will strike down his own decision?

    • #3
    • December 1, 2012 at 1:11 am
  4. Profile photo of Edmund Alexander Inactive

    I’m glad to see they’re finally pursuing this line. The idea that you can take a bill from the House, change 100% of its content, and declare it originated in the House is such a flagrant violation of the rule of law I’m surprised it’s lasted this long.

    • #4
    • December 1, 2012 at 1:33 am
  5. Profile photo of Commodore BTC Member

    interesting, would like to hear Epstein/Yoo’s take on this challenge

    • #5
    • December 1, 2012 at 1:43 am
  6. Profile photo of jmelvin Member

    I think I posited this exact line of thinking (that the tax didn’t originate in the House and thus would fall at later challenge) when the decision came down this past summer. I’ll be quite interested to see what becomes of this.

    • #6
    • December 1, 2012 at 1:47 am
  7. Profile photo of KC Mulville Member

    Live by technicality, die by technicality.

    • #7
    • December 1, 2012 at 1:48 am
  8. Profile photo of Paul L. Inactive

    Makes perfect sense, but I’m not hopeful about it.

    The NYT will run a bunch of op-eds saying the reputation of the Supreme Court will be damaged if Obamacare is thrown out because of such a “technicality.” Roberts will then concoct some justification for not striking it down.

    • #8
    • December 1, 2012 at 2:00 am
  9. Profile photo of Egg_Shen Inactive

    There’s no way this flies, regardless of its obvious correctness.

    The Right is a party of means as well as ends. We believe (most of us) that rules are meant to be followed even if they are horrible rules.

    The Left is a party of ends. For the most part, they don’t care about what means are used to achieve those ends. There is no such thing as a technicality when it comes to left wing policy as long as the goal is met.

    • #9
    • December 1, 2012 at 2:17 am
  10. Profile photo of SunnyOptimism Inactive

    If I remember correctly, the Senate’s version of the ACA bill was actually inserted into a farm bill that was gutted by the Rules Committee of the House and passed out of the House to the Senate. Then the “ping-pong” procedure occurred in order to pass it out of the Senate (by simple majority) and back to the House. Because the “shell” bill originated in the House, then the ACA “originated” there as well.

    As we all know (or maybe we don’t), the SCOTUS has been loathe to ever get involved in judging the Constitutionality of internal House or Senate rules and procedures. Article 1 Section 5 Clause 2 reads –

    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.

    Coupled with the concept of Separation of Powers, I don’t ever see the SCOTUS wanting to get into this dog-fight as the President could make the claim that the Supreme Court’s verdict is nullified by Article 1 Sec 5 Clause 2 thus leading us to a Constitutional crisis between the Executive and Judicial branches.

    • #10
    • December 1, 2012 at 2:19 am
  11. Profile photo of Misthiocracy Member

    This isn’t a new idea. These arguments were made all across the Internet minutes after the Supreme Court made its ruling. I myself started a couple of pretty lengthy threads on Ricochet about this argument.

    So how come nobody’s acted upon them yet?

    How come only now is a semi-mainstream organization like Cato popularizing the argument?

    • #11
    • December 1, 2012 at 2:57 am
  12. Profile photo of Skyler Member

    But the problem is not just the individual mandate. The problem is the rest of the 2000 pages of really bad laws that will have untold effects on our freedoms and the economy.

    Roberts doesn’t get off the hook for having abandoned his responsibility to protect the Constitution and to balance the two other branches of government from over reaching power. He agreed to their over reach.

    I find his decision more repugnant than if he had been like Ginsburg and had simply agreed with the law rather than disagreeing and then refusing to stand by his countrymen’s defense by finding it unconstitutional and then striking the entire law down.

    • #12
    • December 1, 2012 at 2:59 am
  13. Profile photo of ConservativeWanderer Inactive
    Michael Hinton: Someone must explain this to me. If this was true, and it is kind of obvious, why wouldn’t the SCOTUS conclude it the last time around? Must it really be presented to them directly? They seem to make some pretty tangential rulings in other cases. What makes you think they wouldn’t have thought through this already? · 1 hour ago

    Edited 1 hour ago

    Exactly.

    If Roberts was going to rule it unconstitutional on those grounds, he would have already.

    Bottom line: John Roberts thinks it’s constitutional, and will therefore not vote to strike it down. We’re stuck with this monstrosity.

    Welcome to Obamamerica, thanks to supposedly conservative Chief Justice John Roberts.

    • #13
    • December 1, 2012 at 3:02 am
  14. Profile photo of Gene Schwimmer, Guest Contributor Contributor
    Jeff: The ACA fails presentement, fails common sense.

    And Roberts is really, really bad man. · 3 hours ago

    Have to disagree about Roberts. I read the opinion and, however reluctantly, agreed with his reasoning. I would have to reread the oral arguments to be sure, but I believe that the government claimed that the mandate was a tax. If it did, then it’s unfortunate that the states’ lawyer (nor any of the countless amicas briefs?) did not argue that if the mandate is a tax, then it’s unconstitutional because it originated in the Senate, not the House.

    What happens next, I can’t predict, but given the split in the original ACA decision, I would guess that the four conservative justices who wanted to strike down the law would supply the four votes needed to hear the Pacific Legal Foundation case – with, perhaps, Roberts supplying a fifth – perhaps after kicking himself for not checking the ACA’s legislative history in the first place. And the logic, at least to this non-lawyer, is so airtight – either the mandate originated in the House or it didn’t – that the Foundations odds of prevailing, to me, look pretty good.

    • #14
    • December 1, 2012 at 5:04 am
  15. Profile photo of Gene Schwimmer, Guest Contributor Contributor
    Sumomitch: I wouldn’t hold out much hope of them prevailing on either claim. The federal courts have generally been unwilling to enforce the procedural requirements of the Article I provisions, under the “political question/standing” doctrines. [F]ederal courts are not an appropriate referee of such games.

    Wouldn’t the Justice Dept. argue that since the requirement is enforced under the income tax code, by the IRS. · 3 hours ago

    The federal courts are not the Supreme Court. The Supremes decide constitutionality and this is a clear case, with no gray areas for the Court to interpret. If the plaintiff argues that a tax is unconstitutional because it did not originate in the House, as the Constitution unambiguously requires, then the only question is whether it originated in the House or not.

    The government should not put much hope in claiming that the “tax” is an income tax. That the IRS collects the money, as it collects the voluntary contribution for funding presidential campaigns does not make it an income tax. Were the Court to accept that argument, then Congress could transform any tax into an income tax simply by tasking the IRS with collecting the money.

    • #15
    • December 1, 2012 at 5:18 am
  16. Profile photo of Gene Schwimmer, Guest Contributor Contributor
    Michael Hinton: Someone must explain this to me. If this was true, and it is kind of obvious, why wouldn’t the SCOTUS conclude it the last time around? Must it really be presented to them directly? They seem to make some pretty tangential rulings in other cases. What makes you think they wouldn’t have thought through this already?

    Why didn’t our lawyer make this argument? “If you decide it’s a tax, then you MUST find it unconstitutional.” · 4 hours ago

    Edited 4 hours ago

    Given how much he must have been paid, that’s a very good question. But I think that, like most of us, he was surprised by the Roberts opinion and never even imagined, let alone anticipated, it.

    And indeed, the jurisprudence underlying the Roberts opinion is unique – enough so that I’m thinking of writing a separate post on it.

    • #16
    • December 1, 2012 at 5:21 am
  17. Profile photo of Gene Schwimmer, Guest Contributor Contributor
    Mendel: So, John Roberts declared the individual mandate a tax, but also said the law was constitutional under those circumstances, without mentioning the House of Representatives requirement. Does his blanket declaration of “constitutional” mean that this new argument is moot?

    Or, if Roberts were to strike Obamacare down based on this new complaint, would he essentially have to admit that his own judgment from one year ago was incomplete and/or erroneous? How likely is it that the Chief Justice will strike down his own decision? · 4 hours ago

    I think some of us are being too hard on Roberts. He’s a judge. He probably read the mandate and ruled on the text, without looking at which House enacted it first.

    As for being “incomplete and/or erroneous,” one of the more dismaying parts of the oral arguments, to me, was some of the liberal justices’ attempts to rescue the government’s lawyer by suggesting alternative arguments whenever his own argument was weak. Should Roberts have done the same for plaintiffs’ lawyer?

    Anyone wanting the Supremes to reverse Roe v. Wade had better hope that the Supremes can and will rehear a case if someone raises a new argument.

    • #17
    • December 1, 2012 at 5:40 am
  18. Profile photo of Gene Schwimmer, Guest Contributor Contributor
    Ningrim: interesting, would like to hear Epstein/Yoo’s take on this challenge · 3 hours ago

    Me, too! Are you reading this, Mr. Epstein? Mr. Yoo? Could one or both of you weigh in with your own posts? Could someone reading this contact them? Troy?

    • #18
    • December 1, 2012 at 5:42 am
  19. Profile photo of Gene Schwimmer, Guest Contributor Contributor
    SunnyOptimism: If I remember correctly, the Senate’s version of the ACA bill was actually inserted into a farm bill that was gutted by the Rules Committee of the House and passed out of the House to the Senate. Then the “ping-pong” procedure occurred in order to pass it out of the Senate (by simple majority) and back to the House. Because the “shell” bill originated in the House, then the ACA “originated” there as well.

    Interesting argument, but a farm bill is not a tax bill. And if the House “gutted” that bill and sent an empty shell, then the individual mandate/tax was not in it.

    The problem with this argument – and why (though, of course, I could be wrong) I doubt the Supreme Court, or at least the conservative justices, would reject it is because accepting that ruling would not be a “one-off” applied only to Obamacare. Once that door is open, the Senate could use the same maneuver on any tax bill and essentially “gut” the constitutional requirement that tax bills originate in the House. Indeed, that was the logic by which the Court rejected the government’s Commerce Clause argument.

    • #19
    • December 1, 2012 at 5:51 am
  20. Profile photo of Gene Schwimmer, Guest Contributor Contributor
    Misthiocracy: This isn’t a new idea. These arguments were made all across the Internet minutes after the Supreme Court made its ruling. I myself started a couple of pretty lengthy threads on Ricochet about this argument.

    So how come nobody’s acted upon them yet?

    How come only now is a semi-mainstream organization like Cato popularizing the argument? · 2 hours ago

    Arguments are irrelevant; someone needs to bring a case. The Pacific Legal Foundation has. But remember how long it took the states’ ACA case to reach the Supreme Court and then we had to wait months for a decision. The case will get there, eventually, probably have to be heard in a lower court, first.

    The more important question is whether the Supremes grant certiorari. If they do and reject the Foundation’s argument, I will look forward to reading their reasoning.

    But again, I’m not a lawyer. I really, really would like Epstein/Yoo to weigh in on this.

    • #20
    • December 1, 2012 at 5:57 am
  21. Profile photo of Black Prince Member

    To paraphrase another Ricochet member (whose name escapes me at the moment), “Call me when something actually happens.” I hate to rain on the parade, but Obamacare is here to stay…you can take that to the bank.

    • #21
    • December 1, 2012 at 6:07 am
  22. Profile photo of Sabrdance Member

    Should matter.

    If it does, though, I’ll barbeque one of my hats.

    • #22
    • December 1, 2012 at 7:02 am
  23. Profile photo of ConservativeWanderer Inactive
    Sabrdance: Should matter.

    If it does, though, I’ll barbeque one of my hats. · 6 minutes ago

    I’ll join you. And I’ll bring a plate of crow for myself. Can I use your barbeque to cook it?

    • #23
    • December 1, 2012 at 7:09 am
  24. Profile photo of Dave Carter Contributor

    My hunch, and fear for that matter, is that the mental gymnastics that Roberts performed in finding the law constitutional were the result of his reluctance to strike down the work of the legislative and executive branches. “It is not our job to protect the people from the consequences of their political choices,” he wrote at the time. I later read that he fashioned himself as preserving the integrity of the court. Remember, this was mere days after the decision emasculating the sovereignty of the state of Arizona with regard to the defense of its own borders. I suspect Chief Justice Roberts’ mind has somersaults, leaps, and triple backflips yet to be performed.

    • #24
    • December 1, 2012 at 8:14 am
  25. Profile photo of dittoheadadt Member
    SunnyOptimism: If I remember correctly, the Senate’s version of the ACA bill was actually inserted into a farm bill that was gutted by the Rules Committee of the House and passed out of the House to the Senate. Then the “pingpong” procedure occurred in order to pass it out of the Senate (by simple majority) and back to the House. Because the “shell” bill originated in the House, then the ACA “originated” there as well.

    As we all know (or maybe we don’t), the SCOTUS has been loathe to ever get involved in judging the Constitutionality of internal House or Senate rules and procedures. Article 1 Section 5 Clause 2 reads –

    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.

    Coupled with the concept of Separation of Powers, I don’t ever see the SCOTUS wanting to get into this dog-fight as the President could make the claim that the Supreme Court’s verdict is nullified by Article 1 Sec 5 Clause 2 thus leading us to a Constitutional crisis between the Executive and Judicial branches.

    From “Sunny Optimism,” no less!

    • #25
    • December 1, 2012 at 8:49 am
  26. Profile photo of ConservativeWanderer Inactive
    Dave Carter: My hunch, and fear for that matter, is that the mental gymnastics that Roberts performed in finding the law constitutional were the result of his reluctance to strike down the work of the legislative and executive branches. “It is not our job to protect the people from the consequences of their political choices,” he wrote at the time. I later read that he fashioned himself as preserving the integrity of the court. Remember, this was mere days after the decision emasculating the sovereignty of the state of Arizona with regard to the defense of its own borders. I suspect Chief Justice Roberts’ mind has somersaults, leaps, and triple backflips yet to be performed. · 49 minutes ago

    I concur.

    Not to mention that to strike it down now would be to admit that he was wrong the first time, and that is difficult for even the best person to do, much less a sinner like me. Combined with what Mr. Carter mentions, I’d lay good money that he won’t reverse himself.

    The comparison to Roe isn’t quite accurate, because if the Roberts court struck it down, they’d be saying someone else was wrong, not themselves.

    • #26
    • December 1, 2012 at 9:08 am
  27. Profile photo of John Fitzgerald Member

    I think the ACA is more about federal government control, and a lot less about quality affordable health care, but we need to win the argument with the electorate, and offer an alternative replacement plan. I think the American people reasonably wanted a requirement for catastrophic care as well as for pre-existing conditions.

    Professor Randy Barnett as well as other libertarian-conservative legal scholars have some interesting debates over what jurisprudence judges should use to ‘save’ legislation versus when to strike it down.

    • #27
    • December 1, 2012 at 9:28 am
  28. Profile photo of Frederick Key Inactive

    God bless you, Gene, and the PLF. This is the first ray of sunshine I’ve had in weeks.

    • #28
    • December 1, 2012 at 10:15 am
  29. Profile photo of Sumomitch Inactive
    Gene Schwimmer, Guest Contributor
    Sumomitch: I wouldn’t hold out much hope of them prevailing on either claim. The federal courts have generally been unwilling to enforce the procedural requirements of the Article I provisions, under the “political question/standing” doctrines.

    The federal courts are not the Supreme Court. The Supremes decide constitutionality and this is a clear case, with no gray areas for the Court to interpret. 

    Sorry, Gene, but as Sunny Optimism pointed out, it’s not a clear case: ACA was inserted as an amendment into a bill that did originate in the House. The “political question” doctrine originated with the SCOTUS, and cert. was denied in the TEFRA cases. I would be amazed if the SCOTUS (and Roberts in particular) chose to overturn ACA on such a technicality, when he strove so mightily not to do so in 2012. “To swallow a camel, and strain on a gnat.” And I do recall the state apportionment issue was raised in the dissenting opinions: why would Roberts now grab on to that? Obama’s reelection would make him even more concerned about having the SCOTUS perceived as an anti-democratic institution.

    • #29
    • December 1, 2012 at 11:28 am
  30. Profile photo of TeamAmerica Member

    If it is to be repealed, either via judicial decision or by the Congress, it’d have to happen soon, IMO. Caroline Glick, writing in the Jerusalem Post, predicted that when people start dying in 2014 due to postponed care thanks to Obamacare, the backlash would cause its repeal. My own guess is that the US would mimic Europe, with people addicted to guaranteed care demanding defense cuts and higher taxes to improve the accessibility of health care., weakening our defense and increasing economic stagnation.

    • #30
    • December 1, 2012 at 12:37 pm
  1. 1
  2. 2