« =Sandy Adams: "The other side says this is political. This isn't political. To me, this personal. We have a law enforcement officer... who was killed." | Main | Open Thread: Moment of Zen »
June 28, 2012
Roberts: 'Need Not Be Read To Do More than Impose a Tax'
"Read" or, say, "interpreted." While I agree with a practical approach to the law, engaging in interpretation on this scale is unwarranted. I disagree strongly with Chief Justice Roberts use of the word "reasonable" in his conclusion:
The Affordable Care Act is constitutional in part andunconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax . . .
(Emphasis added.) The prudential, reasonable thing to do would have been to strike down the ACA and tell Congress "We don't however rule today on the constitutionality of ACA as a tax," thereby leaving open that issue for Congress to try again if it wanted. What Roberts has done is rewrite the law.
Earlier in his opinion Roberts explained the reasonableness of construing the ACA as imposing a tax:
The joint dissenters argue that we cannot uphold§5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.
[T]he very fact that he sustained the Act as a tax shows that he has a deeply anti-formalist streak. That was apparent during the oral arguments, when he, more than anyone, expressed puzzlement over how one could even say that the law contained a "mandate" when its only enforcement mechanism was tax liability for some and nothing for others. And in the end, it turns out that was enough for him.
I would suggest that one man's pragmatism is another man's activism and that what Roberts has done is not an example of juris prudence. There is nothing wrong with practicality, but Roberts is pretending this switch is no big deal. On something that big, why not make Congress decide it for itself? The sensible, pragmatic thing would have been to remand the case to Congress for further action, so to speak.
In his dissenting opinion, Justice Kennedy says the court cannot rewrite the statute to what it is not and that past cases have established a clear line between a tax and a penalty.
In answering that question we must, if “fairly possible,” . . . construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” . . . In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” . . . to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Pragmatism. More like "magic."
Wikipedia provides a handy definition of legal formalism:
Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which provides:[T]he judicial shall never exercise the legislative and executive powers, or either of them; to the end [that Massachusetts' government] may be a government of laws, and not of men. 
The kind of "pragmatism" or "anti-formalism" like we've seen today is a slippery slope. It takes onus away from Congress to legislate in a clear fashion and opens up the interpretation of statute to too much convenient second-guessing by the court. This is less about the rule of law than it is the rule of men. Because where do you stop? Why not "read" the law utterly subjectively to be whatever you want whenever you want, depending upon utility in the moment?
Jean: "They let women who didn't kill their babies at the ..."
Bigby's Ouija Board: "i read that infantry guy's post a few nights ago. ..."
Bruce: "Morning report now available ..."
Jean: " Out of the blue, she said, 'I don't want to go ov ..."
FenelonSpoke: "Typo-decided to have the baby. ..."
FenelonSpoke: "I think it's a mixture of things. Yes, it's about ..."
Jean: "31 Separate boning missions against isis on Sunday ..."
George Soros: "Who is generous enough to cover the bus charter fo ..."
RickZ: "[I]My BIL said she didn't seem so anti-male when t ..."
FenelonSpoke: "The local town rag says about the march-quoting on ..."
Tim in Illinois Red County Rebel: "Well just "duh" to me. Carl Sandburg Kooledge is i ..."
Village Idiot's Apprentice [/i] [/s] [/b]: ""My BIL said she didn't seem so anti-male when the ..."
The Morning Report 1/23/17
Sunday Overnight Open Thread (1/22/17)
CBD-Less Food Thread
Sunday Morning Book Thread 01-22-2017
Open Thread for Politics
Overnight Open Thread (21 Jan 2017)
Sean Spicer Blasts the Press
Polls! Polls! Polls!
Real Clear Politics
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Primary Document: The Audio
Paul Anka Haiku Contest Announcement
Integrity SAT's: Entrance Exam for Paul Anka's Band
AllahPundit's Paul Anka 45's Collection
AnkaPundit: Paul Anka Takes Over the Site for a Weekend (Continues through to Monday's postings)
George Bush Slices Don Rumsfeld Like an F*ckin' Hammer
Top Top Tens
Democratic Forays into Erotica
New Shows On Gore's DNC/MTV Network
Nicknames for Potatoes, By People Who Really Hate Potatoes
Star Wars Euphemisms for Self-Abuse
Signs You're at an Iraqi "Wedding Party"
Signs Your Clown Has Gone Bad
Signs That You, Geroge Michael, Should Probably Just Give It Up
Signs of Hip-Hop Influence on John Kerry
NYT Headlines Spinning Bush's Jobs Boom
Things People Are More Likely to Say Than "Did You Hear What Al Franken Said Yesterday?"
Signs that Paul Krugman Has Lost His Frickin' Mind
All-Time Best NBA Players, According to Senator Robert Byrd
Other Bad Things About the Jews, According to the Koran
Signs That David Letterman Just Doesn't Care Anymore
Examples of Bob Kerrey's Insufferable Racial Jackassery
Signs Andy Rooney Is Going Senile
Other Judgments Dick Clarke Made About Condi Rice Based on Her Appearance
Collective Names for Groups of People
John Kerry's Other Vietnam Super-Pets
Cool Things About the XM8 Assault Rifle
Media-Approved Facts About the Democrat Spy
Changes to Make Christianity More "Inclusive"
Secret John Kerry Senatorial Accomplishments
John Edwards Campaign Excuses
John Kerry Pick-Up Lines
Changes Liberal Senator George Michell Will Make at Disney
Torments in Dog-Hell
The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Movable Type 2.64