At The Heart of Roberts' ObamaTax Sophistry Is The Remarkable Claim That The Law Is A Tax When He Needs It To Be But Not A Tax When He Needs It Not To Be

York says this drove the conservatives on the Court "nuts."

I know it drove me nuts.

I'm going to boldface a single word in this excerpt.

Before getting to the heart of the case, the justices first wanted to deal with what seemed to be a side issue: Was the penalty imposed by the individual mandate in Obamacare a tax? If it was, the case would run afoul of a 19th century-law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it. Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then.

No one had challenged Obamacare on that basis; the challengers wanted the case to go forward now. The White House, having argued strenuously during the Obamacare debate that the penalty wasn't a tax, wanted to go ahead as well. So the court, on its own, tapped a Washington attorney to make the argument that the penalty was a tax and therefore the case should not go ahead.

...

After Long made his case, it fell to the administration's lawyer, Solicitor General Donald Verrilli, to argue that no, the mandate was not a tax, and therefore the case was not subject to the Anti-Injunction Act.

At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution's Commerce Clause, he had as a backup the argument that it was also justified by Congress' power to levy taxes -- in other words, that it was a tax.

Justice Samuel Alito saw the conflict right away.

"General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"

"No," answered Verrilli.

Unprecedented.

It wasn't a tax for purposes of getting it passed politically, also wasn't a tax for purposes of delaying judgment based on the Anti-Injunction Act, but then magically became a tax in order to be upheld.

If the government now has the power under the taxing power to enforce its preferences regarding how citizens live their lives, Ed Morrissey proposes, modestly, a new tax on those who refuse to buy guns.

Allah considered a similar question yesterday: Whether the government could put a punitive tax on you for owning a gun. Gun ownership is a right, he thought, so the ObamaTax logic wouldn't fully apply. You can't burden a right.

Well, owning a gun is a right, but not owning a gun is not a right. Or at least it's no more of a right than not owning insurance.

We can pass a great many laws like this, enforcing our preferences in any area that isn't an explicit (or penumbra-ish) right under the Constitution.

Don't go to Church regularly? Why, we can tax that. And before you say it's your right not to go to church -- of course it is, but we can compel all Americans to spend at least two hours each week on philosophical contemplation, whether it be at church or in Quiet Home Study of non-religious philosophical texts.

If a temporary majority in Congress thinks it's a good idea -- tax away!

The Constitution apparently gives the government the right to dictate almost all of our personal choices, so long as it enforces these preferences via punitive taxes. So let's get started.

posted by Ace at 08:58 AM

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