Scholar Lawrence Tribe attempted to explain Justice Roberts' crossover on the mandate.

[No Elephants]

On TV last night, Constitutional scholar Lawrence Tribe discussed Roberts's surprising vote on the Affordable Care Act's mandate. I did not catch him from the beginning. This OP is about what i heard of Tribe's analysis and my take. (BTW, Tribe taught Constitutional Law to both one Barack Hussein Obama and one John Glover Roberts, Jr.)

Caveat: I have not yet read any of the opinions, not the majority, or any concurring or dissenting opinion. With that, here goes.

Tribe believes that the loss of prestige of the SCOTUS weighs on Roberts (who is, after all, the Chief of "the Roberts' Court"). Therefore, according to Tribe, Roberts wants to cut back against that perception.

As we all know, polls suggest that respect for the SCOTUS is lessening because of a growing perception that the SCOTUS is politically partisan, rather than impartial, as all courts should be. IMO, deciding cases to improve poll results about the court that bears your own name and imprimatur is not how any judge should behave either. However, bear in mind that Tribe has no ability to read Roberts's mind and discern Roberts's inner motivations. So, imputing anything to Roberts because Tribe said it would be baseless.

This is a landmark decision about landmark legislation and a highly visible case. So, if Tribe is correct about Roberts, upholding the ACA may have been very important to Roberts. And so, according to Tribe, Roberts "found a way" he (Roberts) could uphold the Constitutionality of something as unprecedented as the individual mandate.

According to Tribe, the way that Roberts "found" to declare the mandate Constitutional was to decide it was a tax, not a penalty.


As we all recall, during the run up to passage of the Affordable Care Act, the Obama administration and other proponents of the individual mandate insisted that people would have to pay "a penalty" for not buying health insurance. They repeatedly insisted that it was not "a tax." Obsessing over terms was probably due to the reputation of "the Party of tax and spend" and Obama's repeated promises that taxes on people making under $250,000 a year would not increase. (You can look at both the mandated insurance premium and the "penalty" as new taxes.)

Tribe also mentioned that he (Tribe) had written an article about the mandate some time ago, asserting that mandate is a tax, as the Heritage Foundation had declared, not a penalty/ (As if the term someone nameless, faceless person in the Heritage Foundation chose has some special Constitutional significance that trumps the term that the duly elected President of the U.S. chose?)

For background:

"Teddybearcare." Theodore Roosevelt was the first Presidential candidate to speak of a need to provide for universal health care. However, I was unable to find specifics, if any, that TR may have had in mind.

"Nixoncare" mandated that certain employers buy health insurance for their employees. An mandate for big employers would likely horrify today's plutonomy. In any event....

"HeritageFoundationcare" dropped the "job creator" mandate and substituted an individual mandate.

"HeritageFoundationcare" became the model for "Hillarycare," authored by Bill and Hillary Clinton, both of whom were founding members of the conservative DLC. (As we all recall, consistent with Hillarycare, Hillary campaigned in 2007-08 on the need for an individual mandate, while Obama campaigned against an individual mandate--and Hillary lost to Obama. So much for the ability of Democrats to make informed primary voting decisions on the basis of a very important issue in that primary campaign.)

In turn, "Hillarycare" became the model for "Romneycare." Turned out, the costs of Romneycare had been greatly understated. Moreover, health insurers raised their premiums greatly after Romneycare went into effect. One Captain Louis Renault to express shock, shock, on both counts.

In turn, "Romneycare," according to words from Obama's own mouth, was Obama's original model for ACA. And, as we all know, the health insurers, PHRMA and big health care providers proceeded to make things even better--better for those classes of job creators, that is.

Tribe seemed to be trying to imply that his article was responsible for the position Roberts took. For whatever reason, though, Roberts did decide that the money payment for disobeying the mandate is a tax, not a penalty. And, because it is a tax (and only because it is a tax), the federal government has Constitutional power to impose an individual mandate under the taxing clause of Article 1 of the Constitution of the United States.

IOW, while the federal government has no Constitutional power to "make" individuals buy something from private companies, it does have Constitutional power to tax people for refusing or neglecting to buy that same something from those same private vendors.

Maybe the Obamadmin made a distinction without a real difference when it called a money payment to government a penalty, rather than a tax. However, IMO, Roberts, too, made a distinction without a difference when he called the payment a Constitutional tax, and not an unconstitutional way of making individuals buy something from private vendors.

Until now, we have taxed people only to raise money for the nation as whole because the nation as a whole needed the money for some national purposes. We'e never taxed people because they failed to buy a particular product from a private industry, thereby raising the bottom line of that private industry. So, this is not, IMO, "Ho hum, just another tax issue and therefore obviously Constitutional under the taxing clause. Case closed."


If the law requires you to pay a penalty or a tax and you fail to pay either a tax or a penalty, you can go to jail/prison if you fail or neglect to pay it. And, if you try to escape from jail, you just may get shot to death.

If that is not a way of "making" people do things, we need to re-visit our concept of sending people to jail because they fail to behave as government tells them to behave.

Moreover nothing seems to prevent the government from setting the payment sky high. It could exceed the insurance premium many times over. The generation-skipping tax was a good example of a confiscatory tax/penalty. When enacted, it sure "made" a lot of rich Americans change their wills.

I take a more Shakespearean/Steinian view than either the Obama administration or the Chief Justice. For me, "A rose by any other name..." is still a rose and "A rose is a rose is a rose."

I don't much care if you call it a tax or a penalty or rabbit's foot. If government can charge me whatever tax, fine or penalty it wants unless I buy something and jail me if I don't pay, government IS making me buy something. The rest is word games.

Treating failure to buy a product from a private company the way that we treat crimes is one hell of a dangerous legal precedent; and I shudder to think what might happen with that precedent in the next 50 to 100 years. Sure, the ACA case is about buying health insurance, but SCOTUS precedent is SCOTUS precedent.

Will we get taxed punitively for not buying recycled paper or flag lapel pins or whatever some Republicrat or Demlican thinks we really ought to be buying? Maybe it will be guns, knives or karate lessons, so we can protect ourselves. (I'm guessing the gun lobby is bigger, so let's just short cut it to "guns.")

After all, we unarmed people have a hell of a nerve expecting the cops and the military to provide all our personal security for us at the expense of taxpayers, don't we?

Lots of people pay taxes AND hire their own security guards, or protect themselves, while we loll around refusing to take any personal responsibity whatever for our own protection. Frickin' irresponsible freeloaders, we are, just like people who don't have more than enough money to pay $200,000 hospital bills now and then or something around $20,000 a year, every year, for family health insurance.

http://tpmdc.talkingpointsmemo.com/2011/02/anti-hcr-gun-mandate-stunt-meets-george-washington.php

BTW, the order for able bodied men to buy their own guns and report for militia duty that TPM describes at the above link was a war conscription power, well established in many nations at the time--and we had relatively recently gone through a war in which troops had had to wrap their feet in rags because the Continental Army had no money to buy shoes.

Moreover, the gun purchaser was, and always remained, the owner of the gun. He did not have to turn it into the government or into the hands of any private vendor. Therefore, it was not like the individual health insurance mandate, which effects a transfer of assets from the individual either to an insurance vendor or to the government.

Finally, issuance of an order alone does not mean the order was Constitutional. I do not believe any SCOTUS reviewed it.

So, despite efforts from both the left and the right to claim that the order to buy a gun was direct precedent for the recent SCOTUS decision on the individual mandate, the gun purchasing order was, as they say in court opinions, "distinguishable," or different, in at least three important respects.

Something that is distinguishable in even one important respect is not direct precedent for a SCOTUS decision. In fact, something that was never tested by a court is not legal precedent for the SCOTUS at all, let alone direct legal precedent.

Ergo, upholding the individual mandate is an unprecedented diminution of individual rights, in favor of both private companies and the government--but, ultimately only private companies.

The individual mandate, unlike other provisions of the ACA, benefits ONLY private health insurers and private hospitals. Again, it's billions for Wall Street and taxes (or penalties or jail) for Main Street.

And so ends what I heard Tribe say about Roberts's vote on the individual mandate and my analysis of same.



"Footnote to the so-called precedent of the gun purchasing order: In terms of possible significant distinctions, I don't know if there was any "penalty" or "tax" specified for failing or refusing to buy a gun. If anyone else knows, please post or pm. Thanks.

[No Elephants]

1. Correction to the above. As of now, you cannot be jailed for failure to pay

the tax.

We'll see what happens if failure to pay becomes widespread.

[Leopolds Ghost]

2. Kick and rec. Please read

I agree with everything you said. My own thoughts on the matter are on this DU3 thread:

http://www.democraticunderground.com/1002868469

Every American citizen is now required to help make insurance corporations richer

If anyone cares to discuss it further here, please reply to No Elephants,

because No Elephants makes a lot of important points here.

I know this affects DainBramaged and others on DU :cry:

It's important to note that the pre-existing conditions ban would not have been struck down

if the individual mandate (aka Gingrichcare) had been struck down.

While certain Dems argue it would be un-funded without the mandate, the President and SCOTUS
have already removed funding for Medicare expansion and long-term care insurance from the bill

(and the pre-existing condition my dad had before he died would only have prevented him from getting long-term care insurance if it was available to him. Fortunately he became eligible shortly before he was diagnosed.)

Joshcryer, Scootaloo and others said that they opposed the mandate but wanted the ACA to pass muster because it was the only way forward to attain a public option at a later date. But I see no momentum to impose a public option especially when a limited public option (means-tested, restricted to those who refuse to pay a fine) was vetoed from the bill; and any movement in the direction of single-payer will now have to come from public dissatisfaction with the further deterioration of equity in our health care system under what is now Obama's bill.

I avoid most DU3 threads because they were just cheerleading threads, even going on about Romney

(when HE pioneered this bill and Gingrich endorsed the individual mandate back in the 1990s)

But the thread linked above is by a critic of the bill, so I posted my thoughts there.



But I do not blame anyone with pre-existing conditions for supporting this bill. As mentioned, my dad had a pre-existing condition that nearly cost him long-term care insurance and losing my family's house.

[No Elephants]

3. The mandate has nothing to do with coverage for pre-existing condition or with ANY good thing in the

bill.

It is the brainchild of conservatives, upheld by a conservative Chief Justice.

[No Elephants]

4. The SCOTUS has long said it will not hear a tax case until the tax goes into effect.

The mandate, which Roberts decided was a tax, will not go into effect until 2014. So, if Roberts found it to be a tax, he should have refused to decide further until after the tax went into effect.

Between Roberts deciding this was a tax, then deciding the merits anyway--and crossing to the Democratic side to do so in the bargain--and two Democratic appointees crossing over to hamper expansion of Medicaid, this is a very unusual case. Very.

[Leopolds Ghost]

5. Interesting. I should post this point on DU3, see what the response is

I told people on DU3 to read your OP, Zalatix (who agrees with you) did. I think most folks there aren't aware they can log in and reply here.

[Divine Discontent]

6. thx!

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