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Old July 8, 2012, 05:36 PM   #1
Al Norris
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The Decision in NFIB v. Sebelius

What This Thread Is Not

This thread is not about President Obama's Health Care Mandates. It is not about Health Care. It is not about Medicaid. It is not about Health Insurance. It is not about the state of health care in the US vs the world.

Those topics are not now and never were valid topics for discussion.


What This Thread Is

This thread is about the decision in NFIB v. Sebelius as it relates to the Enumerated Powers of Congress and how this decision may affect our Civil Rights, going forward.


Should you decide to enter into this discussion, think well and hard before you hit the "Submit Reply" button. Stray from the topic, and your post will be deleted without warning. Depending upon how far off topic your post is, you may very well lose your privileges at TFL.

We have become very lax, of late, in enforcing the rules of discussion in the Law & Civil Rights Forum at TFL. I expect everyone to have read the Read Me First! sticky. Those rules will be enforced.

To begin....




The decision itself is convoluted. The dissenting opinion was written by CJ Roberts. It was to have been the majority opinion. The Concurring opinion was written by Ginsberg and was originally the dissenting opinion.

CJ Roberts, for whatever reasons, wrote a separate opinion, in which he held 4 major rulings on the Act. His opinion is the controlling opinion and is the opinion, rightly or wrongly, that will move forward.

This can be seen in how the decision has been joined by the other Justices of the Court. From the majority opinion:
Quote:
CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which JUSTICE BREYER and JUSTICE KAGAN join, and an opinion with respect to Parts III–A, III–B, and III–D.
From the concurring opinion:
Quote:
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part, and dissenting in part.
From the dissenting opinion:
Quote:
JUSTICE SCALIA, JUSTICE KENNEDY, JUSTICE THOMAS, and JUSTICE ALITO, dissenting.
It is of note, that the dissent was not signed by the minority Justices. That is because apart from a few minor changes, none of them authored the opinion. Chief Justice Roberts wrote this (it is his style of writing, and no authority has said different) as the initial majority opinion, before he changed his mind and wrote a separate majority opinion.

Let's look at what this decision did:
  1. The decision that the PPACA Mandate was unconstitutional as a function of the Commerce Clause: 5-4 (Roberts, Scalia, Alito, Kennedy and Thomas).
  2. The decision that the Necessary and Proper Clause as a vehicle to the PPACA was unconstitutional (it may have been necessary, but it was not proper): 5-4 (Roberts, Scalia, Alito, Kennedy and Thomas).
  3. The decision that the Medicaid provisions were an unconstitutional coercion by Congress against the sovereignty of the States (spending power): 7-2 (Roberts, Scalia, Alito, Kennedy, Thomas, Breyer and Souter).
  4. The decision that the PPACA survives as a constitutional power of the Congresses ability to Tax (General Welfare): 5-4 (Roberts, Souter, Kagan, Breyer and Ginsberg).
Each and every point above affects now or will affect our civil rights, including our gun rights. The legal ramifications alone are immense for or against Federalism.

The above have been my thoughts of this decision from my second reading of the decision. This has been confirmed, by the academic discussion that the SCOTUS Blog hosted in the days following the decision: Sebelius Post-decision Symposium, comprising short summaries by liberal, conservative and libertarian Professors of Law. Many (most?) of them, the leading scholars of todays constitutional interpretation. It is a must read on what the NFIB v. Sebelius decision did and/or did not do.




Notes on terms used, thus far:
CJ = Chief Justice
NFIB = National Federation of Independent Business - 1 of the 3 combined lawsuits that the Court granted cert.
PPACA = Patient Protection and Affordable Care Act - The law that was at issue.
SCOTUS = Supreme Court Of The United States.
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Old July 8, 2012, 07:44 PM   #2
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Several aspects of the decision echo the Rehnquist Court. In some ways, this is a big victory for Federalism in general.

Kopel's analysis points out that,

Quote:
NFIB brings interpretation of the [Necessary and Proper] clause back to Marshall’s originalist opinion in McCulloch v. Maryland (1819): The clause grants Congress no additional powers. Rather, per Marshall and Roberts, the Clause simply restates the background principle that Congress can exercise powers which are merely “incidental” to Congress’s enumerated powers. For example, since the Constitution expressly gives Congress to power to establish the rules of bankruptcy, Congress can enact laws against bankruptcy fraud.

(...) plaintiffs who wish to challenge congressional and presidential overreaching have much stronger Supreme Court precedent than they did yesterday.
Roberts walked a fine line here, but in the end, he kept the Court's credibility intact (something that had become strained by decisions like Bush v. Gore and public upbraids from the administration). Furthermore, he dug his heels in on the concept of Federalism, and by declaring the law at hand a tax, he cleverly punted it back to the legislative branch.
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Old July 8, 2012, 09:07 PM   #3
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One thing I disagreed with was the courts ability to change the wording that the lawmakers chose. If the law said a "tax" then I would be more in agreement with the opinion vs. the SCOTUS deciding to make it into a tax despite it not being billed as such. When the POTUS pushes that this is absolutely not a tax, the SCOTUS should not be running interference for ignorant lawmakers.

At what point could the SCOTUS be limited in doing this?
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Old July 8, 2012, 09:10 PM   #4
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While Roberts did walk the Constitutional Law tightrope, the tax question takes center stage for me. What are the implications of Congress being able to penalize/tax people's refusals to buy a certain type of good or service?

I am glad Roberts kept the Commerce Clause from expanding further, but am concerned that he allowed the taxation power to replace it as the vehicle of choice for expanding government power.
Where are the limits?

As an aside, what happens when the Executive and Legislative branch deny that a law is a tax, after the SCOTUS ruled that it can only stand as a tax? It is not like the SCOTUS will rehear the case based on a press release, but it doesn't make sense for the drafters of a law to claim the only reason the law can be upheld is not what they wrote.

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Old July 8, 2012, 09:52 PM   #5
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Quote:
While Roberts did walk the Constitutional Law tightrope, the tax question takes center stage for me. What are the implications of Congress being able to penalize/tax people's refusals to buy a certain type of good or service?
Is there a meaningful difference between that, and the concept of tax credits? It seems to me like it's a semantic difference with the same result.

"Pay more tax if you don't buy X"
"Pay more tax and it gets offset with a tax credit if you buy X"
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Old July 8, 2012, 10:06 PM   #6
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But according to the COTUS, the healthcare bill which is now allowed as a tax or penalty did not originate in the right "house"... Since it is a revenue bill according tot he SCOTUS, it is illegitimate...

Started and voted in the wrong house it is not a bill at all...

So why are not more scholarly than me bringing this to the limelight?

Sorry but if I try to establish things from my bathroom and wifey refuses to accept... I have to start the new rule from the dining room table!!!

She insists on "proper channels" as we should...

Brent
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Old July 8, 2012, 10:17 PM   #7
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Where the bill originated was not an issue in this particular case.

As noted by CJ Roberts, this can not be a penalty, as no law has been broken. Failure to engage in receiving insurance had no criminal charge. In the rather convoluted (and torturous) logic used, since it was not a penalty, it must be a tax.
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Old July 9, 2012, 08:43 AM   #8
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Al, I am not writing to give you a rash, but I think some clarification is in order given the warning with which you opened this thread.

Quote:
Originally Posted by Al Norris
This thread is not about President Obama's Health Care Mandates
Yet, in the same post you note,

Quote:
Originally Posted by Al Norris
Let's look at what this decision did:
I. The decision that the PPACA Mandate was unconstitutional as a function of the Commerce Clause:...
Is the mandate a matter for discussion here, or does it result in a banning?

Thanks.
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Old July 9, 2012, 09:26 AM   #9
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Assuming that the Hughes Amendment is overturned or legislatively negated in the future, the notion that a $200 transfer tax for NFA weapons is unconstitutional has just taken a serious hit. Originally designed to be "confiscatory" ($200 was a small fortune in the Depression) it now restricts NFA weapons to the merely well to do.

The greater implications are more ominous: Suppose the '34 NFA was expanded to include semi-auto "assault weapons" of whatever description, and/or handguns (originally included in the NFA but withdrawn for political reasons). At what point does the Govt's authority to tax infringe on the 2nd Amendment's right to keep and bear arms? We already have lawsuits filed against NY's excessive registration fees. Will the Court uphold those fees as inherent in the Govt's right to tax? If so, why not a $200 tax on every firearm? Or a $500 tax? Or a $5,000 tax?

At some point, the Court will certainly step in to say "Enough!" This precedent will facilitate them doing it later rather than sooner.
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Old July 9, 2012, 09:54 AM   #10
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Quote:
Originally Posted by zukiphile
...Is the mandate a matter for discussion here,...
No, the mandate is not open for discussion here, and Al Norris made that perfectly clear.

What may be discussed are the legal ramifications for Federalism and civil rights, including gun rights, of the Court's rulings on the Commerce Clause, the Necessary and Proper Clause, State Sovereignty and the power to Tax.

If you don't clearly understand that distinction, don't bother to post in this thread.
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Old July 9, 2012, 10:05 AM   #11
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Quote:
Originally Posted by frank ettin
No, the mandate is not open for discussion here, and Al Norris made that perfectly clear.

What may be discussed are the legal ramifications for Federalism and civil rights, including gun rights, of the Court's rulings on the Commerce Clause, the Necessary and Proper Clause, State Sovereignty and the power to Tax.
Emphasis added.

Frank, the Court's ruling on the commerce clause applies to the mandate and penalty/tax enforcing it.

Do you now see how that is not perfectly clear? If it were perfectly clear, I doubt that tyme would have discussed it above. I didn't ask the question to be offensive, but to clarify. Your explanation contains the same ambiguity.

In the prior thread, it was I who noted that discussing the decision didn't require discussion of general medical insurance public policy. Yet, the mandate and its enforcement mechanism is clearly a part of the decision.

Your courtesy in this has been greatly appreciated. I will be happy to abstain until this is resolved.

Last edited by zukiphile; July 9, 2012 at 10:29 AM.
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Old July 9, 2012, 10:39 AM   #12
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zukiphile - there will be very little banning due to this thread unless some member goes ballistic which I don't see happening. Posts may be deleted, and there may be infractions handed out if the posts go too far against the ground rules Al laid down.

Now, since we can't determine what you want to say about the mandate as opposed to the Court's ruling concerning the commerce clause until you actually post it, what is it about the mandate itself that you want to discuss?

The worst that can happen is your post (and this one) get deleted if it is not within the guidelines as stated. Or, you might point out that some clarification is in order.
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Old July 9, 2012, 10:53 AM   #13
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This is a landmark case and will have impact across the entire legal spectrum for many years.

As a non lawyer, I think the plaintiffs failed to effectively argue (ignored) the tax issue. Many decisions have been based on the intent of Congress. In this case the Congressional Record clearly indicates that Congress intended the "tax" to be a penalty. Had the Plaintiffs spent more time rebutting the Tax argument , Justice Roberts would have had the means to invalidate item IV.
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Old July 9, 2012, 11:05 AM   #14
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Quote:
Originally Posted by Mal H
Now, since we can't determine what you want to say about the mandate as opposed to the Court's ruling concerning the commerce clause until you actually post it, what is it about the mandate itself that you want to discuss?
Thanks, Mal. I am not looking for any special dispensation. The ambiguity I note is that the mandate is what the court discusses in its commerce clause decision, so one wouldn't discuss the mandate as opposed to the commerce clause ruling. It's what the commerce clause ruling is about.

I've dealt with Al previously, and found him calm and reasonable. I sought clarification so that the ambiguity I had noted could be resolved and that I might write within the boundaries he had envisioned. It wasn't intended to provoke belligerence.

My prior post does pertain to the mandate in discussing the decision and its potential effects, and is consistent with some of what has been written above.

Quote:
I don't think this ACA decision is quite as awful as many ACA opponents do, in part because it contains some language that may be useful in future.

I would observe that the tax code is already used to influence a wide range of behaviors, and that NFA purchases are discouraged by a substantial regulatory burden and a tax. Nothing would prohibit, as a political matter, that kind of regulatory and tax burden from shifting into all other arms.

The part of the reasoning I find most curious is that the ACA mandate isn't within congressional authority as granted by the commerce clause, but since the congress has the authority to tax the ACA mandate is upheld as a valid exercise of taxing authority.

It doesn't take a lot of imagination to foresee a punitive tax on gun ownership or public speaking. Under the Roberts' rationale, since those taxes prohibit no speech or ownership, and congress has taxing authority, would those taxes be upheld?
I do enjoy the forum; it's a great resource.

However, this is your club, and you set the rules. I only meant to determine what they are.
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Old July 9, 2012, 12:17 PM   #15
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About the bill originating in the wrong house of congress, I'm not sure that's true.

See http://en.wikipedia.org/wiki/Patient...are_Act#Senate

As long as bills are allowed to be hijacked and completely repurposed, the letter of the law appears to have been followed.
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Old July 9, 2012, 12:41 PM   #16
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Quote:
As long as bills are allowed to be hijacked and completely repurposed, the letter of the law appears to have been followed
I'm not aware of the Supreme Court ever striking down a law because of the means under which it was passed. They concern themselves with the final result.

(I could be wrong on this, and if so, Al's the guy to ask.)
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Old July 9, 2012, 01:07 PM   #17
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I have been saying that if they had used the word "tax" those that voted for it would have committed political suicide, but that a "Tax" it was. a horse by any other name is still a horse...

I agree it is a tax, and I also agree that any revenue measure should originate in the house. Now, are those that be going to file a suit in consideration of that??? I expect that will depend on who wins and who looses, and by how much, in November.
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Old July 9, 2012, 01:32 PM   #18
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Zukiphile:

I think it safe to say that while the lawsuit was about the PPACA, the actual decision shut the door on further Commerce Clause expansion. That was the point that CJ Roberts made (in concert with the dissent), that Wickard was the ne plus ultra (the outer limits) of expansive Commerce Clause jurisprudence.
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Old July 9, 2012, 01:48 PM   #19
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I think the SCOTUS would have no problem striking down a law violating sentence 1 of Article 1 Section 7, if it were violated overtly by creating S.B. xxxx that dealt with taxes. (What Hogdogs was originally referring to.)

Quote:
Originally Posted by Article 1, Section 7
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.
The Senate isn't that stupid. SOP for the Senate is apparently to gut and rename tax legislation from the House, turning it into an entirely different bill while retaining the same bill number.

I wonder if someone could mount a constitutional challenge on the reasoning that changing the title and stated purpose (and the contents) of a bill, turns it into a new bill, regardless of the history of its bill number.

http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.3590:

Quote:
There are 7 versions of Bill Number H.R.3590 for the 111th Congress. Usually, the last item is the most recent.

1 . Service Members Home Ownership Tax Act of 2009 (Introduced in House - IH)[H.R.3590.IH][PDF]
2 . Service Members Home Ownership Tax Act of 2009 (Engrossed in House [Passed House] - EH)[H.R.3590.EH][PDF]
3 . Service Members Home Ownership Tax Act of 2009 (Placed on Calendar Senate - PCS)[H.R.3590.PCS][PDF]
4 . Patient Protection and Affordable Care Act (Amendment in Senate - AS)[H.R.3590.AS][PDF]
5 . Patient Protection and Affordable Care Act (Public Print - PP)[H.R.3590.PP][PDF]
6 . Patient Protection and Affordable Care Act (Engrossed Amendment Senate - EAS)[H.R.3590.EAS][PDF]
7 . Patient Protection and Affordable Care Act (Enrolled Bill [Final as Passed Both House and Senate] - ENR)[H.R.3590.ENR][PDF]
No one can claim that that sequence is in the spirit of Article 1 Section 7. Other than the bill number, it became a completely different bill. The court arguments would be about whether that change is a valid exercise of the amendment power. Arguing that such fundamental changes constitute a valid amendment, would render the first clause of Art. 1 Sec. 7 meaningless.
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Last edited by tyme; July 9, 2012 at 01:54 PM.
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Old July 9, 2012, 01:56 PM   #20
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Al, that is clearly a correct restatement of the decision on the commerce clause. The issue opened by the Roberts rule, i.e. upholding an otherwise unconstitutional provision as a tax despite vociferous denial that it is a tax except as a matter of alternate pleading, is whether the commerce clause, or any other constitutional limitation, operates as an effective limit of any matter that could be construed as a tax.

Thus, the majority decision in Raich could be unnecessary if the tool used by Congress to regulate intra-state, non-commercial activity were merely taxed punitively.

If the Roberts rule dies soon, ideally at Roberts' own hand, and the commerce clause jurisprudence remains, this decision could be very useful. However, his reasoning also has the potential of an application leaving the commerce clause a virtual dead letter.
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Old July 9, 2012, 01:59 PM   #21
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Quote:
No one can claim that that sequence satisfies the spirit of Article 1 Section 7.
Least of all a guy as smart as Justice Roberts. I'm telling you guys, he knew exactly what he was doing here, and this decision is only tangentially about the constitutionality of a law requiring health insurance.

He was walking a similar political minefield as a previous Justice by the same last name, and he did it quite deftly. As Al mentioned, he drew a line at Wickard, and he's left the primary matter open to future challenge in both the legislative and judicial branches.

I really do picture him chortling into his sleeve about this one.
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Old July 9, 2012, 02:28 PM   #22
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I don't think he's that clever, and I don't think he would want to set up another challenge that would result in the law being struck down on easily repairable procedural grounds. Think about what happened after Lopez. Congress re-passed the Gun Free School Zones Act with boilerplate interstate commerce language.

Insiders claim he was worried about the consequences of striking down Obama's signature legislation. To strike down the law after another challenge on the basis that it originated in the wrong house would be even worse than striking it down last month on substantive grounds.

It would create chaos. Every other revenue law would have its legislative history checked, and would be challenged, and struck down by the courts, if found to have been gutted and re-purposed by the senate.

Any laws struck down would be re-passed by the next sympathetic Congress and President.

It would be a hollow victory. The Roberts court would be viewed as both vindictive (striking down Obama's signature legislation) and wasting everyone's time.
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Old July 9, 2012, 07:14 PM   #23
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Quote:
Is there a meaningful difference between that, and the concept of tax credits? It seems to me like it's a semantic difference with the same result.
Yes, there is. A tax is very different than a tax break. Tax credits are discounts/subsidies. The penalty/tax is not a discount.
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Old July 10, 2012, 08:32 AM   #24
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Quote:
Originally Posted by raimius
Yes, there is. A tax is very different than a tax break. Tax credits are discounts/subsidies. The penalty/tax is not a discount.
If your entire income is taxed at 100% and the only way to retain your income is to conform to a list of government mandates in order to have the benefit of a deduction, discount or subsidy, the mandated behavior is just as effectively enforced. Both involve use of tax to compel or effectively prohibit behavior.
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Old July 10, 2012, 03:11 PM   #25
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There is a difference between discounting to encourage behavior and penalizing to compel it. For some people, the amounts will end up being similar, but the legal reasoning and theory that they operate under are very different.
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