There is much to be said about the decision rendered on the Affordable Care Act (“ACA”) and there is much about the court’s deliberations we won’t know for quite a long time. But, several aspects of the ruling scream out for scrutiny. Many on the left are claiming a massive put-down of the Troglodytes – or conservatives, if you will. And perhaps the funniest self-service the radical left is advancing is the notion that a 5 to 4 opinion upholding the ACA preserved the dignity of the court and its independence as the ultimate arbiter. This is in contrast to the warnings they advanced and which apparently intimidated the Chief Justice that a five to four ruling invalidating the ACA would be ideological. Oh.
Perhaps most amazing is not that the Chief concluded the “penalties” under the ACA are “TAXES,” duh, they are, it’s that the four conservative Justices dissented in toto rather than align themselves with the Chief even on the matters they agreed on. So, contrary to the breathlessly reported “fear” that “Four white men and Uncle Tom” would decide, one white man did. One man? Well, yes. Reading the opinion of the four Justices who joined the Chief is to read dissents written before he drifted into their camp. So, in their frustration, they got the decision they wanted but, not for the right reasons. Cranky is the result.
The four issues briefed at the request of the Court were:
1. “The Anti-Injunction Act” that denies a complainant standing to be heard in court to prevent the imposition of a tax and instead must wait until a tax is imposed and paid before sing for a refund
2. “Severability” that prescribes that if a portion of a statute if found unconstitutional absent language preserving the remainder, the entire act must fall
3. The expanse of the “Commerce Clause” and whether the federal government may order persons to engage in commerce they otherwise would not and to purchase products from the private sector through imposition of the “Individual Mandate.”
4. Whether the federal government may “coerce” or extort cooperation from the several states by threatening to withhold all federal funding for Medicaid benefits should the state decline to expand its program as prescribed by the Congress.
A tangential issue for which the Court did not seek illumination was whether the Congress enjoys Constitutional authority to levy taxes – it does – and whether the “penalties” included in the ACA to enforce compliance with the Individual Mandate were in reality “taxes.”
Each question before the court produced what Thomas Jefferson called twistifications; that is, ambiguities and illogic too difficult to rationalize.
First, the Court found that the Anti-Injunction Act was inapplicable because no tax had been imposed under the ACA according to its unambiguous language. The ACA does not contain the word “tax” in any of its funding provisions, not even once. And, the Congressional Democrats and the President famously ridiculed those who claimed that the “penalties” imposed to fund ACA were, for all intents and purposes, taxes.
During oral argument, even liberal Justice Ruth Bader Ginsburg raised the definition of “tax” during two of the four sessions and clearly explained that the penalties imposed under ACA were not taxes by their design and purpose.
Remarkably, the Left-wing of the Court joined by Chief Justice Roberts found that the clear language, Congressional intent, Presidential declarations was irrelevant and “twistified” beyond recognition what words mean.
This raises an obvious question: If the “penalties” are indeed “taxes” that haven’t been levied or paid, how could this case proceed if the predicate act – a complaint on unconstitutional tax collecting authority –was dismissed by the Court. Put differently, if these are “taxes” the issue isn’t ripe since they haven’t been collected. And, if the case isn’t ripe on this threshold question, the rest of the issues before the Court are moot.
Second, the drafters of the ACA “failed” to include a “severability” clause that would allow one or more provisions ruled unconstitutional while sustaining the remainder. In legislation this complex, in fact convoluted, it is the practice of the Court to reject the entire act rather than rewrite it. Justice Scalia famously opined in oral argument that if the Court were to sever the Individual Mandate requiring the Court to then evaluate each and every other provision, it would amount to “cruel and unusual punishment” under the 8th Amendment.
Third, the Court concluded that there are limits to the Commerce Clause, but they remain undefined and, the finding that Penalties which are clearly defined as not taxes essentially allows Congress to tax any behavior or non-behavior. The new fights will not be about expanding Commerce but rather, whether Congress can simply enforce behavior or prevent it through taxation: The Democrat Congress will simply tax to distraction until the victims; the citizens of the United States will have no choice but to pay or perish.
Fourth is the Court’s conclusion that the ACA provision allowing federal defunding all of Medicaid funds paid to a state that declined to incorporate all new demands for inclusion under the ACA is “coercive.” In fact it’s extortion.
More coming soon . . .
Sane and Insane 