A Hollow Victory for Obamacare - Sen. Mike Lee - National Review Online: "As Justice Kennedy noted in his dissent, “imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” There is simply no way that the ACA would have become law had the American public and their representatives understood the mandate as a tax."
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This seems to be the argument Roberts didn't answer.
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How was he supposed to address that though? "I interpret this as a tax, even though the language of the law doesn't call it a tax. As a tax it is constitutional, but it wouldn't have had the votes had it been called a tax..so I'll strike it down on the grounds that the language was misleading." Something along those lines would've been even more strange.
Roberts needs to explain why this is a tax if tax power specifically limits the origination of a tax in the house. In other words, there's a specific provision in the constitution that is says you need to originate any law that imposes a tax in a certain place. Its an accountability provision. The most accountable branch of government needs to originate the tax. But how can congress be held accountable if the law is not even clearly labeled a tax? The dissents answer is that if they can't be held accountable for originating a tax, the law is not a tax for constitutional purposes and the tax power does not justify the law. What's Robert's answer? If justice Roberts doesn't have an answer, he loses.
Here's Althouse on the issue:
http://althouse.blogspot.com/2012/06/how-chief-justice-roberts-reenvisioned.html#more
In that context, the idea is that people need to know whether the state or federal government is responsible for a given matter so they can know who deserves blame or credit for a given policy. I think it's a real omission for Roberts not to address the accountability theory with respect to the mandate as a tax. Justices Justices Scalia, Kennedy, Thomas, and Alito were explicit about it, and it was obvious anyway. Maybe Roberts could have said that these 2 accountability situations are different. If Congress uses deceptive labeling to keep people from getting stirred up in time to stop the legislation, that's between Congress and the electorate, and we can get mad later and vote the bums out. But if Congress employs the states to do its work and the people don't like it, the people will be confused about who's really responsible. Congress will have blurred the lines of accountability. The people will have trouble knowing who are the bums. Roberts might have said something like that. These are 2 different ways of tricking people and one matters and one didn't.
But Roberts didn't talk about it. You know, there's a such thing as judicial accountability too. That's what these opinions are for.
Is the argument that congress has to originate taxes and in this case it's the court who originated the tax?
But is interpreting language to be equivalent to a tax the same thing as originating the tax? Can't congress still be held accountable for the law?
Right on the first.
Of course, after the law is passed and deemed a tax, well, we know it's a tax. But its a little late to influence the legislature at that point.
The constitution seems to contemplate that there is a specific accountability for originating the tax--Coming up with a new tax that needs to occur at the time the bill is originated.
If that's not the case, then what other purpose does this provision serve?
The law was rushed through in such a way that the vast majority of voters likely never considered whether it was a penalty or a tax. And the last election did punish them for their behavior (though not specifically for it being a tax).
If congress felt the commerce powers were most befitting the law, should they be held accountable for the reinterpretation? But then if they just always call things that are obviously taxes by other names, can the supreme court not point out that they are taxes since that's not where taxes can be originated? (Don't know if I explained that well. Let me try again. Should we say that the court can never interpret something as a tax even if it obviously is? Should congress be held accountable for creating a tax when it wasn't their intention?)
That all seems like pretty murky waters to me.
On another note, did Roberts ever address the non-applicability of the injunction clause?
Was the law really rushed through more than any other law? I remember extensive debate about the law at the time--although much of it was speculation because they didn't have the actual bill available.
I think that voters probably didn't think about whether it was a tax or not because it clearly was not labeled a tax and because the Obama administration specifically and repeatedly denied it was a tax. Although there was at least one question by George Stephanopoulos
Your right--I don't think we should say that the court can never reinterpret something that is not labeled a tax as a tax. Two responses. First, not only was this not labeled a tax, but it doesn't really look like a tax. It looks like a penalty. It was called a penalty and there is a long line of cases that distinguish between the two (and reinterpret so-called taxes as penalties, but not the other way around.)
But more to your question--it seems to me that if the court finds a bill that is not label a tax to be a tax, it should probably be unconstitutional because it didn't originate in the house as a tax.
The key here is the "originate" language. It seems to me like the constitutions specifically contemplates that congress will be more responsive to the electorate on questions of taxing if the tax bill is proposed in the house, where the people can most easily influence the political process. But if the bill is not labeled a tax and doesn't look like a tax, and is only re-characterized as a tax later, how can the electorate hold house members accountable retroactively? This seems to thwart the constitutional structure. I see this as a kind of transparency requirement. If the bill is a tax bill, call it a tax bill up front. Otherwise, you don't get to use your taxing power.
I suppose you could interpret the provision as saying, well, as long as the bill itself originated in the house that is fine--regardless of whether it's called a tax at the time. But that seems contrary to the thrust of the provision, which is to make house members accountable at the time of origination.
I forgot to address your other question about the anti-injunction act.
Yes, he did address it. He said that congress's use of the term "penalty" indicated that it did not want the anti-injunction act to apply. The anti-injunction act is only a statute, and congress can exempt later laws from prior statute.
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