Saturday, June 30, 2012

Supremely Confusing

The Supremes have issued their long-awaited decision regarding the Affordable Care Act, and we hear lamentations from the Republicans and praise from the Democrats, pontifications from pundits, and little else.  It has been a long and depressing process for anyone of sense, I believe, and one can't help but feel glad it's over, regardless of the outcome.  In these dark times, the hyperbolic responses of those on the Right are predictable but still disturbing.  How this era (O tempora!) cries out for calm deliberation.

It is quite correct for the majority to note that courts have no business assessing policy, and should not indulge in questioning the wisdom of legislation.  The majority also appropriately rejected the rather tortured effort to justify the individual manadate under the Commerce Clause.  This was in my opinion what is being called these days "a nonstarter."  A clumsy word employed increasingly in our dundering, heavy-handed society.  Far too infrequently, even the law meshes with common sense, and the claim that citizens of our Glorious Republic may be induced under threat of penalty to engage in commerce by Congress through its power to regulate commerce defies common sense just as much as legal precedent.  So, kudos to the majority for noting this and ruling accordingly.

I'm less comfortable, though, with its determination that what has consistently been called a penalty (and is still being called a penalty by the White House in spite of the Court's decision) is nonetheless a tax, and when considered as such is a constitutional exercise of the Congress' taxing power.  But I suppose the majority takes the position that this is an instance where the law simply does not mesh with common sense.

Those who supported and voted for the law presumably were loath to describe the mandate as a tax due to the fact that the mere thought of a tax sends many of us into a frenzy.  So it's likely that it has never been (and still is not) described as a tax for political reasons, which given the current climate is all the reason our politicians require, or respect.  Nevertheless, there are diffences in the law between a penalty and a tax, and those differences can be significant.  For example, those differences may, as in this case, establish whether or not a law is constitutional.

The law is certainly best defended as a tax.  Our government has successfully taxed all manner of things, and the courts hesitate to declare them unlawful.  I find it hard to understand why the law was not adopted as an exercise of the taxing power in the first place.  We're regularly taxed "for our own good" despite the fact we don't want to be--sometimes, the tax really is for our own good.  But I suppose this is to make the error of thinking like a lawyer, not like a politician (or I suppose I should say like a politician who is also a lawyer, or was one, at least; there are so many of these unnatural creatures).

Another odd thing regarding the outcome of the decision if not the decision itself is the speculation being indulged in to the effect that the Chief Justice sided with the majority because he wanted to "save" the Court from being politicized.  This is a kind of fantasy, I believe, which is probably only briefly entrancing some of our pundits, who think that Justices Scalia and Thomas are far too political.  But the Court has always been political, as have many of the Justices of the past (Douglas comes most immediately to mind as a politically liberal Justice).  I tend to think the Justices, and their close relatives, should keep their mouths and their wallets shut myself particularly as to matters which have or likely will come before them.  But this kind of wisdom and dignity is not to be expected today, and perhaps has never existed.

The decision is a curious, confusing thing.


  1. Good points. I'll add only that the usual case is for US courts to refuse to adjudicate the constitutionality of taxes until they are actually levied/enforced. The provisions of the Affordable Care Act are bing phased in gradually, so no one is AS OF NOW required to buy insurance by federal law, or penalized (taxed) for failing to do so. Given that situation, one can make a strong case that since the court came to the conclusion this was a tax, it should have found that it not ripe for decision -- it should have said "come back to us with this in a couple of years, folks!"

    Roberts found that this is a tax, but a rather special kind of tax, the substantive constitutionality of which the court COULD decide upon. That required threading a rather small eye of the needle.

    1. I think you're right. Perhaps it would have been easier for a camel to pass through that eye in this case as well.