My personal reactions to the Supreme Court decision yesterday have varied, but wherever I find myself at any given moment, I mainly still agree with what Carson Holloway said so well in his post “In Defense of John Roberts,” indeed it is mostly what I would have wanted to have said. I particularly liked this line:
But if you think the mandate is just so obviously beyond the scope of the taxing power that only a knave or a fool would think otherwise, then I think you have drunk the Kool Aid.
I am certainly no lawyer and I still don’t play one on TV, but from the point of view of someone who argues a lot with people on both sides of the political aisle and as someone who thinks that the democratic process is a good thing, I find myself wanting to agree with Roberts’ decision more than not.
I have listened to John Yoo and Richard Epstein about why this is such a poor decision. They could be absolutely right that this is an unprecedented argument on the part of the Chief Justice. But that it’s unprecedented doesn’t convince me that it is totally unreasonable.
To my simple mind, addled no doubt by years of reading theology instead of law, Roberts asks whether or not Congress could have meant this to be a tax even though they didn’t want to call it a tax. In answer to that question Roberts says yes… and so do I.
I know, I know Obama insisted it wasn’t a tax and Pelosi and the rest said it wasn’t a tax. Sure, sure, I understand. But they’re politicians. They and their partisan goons had to lie through their teeth in order to get senators like my own Ben Nelson of Nebraska to vote for the damnable thing. Why are we shocked – shocked! even – that politicians would lie about a bill in order to get it passed? Are you serious, are you serious?
Scalia et al. say that the Court can’t make the bill before them say something it doesn’t say. I agree with that too. But in the end, it strikes me as a matter of legal opinion as to whether or not this bill’s language can be interpreted to mean “tax” when it says “penalty” or not. Scalia et al. say no. Roberts and his group say yes. I don’t know, but like I say, I believe it is possible that the administration knew what they were doing.
The Democratic Party knew that this was a tax. They knew it all along and they wanted to hide that fact from the beginning. As George Stephanopoulos (so glad his name is on spell-check) said to the President, the dictionary definition of “tax” shows that this is a tax. The protestations of the President are the just the mealy-mouthed jawing of a politician selling something.
So if it can be considered a tax, is it so wrong for Roberts to then say that it is not the Supreme Court’s job to determine whether a tax is a good idea or a bad idea?
I also understand the argument that this is horrible decision by Roberts because if the Congress can tax us for inactivity, then it they can tax us for anything. But to that I just have to say that I don’t know about you, but I’ve been free for some time now from the illusion that the State can’t tax us for anything. Again, I know I’m no lawyer and certainly not a Constitutional expert, but I always figured that, if they wanted to, Congress could pass a law that taxed my nose hairs. But this leads me to my final point for which you dear readers are probably grateful.
What I like about the Roberts decision is that given Congress’ power to tax, it is not up to the Supreme Court to decide for us whether it’s a good idea or not. It is not up to the Court to decide that this tax is better economic policy or poorer social policy. Whether a tax is a good idea or not ought to be part of the legislative process, a process you and I are in control of by voting for or against the nimrods who say Congress can tax my nose hairs and my inactivity. So bring it on. Let’s vote out the bums and overturn this horrible law.