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So, to summarize: the Individual Mandate says that you have to have health insurance, or pay a fee. Said fee is collected through the IRS, as part of your taxes.
Obama has specifically said that "it's not a tax", because it's a penalty fee.
Eight Supreme Court justices take him at his word, and look were looking at the question of whether the Commerce Clause gives Congress the power to mandate the purchase of insurance.
For those of you who are in other countries and therefore have no reason to know what the "Commerce Clause" is, it's part of the United States Constitution stating that the Federal Government has the power to:
The question is: does "mandating individuals purchase insurance" fall under the "Power. . . to regulate Commerce . . . among the several states"?
Roberts, Alito, Kennedy, Thomas, and Scalia said it doesn't. Ginsberg, Sotamayor, Kagan, and Bryer said that it does.
That LOOKS like a five-four decision saying that "the Commerce Clause doesn't give Congress the power to do this, therefore it's not something Congress can do, therefore it's unConstitutional." However, Roberts went somewhere different.
Roberts said, "Look, I know Obama SAID the 'penalty' 'wasn't a tax', but, c'mon -- it's an amount of money that the IRS collects with your taxes. It's a tax. It makes sense to say, 'this is a tax that we charge, but you get a credit for it if you have health insurance.' And THAT, totally, falls within the power Congress has to lay taxes. So, while it's not Constitutional under the Commerce Clause, it IS Constitutional under the powers of taxation."
We set up tax structures to encourage behaviors all the time. Cigarettes are as expensive as they are because the government taxes them heavily in order to make them expensive, so that people will have more reason to quit, for instance. So I agree with Roberts that we can totally set up a "tax on not having insurance."
But. . . what about the Commerce Clause argument?
Throughout the 20th Century, the Commerce Clause has been the primary justification for the Federal government to mandate fairness and justice within the workplace. OSHA (the Occupational Safety and Health Administration) requires all workplaces within the United States to maintain certain minimum safety and health standards. No company in the US can use child labor, except under limited and controlled circumstances. Businesses are not allowed to discriminate on the basis of race, religion, sex, or the like.
The Commerce Clause is the justification thereof, under the argument that, if ONE state DID allow people to, for instance, use child slave labor, that might give that state an advantage over states that forbade it. And therefore, ensuring certain standards of justice that apply equally to all states is part of "regulat[ing] Commerce . . . among the several States."
As Lis texted me: "A Congress which can force people to buy insurance is a Congress that can force restaurants to serve Black people."
It's the same power.
And that's a power that Alito and Scalia, at least, have been very clear that they want to limit, or abolish.
And Roberts very specifically didn't deny the possibility that he'd think about that . . .
Alito and Scalia want to roll back all the social justice gains that we made in the 20th Century, and go back to the "freedom" of the robber baron days. I have no idea what Thomas thinks about this: he WAS a commissioner of the Equal Employment Opportunity Commission, so I sort of GUESS that he'd more-or-less support the existing Commerce Clause arguments; I don't know what Kennedy wants.
Roberts, Thomas, and Kennedy appeared to accept that the Commerce Clause can regulate EXISTING commercial action, but that this law would CREATE commercial action, which is different.
So what do we have here? We're looking at the clause that is the justification for social justice and fairness in the workplace. Two justices are actively hostile to it. Four justices are clearly in favor of it. And three justices are up in the air, for very different reasons, and with very different backgrounds.
Thomas has got to be personally torn on this. I mean, he's extremely conservative, and tends to dislike having a Federal government that is powerful enough to do all the things that the EEOC does -- but he also clearly at least SOMEWHAT supports what the EEOC does, because he DID it.
Obama has specifically said that "it's not a tax", because it's a penalty fee.
Eight Supreme Court justices take him at his word, and look were looking at the question of whether the Commerce Clause gives Congress the power to mandate the purchase of insurance.
For those of you who are in other countries and therefore have no reason to know what the "Commerce Clause" is, it's part of the United States Constitution stating that the Federal Government has the power to:
Article I, Section 8, Clause 3:[2]
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
The question is: does "mandating individuals purchase insurance" fall under the "Power. . . to regulate Commerce . . . among the several states"?
Roberts, Alito, Kennedy, Thomas, and Scalia said it doesn't. Ginsberg, Sotamayor, Kagan, and Bryer said that it does.
That LOOKS like a five-four decision saying that "the Commerce Clause doesn't give Congress the power to do this, therefore it's not something Congress can do, therefore it's unConstitutional." However, Roberts went somewhere different.
Roberts said, "Look, I know Obama SAID the 'penalty' 'wasn't a tax', but, c'mon -- it's an amount of money that the IRS collects with your taxes. It's a tax. It makes sense to say, 'this is a tax that we charge, but you get a credit for it if you have health insurance.' And THAT, totally, falls within the power Congress has to lay taxes. So, while it's not Constitutional under the Commerce Clause, it IS Constitutional under the powers of taxation."
We set up tax structures to encourage behaviors all the time. Cigarettes are as expensive as they are because the government taxes them heavily in order to make them expensive, so that people will have more reason to quit, for instance. So I agree with Roberts that we can totally set up a "tax on not having insurance."
But. . . what about the Commerce Clause argument?
Throughout the 20th Century, the Commerce Clause has been the primary justification for the Federal government to mandate fairness and justice within the workplace. OSHA (the Occupational Safety and Health Administration) requires all workplaces within the United States to maintain certain minimum safety and health standards. No company in the US can use child labor, except under limited and controlled circumstances. Businesses are not allowed to discriminate on the basis of race, religion, sex, or the like.
The Commerce Clause is the justification thereof, under the argument that, if ONE state DID allow people to, for instance, use child slave labor, that might give that state an advantage over states that forbade it. And therefore, ensuring certain standards of justice that apply equally to all states is part of "regulat[ing] Commerce . . . among the several States."
As Lis texted me: "A Congress which can force people to buy insurance is a Congress that can force restaurants to serve Black people."
It's the same power.
And that's a power that Alito and Scalia, at least, have been very clear that they want to limit, or abolish.
And Roberts very specifically didn't deny the possibility that he'd think about that . . .
Alito and Scalia want to roll back all the social justice gains that we made in the 20th Century, and go back to the "freedom" of the robber baron days. I have no idea what Thomas thinks about this: he WAS a commissioner of the Equal Employment Opportunity Commission, so I sort of GUESS that he'd more-or-less support the existing Commerce Clause arguments; I don't know what Kennedy wants.
Roberts, Thomas, and Kennedy appeared to accept that the Commerce Clause can regulate EXISTING commercial action, but that this law would CREATE commercial action, which is different.
So what do we have here? We're looking at the clause that is the justification for social justice and fairness in the workplace. Two justices are actively hostile to it. Four justices are clearly in favor of it. And three justices are up in the air, for very different reasons, and with very different backgrounds.
Thomas has got to be personally torn on this. I mean, he's extremely conservative, and tends to dislike having a Federal government that is powerful enough to do all the things that the EEOC does -- but he also clearly at least SOMEWHAT supports what the EEOC does, because he DID it.