IS IT A TAX: Barney Fife on the health care law!


Part 4—What Justice Roberts said: What did Justice Roberts actually say about that penalty/payment/fee/tax/fine/exaction?

Last Sunday, in the Washington Post, Kathleen Parker thought she knew. As she started, she explained what the court had said—“in other words,” that is:
PARKER (7/1/12): One of several ironies of Thursday’s ruling is that liberals are crowing about winning something they didn’t actually win. Yes, the court ruled that Obamacare is constitutional, but not on the basis of the commerce clause, as proposed by the Obama administration. Instead, the court ruled that the individual mandate to purchase insurance falls under Congress’s authority to tax and therefore is constitutional.

In other words, according to the high court, Obamacare constitutes a tax...
Oops. Whatever Roberts may have said in the relevant portion of his opinion, he obviously didn’t say that Obamacare “constitutes [is] a tax.”

Roberts wasn’t discussing “Obamacare” in the relevant passage. He was discussing the health care law’s “shared responsibility payment.” It’s just one part of the overall legislation.

Repeatedly, Roberts used that term (“shared responsibility payment”). He had taken it straight from the health law’s text.

Uh-oh! Already, Parker was mired in imprecision—and yes, such errors do matter. But as she continued, she waved the flag and further explained what she thought Roberts had said:
PARKER: Here’s what else the court said. When a tax is a tax, you have to call it a tax. No more pretense or doublespeak to fool or mislead people. This is a victory for all Americans, no matter what one’s political leaning, because it is a victory for plain speaking. If we could summarily order all politicians to say exactly what they mean, we would all be better off.
“If Americans had heard from the beginning that health-care reform meant a new tax, the legislation probably wouldn’t have gone far,” Parker further declared. In fact, the health law includes quite a few new taxes, and this fact had been widely discussed.

Parker is a Pulitzer winner. But she didn’t seem to know what she was talking about.

That said, the most interesting thing Parker wrote concerned a tax being a tax. “When a tax is a tax, you have to call it a tax,” she declared, claiming that this is what Justice Roberts had proclaimed on behalf of the nation. “No more pretense or doublespeak to fool or mislead people.”

When a tax is a tax, you have to say so! In fairness, Parker was hardly alone in thinking that Roberts had said something like this. Eventually, many pundits would say that Roberts had declared that the penalty payment in the health care law “is a tax.”

But that just isn’t what Roberts said. Sorry—it doesn’t come close.

For what it’s worth, Justice Roberts didn't engage in “plain speaking” in his own opinion. In fact, his line of reasoning was rather sophisticated.

He handled a set of twists and turns with some nuanced legal reasoning. Kathleen Parker, a Pulitzer winner, seemed to have little idea what he actually said.

Is the “payment” in question a tax? Or is it really a penalty? Because your press corps is poorly skilled, journalists quickly fell in line, accepting the salience of this either/or question.

But uh-oh! Because Roberts is vastly smarter than our highest-ranking journalists, he spoke with much more sophistication. He seemed to understand that specific “exactions” (a term he repeatedly used) can be seen in various ways.

People! A particular exaction can be both a penalty and a tax, just as Certs can be a breath mint and a candy mint! Roberts understands these twists and turns of (accurate) thought. Our high-ranking “journalists” don’t.

What did Roberts actually say? Almost surely, you haven’t seen a news report or analysis piece which quotes him at any length.

Instead, our journalists began to do the thing they do best—they began to imagine the gentleman’s motives. By now, you’ve seen many pundits read his mind. But have you seen his opinion quoted, except in cursory ways?

You’ve seen pundits speculate about the reasons for his opinion. But have you seen an analysis piece debating whether his findings were actually right?

We’ll guess that you have not. Within the floundering mainstream “press corps,” Homey don’t play those games.

The penalty payment is really a tax? In truth, that simply isn’t what Roberts said about the “exaction” in question. You can get the gist of what he said in the closing paragraphs of his discussion, which we post directly below.

In this passage, Roberts isn’t saying that the penalty payment “is a tax.” He doesn’t even say that is the most natural way to view it.

Justice Roberts says something different—he says the penalty payment can reasonably be viewed as a tax. And he says he's willing to view it that wayin order to save the law:
ROBERTS: The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

Justice Ginsburg questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.
Say what? “The statute reads more naturally as a command to buy insurance than as a tax?” That seems to be what Roberts says. But such a command can’t be justified by the Commerce Clause, he has earlier declared. So he says he’s forced to turn to this second approach as "a saving construction"—as a way to save the law.

(Earlier, Roberts said the court is required to search for any reasonable interpretation which would allow such a law to stand. Have you seen a single analysis piece which tells you if that is correct?)

Does he say the payment is a tax? No, he says it can reasonably be viewed as same, even if that doesn’t quite feel right. In an earlier passage, he has already said that this may not be the "most natural" way to view it:
ROBERTS: Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.
Is the penalty payment a tax? That may not be “the most natural interpretation,” Roberts suggests. But he says that, under court precedent, “every reasonable construction must be resorted to” before the law is struck down. And since the Obama Administration explicitly asked the court “to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” Roberts say that the mandate “can be so read.”

He’s willing to say that’s “reasonable,” “fairly possible,” even if it isn't the most natural way to view it.

We have no idea what Roberts’ motives were in reaching his judgments. We don’t know if he had any “motives” at all. Nor do we know if his judgments are right—and we have seen very few pundits or analysts broaching that basic question.

But Roberts’ ruminations are light-years away from the world Kathleen Parker imagined, in which the chief declared that “a tax is a tax,” then insisted that the nation’s pols engage in “plain speaking.”

Roberts himself displays nuanced thought in his opinion much more than plain speaking. But unskilled as they are, our “journalists” will always type The Preconceived Story They Like.

Is the penalty payment a tax? Sorry—it isn’t that simple. Fees and fines and taxes and penalties—all the various types of “exactions”—are closely related to each other in a series of family resemblances. No prophet ever brought a tablet Mount Semantica, a tablet telling us what each particular exaction has to be called.

Roberts suggested that it may not be “most natural” to view this exaction as a tax—but he said it’s close enough for constitutional work. But then, Roberts is infinitely smarter than our top journalists, as is clear in this nuanced opinion.

In fact, our journalists are highly unskilled. This has been plain for a great many years. In a land of 300 million souls, that’s a truly remarkable fact.

But then, we liberals are also quite light, not unlike our conservative forebears. They bashed Kerry for his wind-surfing. We bash Romney for his jet skis.

This is very low-IQ stuff.

But it’s who we are.

Concerning Barney Fife: “Nip it in the bud,” he constantly said.

That was good advice.

When her piece appeared on-line, Kathleen Parker didn’t. She seemed to have little idea what Justice Roberts had actually said. She made it sound like he had declared that the whole health law “[is] a tax!”

Within a few days, the hustlers and liars were taking advantage of this and a million other confusions. “The biggest tax increase ever,” these con men straight-facedly said.

Anderson Cooper is unskilled too. “Point taken,” he dumbly replied.

This is how voters get grossly misled within the clown show known as a discourse. We should have nipped it in the bud, but our leaders lack the skill.

By Thursday night, when Cooper failed, the misstatements were being spread all around—and by now, as they always do, they carried a partisan message.


  1. citizens arrest!! citizens arrest!!

  2. Bob is correct, but from a political POV I don't see how calling it a "penalty" helps the Dems. The mandate may not result in the biggest tax increase, depending on how one counts, but I think it's the biggest dollar penalty.

    Does it sound better to say that Obamacare inflicts the biggest penalty ever against the American people?

    1. "Depending on how one counts"? Balderdash. The only people who would ever have to pay the Thing (whatever you want to ultimately call it) are those who had no health insurance through their employer, had the opportunity to buy it on the exchanges (often with whopping subsidy), and still refused. There's no way that few people could possibly be on the hook for that many total dollars.

      Only people who characterize insurance premiums as taxes, which no one of sound mind ever would, can square this circle. Which is why nimrods like Parker and Erick Erickson are doing their damnedest to try.

  3. O'Donnell (as perhaps one or two others) has been gloating lately and claims he's been saying for ages that national healthcare could only pass as a tax because that's how SS and MC were geared, as a tax, rather than messing with the commerce clause.

    Is this another reason to see Obama as the sly rabbit once again outwitting the Republican fox and bear?

    And why couldn't Br'er Roberts find a reason in Citizens United to let us regulate campaign spending jes' a li'l?

    If he did join the libs to preserve court integrity, how often does he have to do that? Once every seven year itch?

  4. This was fascinating, and no, I hadn't seen this sort detail on Justice Robert's opinion.

    Thanks very much!