Think Freely Media presents Common Sense with Paul Jacob

With the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, the Patient Protection and Affordable Care Act has achieved its first milestone: The repudiation of logic, the Orwellian assertion that A both is and is not A.

The reform package, popularly known as Obamacare, requires that individuals buy medical insurance. If you fail to do so, the law imposes a fine.Justice Roberts

The zillion page legislation refers to this financial penalty 18 times. It never refers to a tax.

Its principal booster, President Obama, repeatedly insisted it wasn’t a tax. And as Justice Antonin Scalia wrote in his dissent, “We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty.”

But Chief Justice John Roberts, a George W. Bush-nominee, joined the four liberal justices to declare that what was not a tax, when proposed and passed, now is a tax — so that it could be declared constitutional under Congress’s taxing power. Roberts explains:

Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act.

Only were Obamacare not a tax could it be litigated at this time under the Anti-Injunction Act. Accordingly, the majority says it is not a tax. But it can only be ruled constitutional if it is a tax. So, the High Court calls it a tax and not a tax at the same time.

The dissent called this “remarkable.” Stronger words spring to mind.

This is Common Sense. I’m Paul Jacob.

By: Redactor


  1. MoreFreedom says:

    Jacob points out an obvious problem with the ruling. If it’s not written as a tax, then the law should fall, and then Congress can rewrite the legislation as a tax.

    This is judicial activism at its worst. It’s saying a law is something that it wasn’t written to be. Unfortunately, I’m afraid the justices (abdicating their responsibility) will only do this if the law is a statist expansion of government. And they’d reject the law if it was a restriction on government.

  2. Paulina West says:

    But was the mandate under the Commerce Clause ruled unconstitutional? How can a judge rewrite the language of the law and then pass it? Since the House did not write this as a tax, and they had the authority to do so, then the judge has to be impeached. That is what the founders intended. If we continue to believe in the separation of powers, nitwits cannot take it away from us. The Legislature can impeach judges who usurp a role that is not theirs legitimately.

  3. Drik says:

    The only way for their determination to be consistent would be for them to declare that it IS a tax and then refuse to hear it until AFTER it had been executed.

    They have violated their oath and rewritten the legislation to make it something it is not, and then been inconsistent in their judicial determination of it.

    Quid pro quo since the Congress had also written legislation which they have no constitutional authority to do.

    Now to cap it, all we would need would be a president who would decide to apply the legislation as his whim decreed rather than as it was written.

    Now where will we find one of those?

    Going to continue to do my coal-canary bit and chirp that it is moot since we cannot and will not be able to afford (aka fund) this anyway and it will just accelerate the process where the economy collapses. And on the way, we go from the best health care in the world to having those that are still paying, paying exorbitant prices for marginal care, the same care that the people that are NOT paying will be getting. Except for the politicians.

  4. John T. Kennedy says:

    There’s nothing in the Constitution that says legislators can’t lie to voters about the nature of legislation.

  5. Paul Jacob says:

    Pols can lie, sure. But the court should go by the written legislation regardless of the lies. It does not say it is a tax; it says it is a penalty.

  6. JFB says:

    The federal government has been in health care since Medicare and Medicaid. Both sides of the aisle have expressed a desire to reform, increase, the governmental incursion into the health services sector.
    With this additional entitlement, and the additional costs it must bring, there ony rational response is from Standard & Poors, with a quick additional downgrade.

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