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Pretzel logic reigns supreme on court

The 5-4 decision released yesterday by the Supreme Court on the Affordable Care Act would be comical if it didn’t have such far-reaching consequences. Here we have a majority of the supposedly preeminent minds in American jurisprudence using the most tortured logic imaginable to uphold the ACA as constitutional.

The whole thing hinges on this question: If you don’t buy health insurance, you will be required to pay an extra amount of money to the IRS; is that amount of money a “tax” or a “penalty”? The answer to that question affects two things:

  1. Whether the Anti-Injunction Act bars the suit, and
  2. Whether the Affordable Care Act is constitutional.

The Anti-Injunction Act says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person … so that those subject to a tax must first pay it and then sue for a refund.” So if the consequence of not purchasing health insurance is a tax, the suit is thrown out, and the court has no further comment on its merits. But if it’s a penalty, then the Anti-Injunction Act does not apply and the court can rule on the merits of the case.

However, when it comes to whether the ACA is constitutional, having a penalty for failure to purchase health insurance would make the Act unconstitutional because the Congress has no enumerated power to require individuals to purchase anything. But if it’s merely a tax, the Congress would have the power under their taxing authority to impose it (provided it’s not a “direct tax,” but that’s a subject for another time).

It would appear to any reasonable observer that there are only two possible outcomes: Either the consequence of failing to purchase health care is a “penalty” — in which case the Act is unconstitutional — or it’s a “tax” — in which case the suit is barred and there can be no ruling on its merits. The seeming nail in the coffin for the ACA is that fact that the Act itself calls the consequence a “penalty” in no uncertain terms.

But thanks to the ingenious invention of the majority of the court, the Government can have it both ways! Yes, remarkable as it may seem, the court found that the Act provides a “penalty” for purposes of the Anti-Injunction Act, but a “tax” for purposes of the Constitutional question.

…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. The Anti-Injunction Act therefore does not bar this suit. […]

The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, “[d]isregarding the designation of the exaction, and viewing its substance and application.”

So the “functional approach” is applied to the Constitutional question, but Congress’s “intent” is applied to the Anti-Injunction Act question. The logical gymnastics boggle the mind.

It only gets worse if you actually read the whole ruling (read it here). A plain reading of the Act makes it clear that the “shared responsibility payment” is a “penalty” by any definition, yet the majority of the court takes pains to try to paint it as a tax from a “functional” standpoint. But their explanation exceeds all limits of credulity. To quote the court’s dissenters, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” That amounts to the judicial branch imposing a tax where one did not previously exist. They conclude: “Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.”

Whether or not the next election results in a new president and/or Congressional majority that will repeal the health care act, the precedent set by the court in this case is troublesome. It appears that future unconstitutional acts passed by Congress will not be struck down by the Court when challenged, but rather rewritten by the Court and magically converted into constitutional acts. That prospect is truly frightening in its implications.

82 comments to Pretzel logic reigns supreme on court

  • AnneC

    Nice bit of mumbo-jumbo, but it STILL doesn’t tell us what my neighbor will have to PAY OUT OF HIS OWN pocket. How much should he be socking away for this government shake-down?

  • Nothing. Relax, take a pill. Change the Channel off of Fox and watch Discovery. You’ll be find and why is it when you get facts it’s mumbo-jumbo? Oh I guess it is to you.

  • David P. Jordan

    The worst part about ObamaCare is that those who think it will be so great, won’t see the error of their ways until it is too late. I suspect this reality (which a majority are aware) will reflect in the July jobs report, which comes out in early August.

  • point of order

    Fox News!Fox News!FOX NEWS!!! OH MY! They don’t bow to Obama. TURN THEM OFF!!!!

  • Fox News: They report…They deceive. BTW, they don’t cover any Democrat. As for health care, sure it isn’t the best and will need to be adjusted, but so did medicare and SS when they started. Republicans bitched then too.

  • AnneC

    You’re using Medicare and Social Security as examples of success? LOL!!! Kind of like saying the Peoria Civic Center is such a model of success that we need a taxpayer-funded museum to go with it!!!

    BTW—no cable/satellite TV here. In fact, haven’t turned on the TV in months.

  • SS as success? Tell that to the millions collecting it.

    Here is a good read. See if you can laugh this one off. http://www.classwarfareexists......-recovery/

  • And I never use SS and medicare as success points. (You twist things like Fox does, pretty good for a person who doesn’t watch TV) Just saying when they were enacted, Republicans acted like you are acting with health care. They bitched , whined and moaned. I would wonder how it would be if your Conservative court at reversed the health care plan? I mean, Before the judgement you all wanted to play fair and let the highest court decide. They did, you lost and now what? Sore losers?

  • AnneC

    Nope. I agree with the court. It’s a TAX. Biggest EVER. I just think it’s bad law. As a matter of fact, my husband & I will come out ahead if ObamaCare is not repealed. Right now, my husband is well paid. When he retires, in less than 2 years, our INCOME will drop considerably, making us eligible for nearly free healthcare insurance! You, and all the other worker bees will be subsidizing US. Thanks in advance for the free ride!

  • Hey anything to help. Somehow, by your posts, I knew you had yours.

  • David P. Jordan


    Social Security and Medicare were flawed Democrat ideas that most certainly attracted Republicsn alternatives. I believe Ronald Reagan’s takedown of Jimmy Carter in their famous October 1980 debate (“there you go again”) was provoked by this very issue. Carter was basically saying, “You opposed OUR idea, so you are mean, evil and heartless.”).

  • David Jordon: Obamacare as you all call it was a Republican idea. It is where Romeny drew is blueprint for his healthcare in MA when he was governor. So if it was a Republican idea, why the hate?

  • cotswold9

    No Republican idea comes out of Mass Legislature they( Democrats) are a supermajority in both houses and in Congressional races – To get anything thru Mass it must by definition be a Democrat idea with Democrat votes.

  • Dennis in Peoria

    No matter if it’s a State Assembly or U.S. Congress…no matter if the Republicans or the Democrats are in control…if the legislation is not their idea, not written by them, then they hate it, oppose it. Even if they secretly think it’s a good idea. The Democrats don’t want the GOP to take credit for any legislation, and vice-versa.

    That’s how bad politics has gotten since Bush, Jr. got selected President in 2000.

  • The health care law didn’t come from Mass. It was derived by Republicans way back when Clinton first took office and he and Hilary tried to get some health care passed. Remember how that was shot down?? Mitt took the idea and got it passed in Mass.

  • cotswold9

    President Obama did not mention in the 2009 State of the union that he used the idea of Mitt Romney from Mass to get the ball rolling on his plan. Democrat controlled House and Senate did not cite Gov Romney in the bill consideration. The idea must be coming from some where Prior to Mar 2010 when the bill passed and was signed by President Obama.

    No comments came to light until 2011 when Primary season was just starting to warm up.

  • See you aren’t reading. Mitt Romney never had an idea of his own ever. President Obama used the blueprint plan from the old Republican idea. Anyway you look at it, it was a Republican idea in the beginning.

  • cotswold9

    So then we must assume that the Democrat legislature of Mass. came up with the idea since Mitt Romney is clueless. There are not enough Republicans in MA to get any idea past a phone booth meeting of all Republicans.

    Bill Clinton had the same idea back in 1993 that might have influenced a handful of idea folks who might have been associated with a Republican style of think tank, but since it was handily destroyed by the Congress – who in there right mind would revive it and sell it as there own.

    Please show us the legislation that Republicans created in Mass or any other state,that got past the pencil on paper stage.

    Please don’t cite the Heritage Foundation – that dog won’t hunt. Citing Daily Kos is equally suspect. Bill Kristol memos on how to defeat Clinton Care in 1993 is just a guide to counter the points of the Hillary plan, not legislation to pass before an elected body.

  • Good God you still don’t understand. Republicans created this plan and offered it up for the entire nation. At that time Mass had nothing to do with it. Only when Mitt became governor of Mass did he pull out the blueprint and had it passed. No wonder there is no telling a Republican anything. Their followers can’t seem to think for themselves.

  • BTW this happened during the early years of the Clinton Admin. When the Right finally shot down any hope of any healthcare, they dropped the whole issue.

  • cotswold9

    Please show us the link where some nameless republican person, place, or thing created a health insurance plan and introduced it to the legislature or some state or national body. (Republicans created this plan and offered it up for the entire nation)
    Please show us the blueprint.( when Mitt became governor of Mass did he pull out the blueprint)
    Democrat legislature with a 2/3 supermajority passed it without any influence or alter it in anyway. ( had it passed)

    (The Right finally shot down any hope of any healthcare, they dropped the whole issue.) The Democrats dropped the issue – it was theirs to begin with. Republicans were against it and did not need to keep it on the back burner for 18 years.

  • You just can’t fix stupid. Surf your own links.

  • Martin Palmer

    “You just can’t fix stupid”
    That is true, but we can vote them out.

  • cotswold9




    Romney vetoes 8 parts of bill and is overridden by Democrats:

    Romney bill submitted to legislature 90 pages long
    In December 2008, the Institute for America’s Future together with the chairman of the Ways and Means Health Subcommittee Pete Stark launched a proposal from Jacob Hacker who is co-director of the U.C. Berkeley School of Law Center on Health that in essence said that the government should offer a public health insurance plan to compete on a level playing field with private insurance plans.[43] This was said to be the basis of the Obama/Biden plan.

  • cotswold9

    Nixon declares health care in 1974 State of Union :’We will establish a new system that makes high-quality health care available to every American in a dignified manner and at a price he can afford.’

  • Mrsjymm

    I don’t get why people who admit they will be better off, getting near-to-free healthcare when their income will drop would be flippant? Would you still be obnoxious about the “free ride” if you had thousands of dollars of hospital bills after a heart attack? or cancer treatment? Truth be told, everyone, our whole society, will benefit from everyone being able to have health care. No one ever wants to be in a position where they are fighting for their life and wondering how the bills will get paid, filing for bankruptcy or declining treatment for lack of funds or insurance. We should all recognize it’s not a spoiled act to help all people have medical care. Why can’t we do for eachother what we would want for ourselves?

  • cotswold9

    Unfortunately when every person in the USA has an insurance card – this will not mean everyone can get healthcare. Doctor shortages today will be exacerbated by lack of doctors to see patients or they will not be able to afford the insurance payment the government will require.

    Doctors will have to choose to leave the profession or leave prospective customers to find other service providers

  • checking for details

    what is this free health care you speak of? My understanding is that SOMEONE has to pay for it. Perhaps you feel it shouldn’t be you and it should be “others”. Yet the “others” who will have to foot the bill are not allowed to feel that perhaps they should be allowed to keep the money that they work to earn. Perhaps I feel that you live in a better house than I do. Perhaps I should come over and throw you out so that I can live there for free. The abuse and fraud in the current public system is atronomical, the state is bankrupt. We have too many people living by the “free” philosophy. Free food, free electricity, and heat, free health care, free to pop out as many babies as they want, free book bags. Unfortuately the only free thing that they seem to ignore are the bowls of “free condoms” at the health department, probation, planned parenthood and the like.

  • cttsp5

    Why is it the wealthy begrudge the middle WORKING class of better health care or free as some people call it. You’re darn right we are entitled to it. We actually worked a real job, no handouts for us. No free lunch, link card, free breakfast for our kids, free schooling, etc. None of us lived off the government for free generation after generation. We actually went out and worked. We didn’t have family wealth to help us through, we actually went out and worked. The lazy poor who have been on the medical card for generation after generation is excused and allowed and they get it for free for numerous years, but the ones who have actually worked all their life are begrudged. Something wrong with this scenario. If I have an illness I would like to know that there isn’t a cap on dialysis or chemo and can get it if I need it.

  • Mrsjymm

    No where in my comment did I make a statement that healthcare would be free.
    I also was not making any statement on abuse of welfare, government corruption, or class warfare. I’m merely wondering why we can’t all be excellent to eachother?
    However, I did make a reference to AnneC’s statement about getting a “free ride.”

    Please reread and use critical thinking.

  • cotswold9

    This George Kaiser Family Foundation: