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Thursday, February 16, 2012

Is it okay for Obama to tell voters that Obamacare's individual mandate is not a tax, while telling the federal courts that it is?

I have been following the ongoing litigation about the constitutionality of Obamacare, and I have very strong opinions about it. But I haven't written much about it here because there are so very many other conservative and libertarian law-bloggers who are doing such a good job — including many of them who are directly involved in the litigation — that I haven't felt I had anything novel or useful to add. However, I was much struck by the concluding paragraphs of Wisconsin conlaw professor Ann Althouse's post today entitled "The Obama Administration clearly states that the individual mandate is not a tax" (all emphasis hers):

Well, I suppose it depends on what the meaning of the word "tax" is. It's one thing for the purpose of political argument: Democrats in Congress didn't want to call it a tax when they were jamming it through, and Obama doesn't want to call it a tax now as he's promoting a budget with no new taxes for those making less than $250,000 a year. But for the purposes of legal argument, you might want to characterize it as a tax. The serious question is whether the Supreme Court will accept that characterization for the purpose of upholding the law, even though for political purposes the word was not — and is not — used.

And the answer to that question depends on whether the Justices think that analysis of the political dynamics matters in the interpretation of the scope of Congress's enumerated powers. Whatever the vigor of the Court's role here — and obviously much is left to Congress's political will — it is crucial for the people — exercising their political pressure on the Congress that works its political will — to see what is happening. Even in the thrall of judicial restraint, the Court should reject an argument based fooling the people about what Congress is doing. The people are especially vigilant about new taxes, so denying that something is a tax is an important maneuver in the political arena. If that move is made to ward off public outrage, it should not be easy to turn around win the favor of judges by calling it what you did not dare tell the people it was.

As I said in a comment to her post (reprinted here without blockquoting, slightly edited and expanded here for clarity):

Every statute passed by Congress and signed by the POTUS (or passed over his veto) must be justifiable by some provision of the United States Constitution. That is essential to the maintenance of our Republic as a government of limited, enumerated powers — a government subordinate to, not the dictator over, its people.

Flacks for the Obama Administration, including many lefty lawyers and law professors, would love to persuade you, the people, that they're entitled to rely on one part of the Constitution, the taxing and spending clause, as a justification for Obamacare while they're arguing in the federal courts over its constitutionality, and yet to deny elsewhere that Obamacare involves any "taxes."

"This is complicated lawyer-stuff that only us high priests of penumbras and the living, breathing Constitution can possibly comprehend," they suggest. "Go back to your circuses — look, look, they're handing out more free bread! FREE BREAD!"

(Or maybe just free condoms and birth control pills.)

Democrats are the masters of cognitive dissonance. That's not in dispute and won't change. What might change — as between November 2008 and November 2012 — is the number of rubes who remain enthralled by their shameless hoaxes.

Posted by Beldar at 05:41 PM in Congress, Law (2012), Obama, Politics (2012), SCOTUS & federal courts | Permalink


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(1) Gregory Koster made the following comment | Feb 17, 2012 12:15:27 AM | Permalink

Dear Mr. Dyer: Nope. I agree with you that the shameless "it's not a tax" bunkum used in Congress versus, "of course it's a tax" malarkey going up before the courts is bad for democracy. This is not a universal view, as in Mencken's dictum that "Democracy does not work, but it is a capital anesthetic." But slipperiness not a fault solely of The One and his gang. No, this is lawyering in general. That's the meat of advocacy, bamboozling the recipient of your argument, gingerly when said target can bite back (e.g. judges, bureaucrats, Congressional panels etc.) contemptuously when they are hapless (juries, the unconnected/poor/powerless citizenry.) The American democracy has survived various levels of bamboozling for a long time, but at least in part because a) there wasn't enough government to be a mortal danger to the citizenry and b) the citizenry's valuation of the desirability of freedom has shrunk dramatically. The One's latest gimmick in re "Duh Cat'lics gotta provide morning after pills as parta Obamacare," isn't new. It's just contempt for the fools on the Catholic left who are now expendable. I will bet that The One could pull an opinion from the Office of Legal Counsel at the Justice Department that will justify this policy---just as Geo. W used Jay Bybee and John Yoo to justify what wasn't called torture. Such casuistry is exasperating in the extreme and prompts a reflexive cry of "Bunk!" from me, thereby ensuring the hearty contempt of law professors everywhere. Where would they be if the idea of "Law" as intellectually respectable received the raucous jeering it badly needs?

Sincerely yours,
Gregory Koster

(2) JeffC made the following comment | Feb 17, 2012 10:25:09 AM | Permalink

I am curious if there is another federal "tax" that you can completely avoid paying in its entirety because you have done something else ... I can't think of an example ...
the mortgage deduction reduces taxable income not income taxes directly ... same for state taxes ...

(3) ColoComment made the following comment | Feb 18, 2012 12:15:52 PM | Permalink

Is my recollection faulty that one of the reasons suggested at the time for why this coercive payment was characterized as a penalty rather than a tax (in addition to the political impracticality), was that it did not comply with existing Constitutional limitations regarding taxation, i.e., the original direct tax requirement(s) of apportionment, etc., nor the amendatory provisions regarding taxation of income?

PS: "bamboozle" and "bunkum" are such wonderful Mencken-era words!

(4) DRJ made the following comment | Feb 19, 2012 12:37:52 PM | Permalink


"Democrats are the masters of cognitive dissonance. That's not in dispute and won't change. What might change — as between November 2008 and November 2012 — is the number of rubes who remain enthralled by their shameless hoaxes."

I can't bring myself to agree that half of Americans are rubes. I admit there were times in my early legal career -- back when I tried a few cases and sat on a few juries -- that I toyed with the idea people are dumb, hicks, or hopelessly naive. But over time I realized I was the one who had it wrong: People factor a lot of information into their decisions, and most of those decisions are made for good reasons.

I've decided Americans are naturally hopeful and positive, not cynical, and sometimes we get scammed by people who take advantage of our positive outlook. However, woe to those people when we see what they really are. It's impossible to win us back when that happens.

(5) Beldar made the following comment | Feb 19, 2012 2:08:32 PM | Permalink

DRJ, I believe in small-d democracy and in juries, and I agree with much of what you just said. I believe in democracy and juries despite the frequency with which they misfire; they're still the least worst of alternatives.

However, I think progressives, across the board, are guilty of self-deception to some extent, else they wouldn't be putting their trust in princes.

And I think that in 2008, in particular and to a degree unique thus far in American history, they put their trust in a prince with no pedigree, a callow and egotistical pretender who'd never before accomplished anything of a scope or character as to reveal any particular fitness to become POTUS. He'd never been very successful as a lawyer or as a scholar/teacher or as a legislator, never in business, never as any sort of executive (unless you count his one-year star turn as first-among-equals in the Animal Farm of the Harvard Law Review) — never as anything. To believe he would become a capable and competent president, one had to be a rube, someone taken in by his deception and empty promises. To remain a true believer now, one has to be so partisan that objective facts, and casually broken solemn promises (even promises made not to please all Americans, but only to please fellow Lefties, e.g., re closing Guantanamo), no longer matter.

I'm sure you saw the interchange this week on Capitol Hill between Treasury Secretary Tim Geitner and House Budget Committee Chairman Paul Ryan. Geitner admits that we're but a handful of years away from fiscal collapse — not a recession, not hard times, but absolute and apocalyptic collapse, a genuine and permanent default of the United States government that can't be cured by any tax increase, even one that confiscated all the wealth of the rich. And yet he can say, with a straight face before going back to his office at the Treasury Department, that the Dems don't have any plan to deal with that impending collapse, but they still don't like Chairman Ryan's plan.

In the face of that kind of startling (but truthful) concession, anyone who can vote to return that Administration to office in January 2013 is, I submit, a rube by definition. And indeed, the moral culpability of those voters is worse now because not only does Obama lack a demonstrated history of successful performance in any office, he now has a 3+ year demonstrated history of galactic incompetence in the one he now holds.

I'm not claiming that they're "bad Americans" or "traitors" or anything like that. But to believe — in the face of all the contrary evidence — that Obama is capable of governing the country with even a minimally acceptable degree of competence requires that one be self-deluded at this point. "Rube" is exactly the word I mean for that. I think you and I agree that it is a curable condition; enough Americans cured themselves of it in 1980, for example, to oust a similarly disastrous incumbent, Jimmy Carter, even though many of them were quite fearful of the GOP alternative.

(6) DRJ made the following comment | Feb 19, 2012 3:31:07 PM | Permalink

I agree Democrats advocate delusional policies and I also acknowledge some people have embraced those policies knowing they won't work. However, I think most people embrace Democratic policies because they've been educated to believe in them, plus they don't have a grounding in history and economics that would enable them to realize the problems presented by those policies. Finally, the daily media reinforces these beliefs, so it takes extreme situations for people to overcome what they've been taught and what they hear each day.

Frankly, that's why I've always welcomed Obama's Presidency. America needed a wake-up call to stop our slide into socialism, and we got it. Now it's up to Americans to decide whether they want to wake up, or to instead roll over and go back to sleep.

(7) DRJ made the following comment | Feb 19, 2012 3:33:55 PM | Permalink

I also acknowledge some people who will continue to support Democratic policies and will never realize they can't work. I just don't think this describes half of America.

(8) Beldar made the following comment | Feb 19, 2012 6:54:55 PM | Permalink

You speak the words of the better angels of our shared nature, my friend.

(9) DRJ made the following comment | Feb 21, 2012 9:10:27 PM | Permalink

To get back to the point of your post (and I apologize for veering off track), you asked whether it's okay for Obama to tell voters that Obamacare's individual mandate is not a tax, while telling the federal courts that it is. It depends.

I agree with Gregory Koster that this is a very lawyer-like approach because, in essence, Obama is simultaneously arguing both sides but he expects us not to notice or care. This is offensive because it's hypocritical, plus it illustrates Obama isn't taking a position he believes in -- he's simply willing to use any means to reach a desired end.

But from a liberal standpoint, this is an allowed and even a desirable tactic. First, it's a legal maneuver and resorting to the courts is the most dependable ammunition in the liberal arsenal. Second, liberals view this struggle as a political war with conservatives, and it's one of the few wars liberals are willing to do anything to win. As the liberal playbook Alinsky's Rules of Radicals states: "The third rule of ethics of means and ends is that in war the end justifies almost any means ..."

(10) DRJ made the following comment | Feb 21, 2012 9:27:31 PM | Permalink

An aside to Gregory Koster: IMO good lawyers don't argue both sides of the same issue at the same time, although they may argue alternatives. For instance, a lawyer may argue that "If you accept A, then B" and also argue that "If you don't accept A, then C." To me, that isn't hypocritical or duplicitous. It's simply recognizing that not everyone will agree with a certain set of facts or assumptions ("A") so, in that case, there is another way to reach the same result.

However, Obama isn't arguing in the alternative. Instead, he's simultaneously arguing in the political arena that ObamaCare is not a tax -- a position he and other Democrats consistently took during passage of ObamaCare, because they had to say this to get enough votes -- while arguing in a legal forum that it is a tax. Sometimes trickery works in the political and the legal arenas, but IMO it isn't what good lawyers do.

(11) Neo made the following comment | Feb 23, 2012 11:51:12 AM | Permalink

The Obama Administration hopes the SCOTUS will think of it as a tax long enough to get it tossed as having not rippen.

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