Friday, June 29, 2012

ReadThe Dissenting Opinion on Obamacare Ruling

Dissent scolds SCOTUS for “vast judicial overreaching

Wexaminer    It’s worth highlighting some key parts of the dissent that push back against that argument.As far as the text is concerned, it was a joint dissent from Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
The justices write:
“It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
“In answering that question we must, if ‘fairly possible,’ Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “ ‘ “[A]l- though this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” … In this case, there is simply no way, “without doing violence to the fair meaning of the words used”…to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.”
“In a few cases, this Court has held that a ‘tax’ imposed upon private conduct was so onerous as to be in effect a penalty. But we have never heldnever—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act ‘adopt[s] the criteria of wrongdoing’ and then imposes a monetary penalty as the ‘principal consequence on those who transgress its standard,’ it creates a regulatory penalty, not a tax.”
“That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate.”
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s ‘Revenue Provisions.’”
“For all these reasons, to say that the Individual Man- date merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.”
“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.”
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