Bench Memos

Opportunism, Equivocations, and Briar Patches

One reason never to disagree with Ramesh Ponnuru is that he is so very good at finding the weakest point in one’s argument.  So I was not really surprised when he turned the tables on me in the wee hours of the morning by suggesting I may have committed the fallacy of the false dilemma in my rather explosive final sentence in yesterday’s post.  That sentence reads: “The intensity, passion, and frequent fallaciousness of the criticism aimed in his direction suggest that for many of his critics, it has always been the result that matters–the fall of ObamaCare–rather than the integrity of legal reasoning.”  It’s a good rule for blogging (defined as opining without benefit of editorial check) that any inflammatory sentence you hesitated over before clicking “publish” was probably better omitted.  That sentence was unjust to some people who have read Chief Justice Roberts closely and critically, and concluded that he is the one whose legal reasoning lacks integrity.  There have been some rather hasty commentators who have skipped the analysis and gone right to the character assassination, however–or the patently absurd praise of his “statesmanship.”

Talking this over with Bill Bennett on the radio was very illuminating.  In Bill’s conversation with Lee Casey, immediately following the one with me, he asked Casey if Roberts’ opinion (which Casey described as “shoddy reasoning”) could be the work of a judge devoted to getting it right on the law.  Casey strongly doubted it, and said he thought there was a “failure of nerve” on Roberts’ part that showed he couldn’t “keep to his convictions” when the going got rough.  (More below the fold for those still interested in all this . . .)


This strikes me as a strange theory.  If Jan Crawford’s story is credited, Roberts withstood entreaties from his colleagues for a solid month before the decision was handed down.  Is there an argument we’re thinking of now, that could have been used on him, that they didn’t think of?  I doubt it very much.  Legal arguments didn’t sway him.  The judicial equivalent of curses and imprecations didn’t move him (the dissenting opinion is much more excitable, Roberts’ more detached and cool).  If he thought he was avoiding a “political firestorm,” well, as Bill Bennett observed this morning, he got one anyway.  Was he too dumb to see that that would happen?  Did no one point this out to him?  And if you’re going to face a firestorm no matter what you do, it looks like you have even stronger reasons to follow your best judgment about doing the right thing.

Bill also asked Lee Casey if, now that the Court has declared the individual mandate a tax, it really is one after all.  Casey, having said at first that “there is no honest way to determine this to be a tax,” said that while it “either is or isn’t” a tax, it is “operationally” a tax now, thanks to Roberts.  This strikes me as inadvertently lending credence to Roberts’ point in his opinion, that if we get past labels and look at how the individual mandate functions, it can be seen to function–operationally, one might say–like a tax.  (See especially pp. 39-40 of the Court’s opinion.)

I had earlier said to Bill that when ObamaCare was being debated, Republicans were the ones saying repeatedly that the bill would raise taxes, and that among the ways it would do so was via the individual mandate.  Although the Democrats’ bill went through various versions, look at these examples from the Congressional Record of GOP House members and senators, in 2009 and 2010, who characterized the mandate that way in floor remarks:

Rep. Ted Poe (TX-2), 15 June 2009: “They also want to mandate coverage. That means that they’ll tax anyone who doesn’t buy insurance. Taxed if you do. Taxed if you don’t. It’s enough to make a person sick. That’s not a very healthy health care plan.”

Rep. Ed Whitfield (KY-1), 21 July 2009: “this bill provides for an additional tax on employers, a tax on individuals that do not go out and buy health insurance once the mandate goes into effect; and, still, the bill is not paid.”

Sen. Jon Kyl (AZ), 23 September 2009: “Everyone would be forced to buy these government-approved policies, whether or not they suit their needs or budget. Families would face tax penalties as high as $3,800 a year for not complying, singles $950.”

Rep. Joe Wilson (SC-2), 13 October 2009: “we need a set of reforms that will not hurt small businesses or families through tax penalties and unintelligible government mandates.”

Rep. Bill Posey (FL-15), 3 November 2009: “This bill taxes you if you have health insurance, it taxes you if you cannot afford to have health insurance, and it taxes you if you are a small business and you cannot afford to give health insurance to all of your employees.”

Sen. Lamar Alexander (TN), 5 November 2009: “The taxes include a tax on individuals who don’t buy government-approved health insurance.”

Sen. Jon Kyl (AZ), 3 August 2009: “Mr. President, I would just ask my colleague also if he is aware that there are some other proposals in these various Democratic bills. One is that all individuals would be required to buy medical insurance. There would be a penalty if they refused to do so that would go directly to their income tax . I believe the latest proposal I saw was 2.5 percent of your income tax . There would be a penalty imposed if you didn’t buy insurance.”

Sen. Alexander, same day, reply to Kyl: “The Senator makes a good point. If you are young and in America and you are forced into the health plan that is passing the House, your costs are going to go up, and that is a mandate or a tax that absolutely will go up. So the Senator is exactly right.”

Sen. Alexander, 10 November 2009: “What is interesting about that, when I mention that people who do not have insurance are going to pay higher taxes, there is, in this bill, what is called an ‘individual mandate .’’ Those who would pay the higher tax under the individual mandate—it would raise taxes by about $33 billion–are people who currently do not have health insurance coverage.”

Sen. Mitch McConnell (KY), 18 November 2009: “Then we have attacks on those who are uninsured, item 3 on the chart. They get taxed as well, a 2.5-percent income tax on the uninsured. That is on page 303 of this roughly 2,000-page bill.”

Rep. Todd Akin (MO-2), 20 January 2010: “Now, this raises kind of an interesting legal point, which is, if the government mandates that you have something or that you buy something, is that not really, essentially, a tax increase? When you mandate that somebody has to buy a particular product, is that something that the Federal Government should be doing in this particular area? Is it even constitutional? When it is a mandate, is it not just essentially a tax increase?”

Rep. Louie Gohmert (TX-1), 12 March 2010: “Under the bill, if they can’t afford the mandated type of insurance, then they are going to get hit with an additional tax, the very people that can’t afford it.”

Rep. Candice Miller (MI-10), 16 March 2010: “this bill includes an unconstitutional mandate requiring individuals to purchase government-approved health care or face taxes, fines, or even jail.”

Sen. Kay Bailey Hutchison (TX), 16 March 2010: “There are taxes on those who cannot afford insurance, the higher of $750 per individual or 2 percent of household income. That is the tax on people who do not purchase insurance.”

Rep. Charles Boustany (LA-7), 19 March 2010: “We are going to see new Medicare taxes, $210 billion in new Medicare taxes, new taxes on health care benefits, new taxes on employers, and an individual mandate , an individual mandate that is going to have the IRS in everybody’s business.”

Rep. Lynn Westmoreland (GA-3), 20 March 2010: “46 percent is the percentage of families making less than $66,150 who will be forced to pay the individual mandate tax, which, by the way, I believe is unconstitutional; 16,500 is the estimated number of IRS auditors, agents, and other employees that will be needed to collect the hundreds of billions of dollars in new taxes levied on the American people.”

Rep. Michael McCaul (TX-10), 22 March 2010: “This mandate will be enforced by a massive expansion of the IRS, which will fine those who do not comply two percent of their income.”

Sen. John McCain (AZ), 15 April 2010: “there is a new tax on individuals who don’t purchase government-approved health insurance.”

It’s hard, maybe impossible to find Democrats ‘fessing up to the “tax increase” charge that Republicans hurled at them.  (I found none.)  They denied the mandate was a tax, and the president denied the mandate was a tax.  Republicans said early and often that it was a tax, though for good measure they often also called it a “fine” and/or a “penalty” in the same breath.  They often said also–arguing in the alternative!–that if it wasn’t a tax, it was an unconstitutional over-reach under the commerce power.  Democrats eventually decided that it was better to take their chances with the Supreme Court on the commerce power than with the people at the polls on a tax increase.  But they didn’t change a thing about the way the mandate functions.  It is still collected from taxpayers by the IRS, and those who pay no taxes don’t have to pay the penalty.

The debate over ObamaCare was rife with opportunism and equivocations on both sides of the aisle.  (Good guys can be opportunistic equivocators too.)  The Democrats looked for any port in a storm as the bill proved to be unpopular and passage became more difficult.  Republicans looked for any argument that would box the Democrats into exclusively unpleasant choices.  Having said the mandate was a tax, they successfully cowed Democrats into saying “no, it’s not.”  That made it vulnerable to a commerce clause challenge, at which point it became advantageous for Republicans to press the interpretation that it is not a tax.  In briefs and arguments before the Court, the Obama DOJ determined that it was best to offer the Court both interpretations of the statute, one as primary, the other secondary.  Turns out that constitutionally, the Democrats were better off being thrown in the tax-increase briar patch.  Now that Chief Justice Roberts has said it is a tax, Republicans have gone back, with eager alacrity, to saying what they said before, that the mandate raises taxes.  And so the debate continues, in politics, where it has mostly belonged all along.

I’m not arguing that any of the floor statements above was or should have been probative of anything as far as the Supreme Court is concerned.  But while the mandate’s basic shape stood still, the debate furiously went on about what to call it.  Why is Chief Justice Roberts to be excoriated for paying less attention to the descriptors of the mandate than to a plausible reading of the substance and function of it?  I like the dissenters’ conclusions, but in a tough case with a tangled statutory history, I think Roberts’ view is not to be dismissed with epithets like “shoddy” or “failure of nerve.”


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