The Decision in NFIB v. Sebelius

[Tom Servo]

No one can claim that that sequence satisfies the spirit of Article 1 Section 7.

Least of all a guy as smart as Justice Roberts. I'm telling you guys, he knew exactly what he was doing here, and this decision is only tangentially about the constitutionality of a law requiring health insurance.

He was walking a similar political minefield as a previous Justice by the same last name, and he did it quite deftly. As Al mentioned, he drew a line at Wickard, and he's left the primary matter open to future challenge in both the legislative and judicial branches.

I really do picture him chortling into his sleeve about this one.

 

[tyme]

I don't think he's that clever, and I don't think he would want to set up another challenge that would result in the law being struck down on easily repairable procedural grounds. Think about what happened after Lopez. Congress re-passed the Gun Free School Zones Act with boilerplate interstate commerce language.

Insiders claim he was worried about the consequences of striking down Obama's signature legislation. To strike down the law after another challenge on the basis that it originated in the wrong house would be even worse than striking it down last month on substantive grounds.

It would create chaos. Every other revenue law would have its legislative history checked, and would be challenged, and struck down by the courts, if found to have been gutted and re-purposed by the senate.

Any laws struck down would be re-passed by the next sympathetic Congress and President.

It would be a hollow victory. The Roberts court would be viewed as both vindictive (striking down Obama's signature legislation) and wasting everyone's time.

 

[raimius]

Is there a meaningful difference between that, and the concept of tax credits? It seems to me like it's a semantic difference with the same result.

Yes, there is. A tax is very different than a tax break. Tax credits are discounts/subsidies. The penalty/tax is not a discount.

 

[zukiphile]

Yes, there is. A tax is very different than a tax break. Tax credits are discounts/subsidies. The penalty/tax is not a discount.

If your entire income is taxed at 100% and the only way to retain your income is to conform to a list of government mandates in order to have the benefit of a deduction, discount or subsidy, the mandated behavior is just as effectively enforced. Both involve use of tax to compel or effectively prohibit behavior.

 

[raimius]

There is a difference between discounting to encourage behavior and penalizing to compel it. For some people, the amounts will end up being similar, but the legal reasoning and theory that they operate under are very different.