Friday, June 29, 2012
When is a Tax not a Tax? John Roberts on the Tax Issue
As I suggested previously, if the health insurance mandate is a tax, then it raises the issue of why the Supreme Court would have jurisdiction over the case, since the Anti-Injunction Act (AIA) precludes lawsuits against a tax before it has been collected. I've now read the opinions of Chief Justice Roberts on these matters (as well as the dissent). What I was able to get out of Roberts' discussion is this: for purposes of the AIA, the mandate is not a tax because Congress called it something else. For purposes of constitutionality, it's considered a tax, because it is indeed functionally a tax, never mind the labels.
I believe this is an accurate summary of his argument. Go ahead and try to explain why it really makes any sense. It strikes me as a rationalization designed to reach a particular desired outcome, rather than a logical argument that deduces consequences from basic premises. There's certainly no sense in it that a well-informed citizen can understand, and the difference between such a ruling and a mere arbitrary edict is difficult to see. Chief Justice Roberts may have given us a civics lesson in the start of his opinion, but his later words seem indistinguishable from bullshit, in the formal philosophical sense:
"For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose." (Prof. Harry Frankfurt)
This is another example of the PPACA as an exercise in utterly non-transparent, arbitrary government -- the rule of men, not law. Nancy Pelosi's paternalistic gibberish notwithstanding, the act is passed and yet we still don't know what is in it. We didn't even know until yesterday that the mandate is actually a tax, nor that it is also not a tax. It will get much worse.Under PPACA, the Secretary of HHS is granted enormous authority to determine policy, e.g. what insurance must cover. The IPAB also is given power to determine policy, e.g. the finances of Medicare and Medicaid. Unaccountable power, non-transparent regulations, convoluted law -- this is the PPACA.
Hence an exclusive Unforeseen Contingencies mid-year prediction: There will be more lawsuits over the constitutionality of the PPACA; there's too much in it that is unknown, unaccountable, non-transparent, convoluted, and arbitrary. Don't be surprised if SCOTUS sees further PPACA action.
Just as a reminder of how arrogant our would-be rulers can be, here's Nancy Pelosi's outrageous statement on the transparency of law: