[doggin94it]

Another smackdown of Ginsburg:

[QUOTE]6In an attempt to recast the individual mandate as a regulation of commercial activity, JUSTICE GINSBURG suggests that “[a]n individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self-insurance.” Post, at 26. But “self-insurance” is, in this context, nothing more than a description of the failure to purchase insurance. Individuals are no more “activ[e] in the self-insurance market” when they fail to purchase insurance, ibid., than they are active in the “rest” market when doing nothing.[/QUOTE][QUOTE][The Government repeats the phrase “active in the market
for health care” throughout its brief, see id., at 7, 18, 34, 50, [B]but that concept has no constitutional significance.An individual who bought a car two years ago and may buy another in the future is not “active in the car market” in any pertinent sense.[/B] The phrase “active in the market” cannot obscure the fact that most of those regulated bythe individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to “regulate the uninsured as a class.”[/QUOTE][QUOTE]Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. [B]The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.[/B] Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.[/QUOTE][B]CONCLUSION: Commerce Clause is limited to activity. It cannot be used to mandate a purchase.[/B]


[QUOTE]The Government next contends that Congress has the power under the Necessary and Proper Clause to enact the individual mandate. . . .

Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. . . .The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.[/QUOTE][B]Now for the other shoe to drop:

[/B][QUOTE]That is not the end of the matter. Because the Commerce
Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.”

The Government’s tax power argument asks us to view the statute differently than we did in considering its commerce power theory. In making its Commerce Clause argument, the Government defended the mandate as aregulation requiring individuals to purchase health insurance. The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.[/QUOTE][B]The rule of construction that will end up being dispositive, if I'm reading the tea leaves correctly:

[/B][QUOTE]The text of a statute can sometimes have more than one possible meaning. [B]To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park.[/B] [B]And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.[/B] Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”[/QUOTE][QUOTE]The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.[/QUOTE][QUOTE]Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. [/QUOTE][QUOTE]The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one . . . Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.[/QUOTE][B]So much for "activist" judges. If I remember back to Roberts' confirmation, one of his key selling points on the right was his philosophical deference to the legislative and executive branches. Anyone want a do-over?

[/B][QUOTE]The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment,
its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax:it produces at least some revenue for the Government.[/QUOTE][QUOTE]
It is of course true that the Act describes the payment asa “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewedas an exercise of Congress’s taxing power. [B]It is up to Congress
whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question.[/B] That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.

Our precedent reflects this: In 1922, we decided two challenges to the “Child Labor Tax” on the same day. [B]In the first, we held that a suit to enjoin collection of the so called tax was barred by the Anti-Injunction Act. [/B]George, 259 U. S., at 20. Congress knew that suits to obstruct taxes had to await payment under the Anti-InjunctionAct; [B]Congress called the child labor tax a tax; Congress therefore intended the Anti-Injunction Act to apply.[/B] In the second case, however, we held that the same exaction, although labeled a tax, was not in fact authorized by Congress’s taxing power. Drexel Furniture, 259 U. S., at 38. That constitutional question was not controlled by Congress’s choice of label.

[B]We have similarly held that exactions not labeled taxes nonetheless were authorized by Congress’s power to tax.[/B] In the License Tax Cases, for example, we held that federal licenses to sell liquor and lottery tickets—for which the licensee had to pay a fee—could be sustained as exercises of the taxing power. 5 Wall., at 471. And in New York v. United States we upheld as a tax a “surcharge” on out-of-state nuclear waste shipments, a portion of which was paid to the Federal Treasury. 505 U. S., at 171. [B]We thus ask whether the shared responsibility payment falls within Congress’s taxing power, “[d]isregarding the designation of the exaction, and viewing its substance and application.” [/B]United States v. Constantine, 296 U. S. 287, 294 (1935); cf. Quill Corp. v. North Dakota, 504 U. S. 298, 310 (1992) (“[B][M]agic words or labels” should not “disable an otherwise constitutional levy” ([/B]internal quotation marks omitted)); Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 363 (1941) ([B]“In passing on the constitutionality of a tax law, we are concerned only with its practical operation,not its definition or the precise form of descriptive words which may be applied to it”[/B] (internal quotation marks omitted)) . . .[/QUOTE]Solid precedent, and seems to be a sound principle. The constitutionality of a congressional act should depend on its substance, not what Congress calls it.

[QUOTE][B]None of this is to say that the payment is not intended to affect individual conduct.[/B] Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.[/QUOTE][QUOTE]In distinguishing penalties from taxes, this Court has explained that “[B]if the concept of penalty means anything,it means punishment for an unlawful act or omission[/B].” . . . While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to doso is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.[/QUOTE][QUOTE]The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not “frame” it as such. Post, at 17. [U][B]In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels.[/B][/U][/QUOTE][QUOTE]There may, however, be a more fundamental objection to a tax on those who lack health insurance. [B]Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.[/B][/QUOTE]Well, yeah

[QUOTE]Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. [B]The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.[/B][/QUOTE]Ouch

[QUOTE]Second, Congress’s ability to use its taxing power to influence conduct is not without limits. [B]A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.[/B] . . . More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. . . . We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’”

We have already explained that the shared responsibility payment’s practical characteristics pass muster as a tax under our narrowest interpretations of the taxing power. . . . [B]Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’”[/B][/QUOTE][QUOTE]Third, although the breadth of Congress’s power to taxis greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. . . .

By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe
burden that taxation—especially taxation motivated by a regulatory purpose—can impose.
[/QUOTE]That's all on the Mandate from Roberts

Now, onto Medicaid expansion, [B]which was ruled unconstitutional[/B]. On the argument that the expansion is coercive, because it withdraws other funds if states do not expand medicaid:

[QUOTE]Given the nature of the threat and the programs at issue here, we must agree. We have upheld Congress’s authority to condition the receipt of funds on the States’ complying with restrictions on the use of those funds, because that is the means by which Congress ensures that the funds are spent according to its view of the “general Welfare.” Conditions that do not here govern the use of the funds, however, cannot be justified on that basis. [B]When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes.[/B][/QUOTE]Having ruled it unconstitutional, the Court turns to severability:

[QUOTE]The question here is whether Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the new Medicaid expansion. Unless it is “evident” that the answer is no, we must leave the rest of the Act intact.

We are confident that Congress would have wanted to preserve the rest of the Act. . . .[/QUOTE]