dagblog - Comments for "How Chief Justice Rube Goldberg Saved the Individual Mandate"

I think much has been written

Bruce Levine — Sat, 30 Jun 2012 13:04:25 +0000

In reply to How Chief Justice Rube Goldberg Saved the Individual Mandate

I think much has been written about this decision, and many of us have offered parades of horribles about what the decision could mean.

Yes, I think that's basically

Dan Kervick — Fri, 29 Jun 2012 18:47:25 +0000

In reply to I presume that Epstein

Yes, I think that's basically right.

I presume that Epstein

Michael Wolraich — Fri, 29 Jun 2012 18:41:00 +0000

In reply to I agree with Epstein when he

I presume that Epstein believes Roberts should have ruled against the act, but he doesn't try to make that case in this article. His point is simply that it is inconsistent to deny the government the power to regulate commerce while permitting it to use the power of taxation to achieve the same end. In other words, Roberts should have permitted both taxation and regulation or neither--which I think is not far off from your own thesis.

I'm no legal scholar, but Epstein's argument seems plausible to me. If the government can assess a tax "penalty" on individuals who violate its rules in their commercial transactions, is that not commercial regulation by another name?

Note that Epstein implicitly

Dan Kervick — Fri, 29 Jun 2012 18:07:57 +0000

In reply to I agree with Epstein when he

Note that Epstein implicitly asserts that transfer payments are unconstitutional. He thinks the redistribution of personal income is not a public benefit. I would argue that our society as a whole would benefit socially, morally and economically from a more equal distribution of income.

I agree with Epstein when he

Dan Kervick — Fri, 29 Jun 2012 18:03:57 +0000

In reply to An interesting critical

I agree with Epstein when he says:

There is no practical difference between ordering an action, and taxing or fining people who don’t do that same thing. If the Constitution limits direct federal powers, it must also limit Congress’s indirect power of taxation.

But as a conservative, Epstein argues from the tight connection between regulation and taxation, and the conservatives' position on commercial regulation, to more stringent limits on taxation. I would go the other way and argue instead that Roberts should have recognized that the broad power to tax, coupled with the tight connection between taxation and regulation, naturally entails a broad power to regulate.

Roberts decision seems transparently political, shallow and unprincipled to me.

He is totally wrong. The

jollyroger — Fri, 29 Jun 2012 18:03:47 +0000

In reply to An interesting critical

He is totally wrong. The power to tax is the power to destroy, and we like it that way...(except for the weed stamps). Any economic endeavour can pencil out profitable or not depending on tax policy.

Interesting, indeed.

Peter Schwartz — Fri, 29 Jun 2012 17:57:39 +0000

In reply to An interesting critical

Interesting, indeed.

An interesting critical

Michael Wolraich — Fri, 29 Jun 2012 17:45:01 +0000

In reply to How Chief Justice Rube Goldberg Saved the Individual Mandate

An interesting critical analysis by (conservative) legal scholar Richard Epstein:

He will no doubt attract praise in some quarters for splitting this baby. But his decision is wrong. As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice’s position in such an important case is confused at its core.

...

Chief Justice Roberts has ignored this fundamental principle: If direct regulation is beyond the scope of the Commerce Clause (as he held), then taxation as an indirect route to the same regulation should be off limits as well (as he failed to hold). This is a baby that should not be split. His attempt to do so undermines his ruling, the court and the Constitution.

You are 100% correct. From

Peter Schwartz — Fri, 29 Jun 2012 17:18:25 +0000

In reply to Perhaps Roberts understood

You are 100% correct. From Perhaps to Peace.

There are more cost controls in this bill than it's given credit for.

Cost controls for the cost of insurance and for the cost of medical care.

Perhaps Roberts understood

tmccarthy0 — Fri, 29 Jun 2012 16:24:16 +0000

In reply to Perhaps Roberts understood

Perhaps Roberts understood the liberal mind and realized they would turn a win by Obama into a loss as everyone rehashes ACA and compares it to every other option that isn't available.

Yep.