A Look at Cheif J Roberts Opinion

It seems as if Chief Justice John Roberts is very hated. But I would like to withhold judgment on this until some further examination. I keep hearing the beginnings of some conspiracy theory on BOTH sides.

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

^{NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 2 (2012).}

^{I would hope I do not hear people saying “Obamacare is now law of the land.” meaning to say it should not be overturned or changed in any way. This decision was about what authority congress has.}

^Also...

“Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

^{NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 6 (2012).}

One of the initial replies I hear are since it was not framed as a tax, it should not have been considered a tax, even if it was argued by the Government as a tax in oral arguments. But do we really want the Supreme Court to rule like that? I would not want the U.S. Congress to frame something in constitutional terms, and not have the Supreme Court call it what it is and strike it down. I do not want the Congress to tie the hands of the supreme court by limiting their interruption of a law to the specific language used to frame the law.
The commerce clause is used too much. It becomes a source of limitless power. In my reading, this is an attempt to limit the commerce clause, to put boundaries on it. Had the ruling been 6-3 and Roberts went over to the other side in order to “right” the opinion he would be praised in an attempt to salvage some of the damage caused.
Now from the decision:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of com­mercial activity to be regulated. If the power to “regulate”something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to“coin Money,” in addition to the power to “regulate the Value thereof.” Id., cl. 5. And it gives Congress the power to “raise and support Armies” and to “provide and main­tain a Navy,” in addition to the power to “make Rules for the Government and Regulation of the land and naval Forces.” Id., cls. 12–14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unneces­sary. The language of the Constitution reflects the natu­ral understanding that the power to regulate assumes there is already something to be regulated. See Gibbons, 9 Wheat., at 188 (“[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said”).⁴

^{NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 19 (2012).}

^{But the use of taxation powers is used to encourage activity. If you do some activity you maybe given a tax credit or a deduction. And reducing or eliminating a credit or deduction discourages the activity. By increasing your income tax based on your lack of your health insurance, it would increase economic activity.}

^{Taxation can be used to pry open the can which would expose the contents to the commerce clause. While I would like to see the commerce clause limited more, to see taxation being used to start or encourage more activity THEN bring in the commerce clause for further regulation seems to go against the above principle.}

^{In time the use of taxation will bring out more commerce, which would then allow the commerce clause to be used.}

^{Where would tax laws be placed? Must the health care tax be placed into the tax code? (If it is not already is in there.) What I wonder do tax laws, creation and implementation, require certain procedures be followed?}

^{Maybe more importantly, could new tax laws be written to counteract the Health Care Tax without amending the Health Care Law?}

Chief Justice Roberts indicates he holds a principle value of preserving as much of the laws passed by congress. It seems to me he is also saying that this law maybe CRAP! But if Congress has the Constitutional authority, it can pass CRAP!

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. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. (Emphasis Added)

^{NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 32 (2012).}

What did this just say?
…Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.
What WHat WHAT! ..[G]oing without insurance [is] just another thing the Government taxes like buying gasoline or earning income.
What do you mean Like? Gasoline is a thing, earning an income is something, Not getting health insurance is NOT A THING! Is there ANYTHING taxed if I don't have it?
It is not sufficient to raise taxes if someone does not do something. In my opinion, raise everybody’s taxes, and give a Health Insurance Tax Credit (HITC) to those who have health insurance. Insurance companies will give out a proof of insurance forms as well as an electronic form which you would file with your taxes. Thus allowing you to claim you tax credit.
Show me precedent of taxing the lack of something. Where in the History of the United States has our lack of doing something or lack of having something results in us being taxed. Such an example should be used if it ever existed. To compare it like buying gasoline or earning an income, is the fitting of a square peg into a round hole.
As we have explained, “every reasonable construc­tion must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895).
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 32 (2012).
This process yields the essential feature of any tax:it produces at least some revenue for the Government. United States v. Kahriger, 345 U.S. 22, 28 n 4 (1953)
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 33(2012).

But look at this case a bit closer and it describes the collection of revenues (any amount even a tiny amount) from activities (those engaged in the activity of collecting wages).

Revenues come in from Taxes on activities or Taxes on ownership of property. (Which seems to say State Government but not the Federal?owns the land and you pay for the privilege of keeping it.) So I win a huge lottery one year, I pay my taxes for that year, and I pay two years in advance all my expenses. Now my post tax winnings (500 million) are in an account collecting no interest at all. I stay in my apartment whose rent is prepaid for the next two years, furnished with items purchased in the year of my good fortune. As a result I engage in no economic activities the next two years after my win. So could the federal Government tax my inactivity? It contains “the essential feature of any tax: it produces at least some revenue for the Government.” It would have a code in the IRS, and be collected by the IRS. When the federal government places a tax on the inactivity of a person or persons, no matter what they do not do, the federal government is stealing.

Congress encourages getting health insurance in the form of a deduction or a tax credit. Raise everyone's rate which would amount to penalty if you must, giving a tax credit or deduction for those with health insurance.

We have similarly held that exactions not labeled taxes nonetheless were authorized by Congress’s power to tax. 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.
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 34 (2012).
In these examples we have the purchase of licenses and nuclear waste shipments, all seem to be activities being taxed.

They reference Drexel Furniture and look at how it was not viewed as a tax compared to the penalty of the Health care laws

1. In Drexel Furniture it involved a 10 percent 'tax' on income, regardless of size of infraction. The Health Care Tax then could never exceed the price of Health Care.
2. The offender must know they are breaking the law.
3. The agency collecting the 'tax' has to have had a history of collecting taxes. IRS yes, Dept of Labor No.

The Health Care Tax could never exceed the price of insurance. So what if one year the 'Tax' could be shown to exceed the price the person would pay for health insurance? one could sue and now the Tax would be unconstitutional.

None of this is to say that the payment is not intended to affect individual conduct. ...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 ...Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns.

NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 36-37 (2012).

We again have taxes being laid on the activity of purchasing or selling of a product.

When we hit to pages 41-44

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other cir­cumstance.” … There may, however, be a more fundamental objection ...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 Congress to impose a tax for not doing something.

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. The Court today holds that our Constitution protects us from federal 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. The Court today holds that our Constitution protects us from federal

NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 41-42 (2012)
So Chief Roberts is now attempting to address my concern of “taxation without activation”. He first says this NOT a capitation since not everyone pays for it. Then in an attempt to allay my concern, Chief Justice says the Constitution does not guarantee avoiding of tax through inactivity. His example is Capitation. How is it phrased? “Capitations are taxes paid by every person, without regard to property, profession, or any other cir­cumstance.” This is a tax which is not able to be avoided by inactivity it also can not be avoided by activity. It is a tax laid “without regard” to action or inaction.

If you are going to give an example of inactivity not protecting from taxation, give me a better example. Don't go from this tax is not a Capitation to Capitation is a great example of inactivity not being protected. In fact it is not a great example. Since neither inactivity NOR activity would protect a person from the tax.

NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 42 (2012)

Tax incentives already promote,for example, purchasing homes and professional educations. See 26 U. S. C. §§163(h), 25A.

NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 42 (2012)

Now I am having trouble to find the 26 U. S. C. mentioned above. But we are not being taxed for not buying a house are we? How about being taxed for not getting a professional education

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.

NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 43 (2012).

Talk about narrow! If the IRS collects money its a tax. As long as it was not too heavy its an allowed tax.

Here is the part I am a bit confused on. So this narrow definition involves not intending to break the law. “Such scienter requirements are typical of punitive statutes, because Congress often wishes to punish only those who intentionally break the law.” What confuses me is that it seems to involve people who may chose to 'break the law'. It was not unintended.

It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 44 (2012).

When you have to narrow the definition of a tax in order for it to fit, so narrow taxation can be applied to inactivity. When it is not argued as a tax in a prior court. (even now when it is not even being called a tax by the administration) The larger the law the greater the interruption of the alternate meaning needs to be.

Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes.

A foot note from page 44 of Chief Justice Roberts decision. So having health care will reduce our taxes, or is it really just our taxes won't go up.

The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 44-45 (2012).

Reasonably? You had to narrow the definition of tax down, and could not find any tax in which inactivity is the ONLY reason for being taxed. You said it is not a capitation tax, then later say how capitation is a good example of inactivity not protecting you from a tax, but also activity does not protect you from the tax. Because it is not a penalty, since you can not disobey something which can not be commanded of you.

In dealing with the Medicaid expansion, Chief Roberts opinion is the Federal Government can not make it so burdensome to the States they have no choice in whether to follow the new expansion or not.

“What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS 567 US Opinion of Roberts C. J. 55 (2012)

It was interesting to hear a discussion by George Washington University Constitution Law Professor Luis Seidman claim that Chief Justice Roberts did this for political purpose, by giving Romney something to run against. Really? Roberts is trying to be conservative. But not by overturning a law he would find objectionable as a conservative but by but letting congress pass any constitutional laws it wants even if he would personally disagree.

But while you could agree the mandate needs to be a tax, it could be stated that the way the tax is applied is not constitutional. No example of a tax has been shown to be activated by inactivity. If it is a penalty, which would not be allowed under the commerce clause, inactivity (failure to obey a lawful and constitutional command to acquire health insurance) triggers the penalty. Inactivity may not protect a person from avoiding a tax as in a capitation, but it is not what triggers the tax. In the capitation tax, existence would trigger the tax,activity and inactivity would not protect a person from the tax.

Taxing someone for inactivity when they never has been a tax in which failure to do something caused the tax. Give me an actual tax in which it happened.

So what would stop congress from having you pay a tax, if you don't show proof of belonging to a gym?

Inactivity may not protect you in a capitation or property tax. But inactivity does not trigger the tax. Inactivity my trigger a penalty but where in history has inactivity triggered the tax?

Well this concludes my thoughts on the opinion of Chief Justice John Roberts.