The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Mataconis: Less Guano, Please

Posted on | June 30, 2012 | 49 Comments

by Smitty

Mataconis takes Podhoretz to task for asserting that the Chief Justice contradicted himself by discussing ObamaCare in terms of the Anti-Injunction Act for purposes of standing, and then turning around and finding ObamaCare Constitutional as an exercise of tax power.

Clearly, Roberts is discussion two very distinct issues in these different section of the opinion. In the first, he is dealing with the discrete question of whether or not the PPACA mandate penalty qualifies as the kind of tax contemplated by the Anti-Injunction Act such that challenges would have to wait until at least 2015 to be filed in a Federal Court. In other words, it was purely a question of whether the Plaintiffs in the case had standing to challenge law at this time. The case law surrounding this issue tends to be complicated, but it was clear at the end of oral argument that none of the justices bought that argument.

Can we please cut through all the legal guano here, Doug? Get a piece of paper and draw a timeline. How, pray tell, if ObamaCare is magically discovered a tax, is it being argued before the SCOTUS three years ahead of completion of its infernal gestation?

A few points:

  • The decision is what it is. What this post is not is an attempt to re-jigger the past. The past, as the taxation nature of ObamaCare would be if anything like consistent logic obtained, will not budge. This is what we have, and calls for Roberts’ head on a silver charger are more than a little overblown.
  • Having SCOTUS decisions turn into convoluted crayon duels (like ObamaCare itself) is no help. The SCOTUS works for the We the People.  There is no excuse for complicating the situation unnecessarily.  If the legal stylings have become so Byzantine that the typical college student cannot follow them, then perhaps the fault is with the legal stylings, and not the audience.
  • Argumentum ad verecundiam is unimpressive. This is America. Respect, like contempt, is an earned quantity. Someone who yells “Are you a lawyer?” as a twit did at Seton Motley on Thursday the 28th, as though a law degree is a prerequisite for public speaking, earns the contempt.
  • What’s crucial, and therefore little-discussed, is the economics. Sure, legal arguments. Fine, political speechifying. From whence cometh the loot to drive it all?  As Walter Scott noted, “Be it better, be it worse, be ruled by him that has the purse.” The simple budgetary fact that the 57 State horses are being pulled by the Federal Reserve cart will become painful Real Soon Now. But that’s OK: we take honest budgeting as seriously as simple, coherent reasoning.
  • Libertas et Memoria points out that David Brooks likes the ObamaCare decision, which I think they called an OSCVLVM MORTIS (“kiss of deat”) in the old days.

As a lawyer of some note once said:

How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.

After that, I can’t decide whether (a) to break into a paraphrase of the dog lifting the leg to opine on the ObamaCare ruling, or (b) some jape about BHO looking at the dog and saying: “Breakfast!”
Exit question: Did Scott Adams intend a vague ObamaCare reference in today’s Dilbert?
Probably not.

Update: linked at WyBlog.


  • DonaldDouglas

    That’s epic, Smitty. 

  • Quartermaster

    SCOTUS is supposed to work for us. However, they don’t. Like POTUS, teh congresscritters, they’ve been in contempt of the constitution for better than a century. Lincoln was one of the worst and if not for his victory in his his war of imperial conquest we would not even be having this conversation because Obama would not have come to be POTUS, nor would the Lincolnian anticonstitutional consensus be with us.

    Obama and Roberts are just the logical conclusion of Lincolnism.

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  • McGehee

    Even Humpty Dumpty is aghast at Roberts’ “reasoning.” As he said to Alice Thursday afternoon, “Even I only attribute one meaning to any given word at any given moment!”

  • King Shamus

    “If the legal stylings have become so Byzantine that the typical college student cannot follow them, then perhaps the fault is with the legal stylings, and not the audience.”

    Also, you must heed Doug “Juris Doctor” Mataconis’ grand legal wisdom. He’s the Bruce Dickinson on teh intertubes.  If he wants more cowbell, you give him more cowbell…baby.

  • Adjoran

    So J-Po’s complaint is that SCOTUS should have deliberated and reached a decision before taking the case, and then left it to ripen for another 2-3 years until someone actually paid the tax?

    Perhaps they could have slipped me next week’s lottery numbers in advance, too.

    I have to laugh at the hypocrisy of those who argued (alongside me and most other conservatives) that it was a tax – so persuasively that we forced Obama to make serial appearances denying it was a tax – but who are now furious with Roberts for agreeing with us.

    If the legal stylings have become so Byzantine that the typical college
    student cannot follow them, then perhaps the fault is with the legal
    stylings, and not the audience.

    I blame the colleges.

  • Adobe_Walls

    One can never go wrong blaming the Colleges after all that’s where incubate orks…er lawyers.

  • CPAguy


    The South was in direct violation of the Constitution.  To get upset about Lincoln’s actions would essentially mean an embrace of Justice Robert’s convoluted ruling.

    Lincoln did what the Supreme Court was too scared to do in the Dred Scott case (which is now being compared to the ObamaCare ruling)…he made sure that the freedoms guaranteed in the Constitution prevailed over asinine narrow distinctions of law that contradicted the nature and intent of the Constitution.

    Yea, yea…some people say the Civil War wasn’t really about “slavery” and that the Dred Scott decision had nothing to do with it….but that is laughable revisionist history.

  • CPAguy

    Terrific post, Smitty.  I must say that you are rounding into fine form lately.

  • arturo_ui

    “Lincoln was one of the worst and if not for his victory in his his war of imperial conquest…”

    Good Lord. 

    GET.  OVER.  IT.

  • JeffS
  • Bob Belvedere

    HD’s a good egg; he jumped all over the Red Queen’s big arse for sayin’: ‘When I use a word it means what I want it to mean’.

    [Kinda fittin’ that shes the RED Queen, eh?]

  • Bob Belvedere

    Remember 1453, Doug!

  • Bob Belvedere

    Ol’ Billy Shakes always has something to fit a moment like this.

  • Bob Belvedere

    I never argued that it was a tax.  As the Dissent argues, it is clearly a penalty, a fine, for failing to purchase something.

    A is A — you can call it B and dress your logic in whatever garish clothing you want to, but it will A will always be A.  Or as Lincoln / Smitty said: How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.

    A tax, by it’s definition, is a compulsory levy imposed upon the citizens of a country by it’s government solely in order to raise the revenue it believes it needs to carry out it’s proper functions.  Anything passed as a tax that seeks to do anything else, like, say, punish someone for doing something or for not doing something is not a tax, but a fine, a penalty imposed in order to cause the transgressor to suffer a monetary loss.  Therefore, to call such a fine a ‘tax’ is to deny Reality.  Once again: A is A.

  • Bob Belvedere

    Well then…have you bought his book yet?…hmmm?

  • Bob Belvedere

    From the Dissent:

    “And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, .containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.”

  • Evi L. Bloggerlady

    Yes it is.  I linked to it.  

    American Healthcare 101

  • Evi L. Bloggerlady

    Speaking of guano, calling a mandate a tax is like calling dog poop rich creamy chocolate.  You can do it, but it is still just as unpalatable (Red turned me on to that over at Bob’s place).  

  • Evi L. Bloggerlady

    But I hear he was a hell of a  vampire killer.  

  • CPAguy

     You should know by now, Bob, that Adjoran lives in a different reality.

    It is not a tax…and even if it was…the power of taxation was not meant to be a means to suppress freedom.

  • Bob Belvedere

    That’s unfair.  Adj is a very perceptive man.

  • crosspatch

    I am really getting frustrated by some of the reporting on this story.  The administration began calling this a tax as soon as the states started taking it to the federal courts.  Two years ago the administration’s lawyers were calling it a tax while at the same time the administration was telling the public that it wasn’t a tax.

    And once again I point people to this article in the NY Times from 2010.  It doesn’t matter if the President tells the people that it is a spending bill for providing ice cubes to Eskimos.  What the Chief Justice said is that the bill is fundamentally a tax bill and while the people might have been hoodwinked into supporting it, that is up to the people to rectify at the ballot box.

  • ThePaganTemple

    Roberts said its not up to the court to protect the people today from the consequences of their political decisions. I would suggest to him it is every bit their responsibility to protect future generations from the effects of those very same decisions.

  • Adobe_Walls

    Apparently there were no Economists in his day.

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  • McGehee

    As the Dissent argues, it is clearly a penalty, a fine, for failing to purchase something.

    That’s how I saw it too. And there are certainly enough other levies in the law, and mandates of a different kind that create hidden costs, that I would never have felt compelled to count the individual mandate’s noncompliance penalty among them.

  • crosspatch

     While I agree with the sentiment, the truth is that the Congress has unlimited power to tax.  They could tax sneezes if they wish, or they could tax NOT sneezing.  The remedy that our founders put into the Constitution is that the House is “recalled” every 2 years.

    I would also be willing to go out on a limb and state that if the Senate were still the house of Congress that represented the state governments, the law would have never passed.  The states would not have voted an unfunded mandate on themselves.

    What we are seeing here is yet more fallout from the changing of the Senate from representing the state governments to representing the largest metro area of most states.  Wilmington, DE controls Delaware’s Senate delegation, Chicago controls Illinois’, etc.  Now that the US population has become mostly urban, the mistake made by the 17th amendment is magnified.  We need to return the Senate to the house of Congress that provides the state governments with a check on federal power.

  • crosspatch
  • Mike G.

     States did/do have the right to secede from the Union if they so desire.

    Lincoln’s main concern wasn’t the freeing of slaves as much as it was about his feeling that the Federal Government should be the supreme  authority in the land. So in a nutshell, it was about state’s rights. Nothing revisionist about it.

  • SVT

    You are as intellectually dishonest as Mataconis.

  • Quartermaster

    History has a nasty way of coming back and biting you on the posterior. There’s nothing here to “get over.” Lincoln did what he did, and we are still paying the price for it.  Sorry about your revisionism, but History, and the truth, is what it is.

  • ThePaganTemple

     I seriously doubt Roberts believes the shit that spewed from his own pen into his majority opinion. He’s looking ahead to his legacy and trying to position himself as the elder statesman of the court, above politics and ideology. But its not up to him to set an example. His sole duty is to uphold the constitution.

    What I said about looking out for future generations of Americans was meant to apply well beyond this ill-advised decision. Everything the court decides can potentially affect generations of Americans to come. It’s not just about us.

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  • Adobe_Walls

    If the states had believed they could not separate from the Union there would have been no Union.

  • Adobe_Walls

    That’s why we need a “designer Supreme Court”.

  • CPAguy

     What does that matter if they were in direct violation of the Constitution?

    That would mean that a state can take away the freedoms of a minority (lets say 49%) of its population and avoid any penalty.

    To avoid the penalty the state then could merely leave the union while keeping the 49% of its population, who are protected by the US constitution in a freedom-less state.

    A state whose people are being denied constitutional rights cannot logically leave the union, since the federal apparatus has a responsibility to those who have lost their freedoms.

  • CPAguy

    A state that denies freedoms cannot logically leave the union…as the federal government would hold responsibility to the freedom-less.

  • Adobe_Walls


  • CPAguy

     Read the dissent….technically, and thus in reality, the bill was not structured as a tax bill…

    Additionally, taxation cannot be used to supersede other freedoms.  Only an out of touch lawyer (i.e. John Roberts and the leftist wing of he Supreme Court) would think that using narrow bits of law to override freedoms was ever the intent of the founders and framers of the Constitution.

  • crosspatch

     It doesn’t matter how it was structured or how it was sold.  What matters is what it actually IS.  And it was passed with reconciliation.

    How is the amount of the “penalty” determined?  According to your income, dependents, filing status according to the tax tables on your tax form.  Yes, it is a penalty.   A TAX PENALTY. 

    The administration has been arguing to the courts that it is a tax since 2010.  They have wanted to keep this fact from the people because it is very important that this not be shown to be a tax while they argue in court that it IS a tax.

    It doesn’t matter what they call it.  Just as they can give incentive for home buying by having a mortgage interest deduction, they can provide incentives for other things like having health insurance by having a tax penalty if you don’t have it.

    The only limit in the Constitution to the Congress’ power to tax is the ballot box.

  • crosspatch

     Put another way, if you do not file a form 1040, you don’t owe a penalty.  There is no requirement to pay anything if you don’t make enough to file income tax.

  • ThePaganTemple

     How many generations of Americans have grown up believing a progressive income tax is “fair” and constitutional?

  • Adobe_Walls

    Tripe and nonsense.

  • CPAguy

     In what way?

    So a state can deny citizens freedom and then avoid responsibility by leaving the union?

    Convenient, but not logical.

  • CPAguy

     It is nonsense to believe otherwise.

    Then the citizens of the States would have never came to the New World.

  • CPAguy

     So from your perspective, any penalty can be called a tax?

    LOL….many penalties have income related parameters.

  • crosspatch

     No, of course not.  But if it is applied on your tax forms according to your income, exemptions, and filing status, that certainly makes it a tax penalty.  Again, this “penalty” does not apply to people who don’t file a 1040.  It is an income tax penalty.  That is completely within the rights of the Congress to enact.  And we would be completely within our rights to throw them out for it.

  • Adobe_Walls

    b (1): language, conduct, or an idea that is absurd or contrary to good sense.