supreme court deal with it

Today the Supreme Court issued a landmark blah blah blah what the fuck happened this morning in DC?

Basically, the Court answered four questions.

1. Can people sue the government over the healthcare mandate yet?

This is important because way back in 1789, Congress passed a law called the Anti-Injunction Act (AIA) saying you can’t challenge a tax before you’ve paid it — you have to pay it, and then sue for a refund. That was to prevent people from tying up the government in court all the time with frivolous lawsuits to buy more time. It’s like, “Fuck, I don’t have the money yet. OH I KNOW. I’ll sue the government, saying the tax is illegal, because it takes like decades for shit like that to resolve, and in the meantime no one will have to pay! I’LL BE A HERO.” Can’t do that. Instead, you have to decide that it’s worth your time to go and get the money back in a court battle.

If the healthcare mandate falls under the AIA, then this suit has to wait all the way until 20-fuck-15, when people start paying it. However, the court ruled that the healthcare mandate does not fall under the AIA, because Congress didn’t call it a tax. This is really important — Congress didn’t call it a tax, so it doesn’t count, because the AIA only applies to things that Congress calls taxes.

2. Is the Individual Mandate to buy health insurance constitutional?

The Individual Mandate is, of course, the part of the ACA, or “ObamaCare”, that says you have to have insurance, or else you pay a penalty. The Constitution lists like ten or twelve things the federal government can do, and that’s all. It has the power to regulate commerce, it has the power to tax citizens, it has the power to build an army, and so on. If it isn’t listed in the Constitution, the Federal government can’t do it. So the government can’t just decide, “hey, everyone in Florida has to get in the ocean. And stay there. Forever.” Because the Constitution doesn’t give it that authority. So the government had to explain which power it has that allows it to force people to buy health insurance.

There were a bunch of candidates for why the government can mandate that people buy health insurance. Most people thought that Congress’ power to regulate commerce would do it — they’re allowed to decide what you can buy and sell, they’re allowed to set prices, they’re allowed to penalize businesses for cheating, and so on. Why not just penalize people for not buying health insurance? Well, the Court decided that that’s not regulating commerce, that’s regulating not doing anything. “I just want to sit here and breathe.” “Well, you can’t fucking do that. Now get farming.” That seems like a government that is waaaay too powerful, huh? It can compel you to farm? The Supreme Court said that the Federal government just can’t be that powerful.

HOWEVER. The government also offered the argument that “Hey, we’re allowed to tax people, right? So, the financial penalty is really just a tax, and we’re allowed to do THAT whenever we want.” The problem is, they didn’t call the mandate a “tax.” They called it a penalty. The fact that they called it a “penalty” instead of a “tax” is the entire reason the case didn’t go out the window at the first question. So what gives?

Well, the Supreme Court decided that if it looks like a tax, and walks like a tax, and quacks like a tax, if a reasonable person could hear a description of this thing and go, “Oh, like a tax. Got it!” Then it falls under Congress’ power to tax, even if they don’t call it that.

What does a tax look like? According to Chief Justice John Roberts, it’s a payment to the government for some reason. But more than that, a tax is something you can reasonably pay without considering it a punishment — a billion dollar fine for an ounce of marijuana isn’t a tax, that’s a penalty for sure. But like a $60 fee for not having health insurance? Well, that’s less than the cost of health insurance. That’s not really a punishment at all. And in fact, the individual mandate specifically says that the penalty can’t be more than the cost of insurance would be. So it’s not like you can be fined $200 for not carrying $100 worth of insurance.

Further, taxes raise revenue for purposes. The Individual Mandate raises revenue so that the government can cover people who can’t afford their own insurance.

Finally, taxes get handled by the IRS, and the penalty for the Individual Mandate gets collected by the IRS, who is only allowed to collect it either by direct payment, or by withholding it from your tax return. They’re not allowed to chase you down or put you in jail; they can’t even fucking sue you. So, you know, this isn’t like something that the government uses guns to make happen — it’s just a payment they’d love for you to make, if you’re so inclined, thanks!

And that was enough for a majority of the Court. They decided that the Mandate looked enough like a tax, even though it described itself as a “penalty,” to fall under Congress’ power to tax people. The Anti-Injunction Act didn’t apply because the way that law is written, Congress has to call something a tax before the AIA applies. But calling it a tax or not calling it a tax doesn’t change how the Constitution applies to it.

So now it’s like Congress is taxing everybody a certain amount, and then you get that amount in a tax break if you have health insurance, so you never have to pay it as long as you have insurance. It’s like the tax break you get for having a kid or getting married.

3. If the Individual Mandate is unconstitutional, does that invalidate the whole law?

This question ended up not mattering, because they decided the Individual Mandate is constitutional.

4. On a different note, can the Federal Government require states to expand Medicaid programs, or else take away existing Medicaid dollars?

Right now, the states have a lot of flexibility with how they pay for Medicaid. The Federal Government basically says, “Hey States, we’ll give you a billion dollars each (or whatever, the actual numbers vary), as long as you make sure that poorer citizens get healthcare. Is that cool?” And the states are like, “Fuck, absolutely yes, that is a great deal. Now we don’t have to foot the bill for healthcare for those people!”

The new bill expands the number of people eligible for Medicaid, but offers more money. “Hey states, we’ll give you another half a billion each, (again, or whatever) if you’ll cover a bunch more people. The trick is, if you don’t take this deal, we’re also going to take away the old deal.” So now the states are between a rock and a hard place — either they take the money and expand programs they maybe don’t like, or else they lose all the money they were getting. And the Court ruled that that isn’t fair to the States — they have to offer the deals separately. The Government can’t make one deal with the states, and then threaten to undo that deal if another thing doesn’t go through.

5. So what does this all mean for me?

Well, since the bill hadn’t taken effect yet, nothing immediately. However, it means that starting in 2014 you have to start carrying health insurance or you have to pay more in taxes starting in 2015. It’s also a huge victory for President Obama and the Democrats. The guy who cast the deciding vote is a Republican who was nominated and confirmed by other Republicans. He’s their guy, and they can’t undermine him. They picked him.

It also means that the federal government can never throw you in jail or otherwise make it a crime to not have health insurance or to not eat broccoli or engage in any other kind of economic activity. They can make new taxes and give you a tax break on broccoli, but they can never force you to eat it or even to buy it — you could always just pay the tax. In fact, they’re not even allowed to pass taxes that are too big, so big they stop being taxes and become a penalty; the taxes have to be reasonably limited, something some people would consider paying instead of going through a hassle.

Further questions for Miles? Leave ‘em in the comments and he’ll answer!

  • KuBe

    Really good article that lays it all out pretty well and with a sense of humor. Could you clarify the part about how you can’t be thrown in jail or anything more than a withholding of a tax refund for failing to pay the tax. I’m still unclear on this part. Generally, the IRS has the power to punish you by, among other things, putting you in jail or forcing you to pay other penalties. Is it in the law that the IRS can’t do this in this limited situation? Clearly I haven’t read it yet, so that’s entirely possible. Thanks

    • MilesLothe

      Sure thing – the bill gives the IRS the power to enforce this bill, but it isn’t a standard tax like an income tax or a tax deduction – it’ll be counted at the same time, but not in the same category.

      As a result, if you don’t pay the penalty, you’re not technically behind on your “taxes,” where “taxes” means the thing the government CALLS taxes – you just owe the IRS money for a “penalty.” So the IRS’s authority to sue you/fine you/imprison you doesn’t apply here – that authority is if you refuse to pay “taxes”. And since the bill itself doesn’t afford any additional enforcement mechanism, that’s the end of the line. The government says you owe it money, and if you don’t pay that money, well, you can expect a STRONGLY worded letter, SIR OR MADAM.

      In short, the Anti-Injunction act isn’t the only thing the word-shuffle avoids. It also avoids much of the standard IRS infrastructure, and the bill declines to add any new infrastructure besides, “Pay these guys over here, the ones you normally pay anyways. Pretty please.”

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