In the Cloakroom

 | 




Share This


Fungible Semantics: The Roberts Decision

 | 

Tax: A contribution for the support of a government required of persons, groups, or businesses within the domain of that government.

Penalty: A punitive measure, regulatory in nature, established by law or authority, to deter certain conduct.

A Supreme Court decision upholding the constitutionality of the healthcare mandate based on the government’s taxing authority?

Well, why not? The tax code has been dragooned into service to influence and shape social behavior for over a hundred years, from a dollar-a-pack cigarette tax, to mortgage relief to encourage home ownership. In addition to the collection of revenue to bankroll government it evolved into an instrument for social engineering and stealth workarounds to advance social policy. Which of the following statements is true?

A tax raises revenue, a penalty raises revenue, therefore a penalty is a tax?

A tax influences behavior, a penalty influences behavior, therefore a tax is a penalty?

That’s right — neither is true. These syllogisms illustrate a well-known logical fallacy that can be found in any college textbook on logic. How, then, could a superior jurist like John Roberts persuade himself that a penalty is a tax? Well, the Chief Justice opined that the penalty for noncompliance with the mandate ($695) was too weak to constitute a deterrent, and must therefore be a tax! This left many to wonder if he had intentionally confounded these two concepts, and thus rewritten the mandate so the Affordable Care Act would pass constitutional muster.

The logic was so bizarre and flawed that some, like Charles Krauthammer, suggested that Roberts resorted to this semantic legerdemain to avoid politicizing the Court and weakening its prestige. But this is to forget that the Constitution was born in crisis and the Court has weathered more violent partisan storms than those of the current climate: just read some of the broadsides in newspapers written one hundred to two hundred years ago. To my knowledge, no Congressmen have been caned to within an inch of their lives in the well of the Senate (though, no doubt, some have deserved it), and no cabinet secretaries killed in duels in the past 100 years. A good rule of thumb: follow the law and let the chips fall where they may.

Misconstruing what is obviously a penalty as a tax may seem a harmless bit of hocus pocus, but playing hard and fast with meaning and general disregard for semantic precision has resulted in a Supreme Court decision that could have unfortunate consequences for the American economy. Or as one editorialist (James Delong) put it:

The ACA is a complex and incoherent law drafted in haste and secrecy, written largely by the healthcare industry to promote its own profits by bringing more people into a government-administered system open to capture and looting. It is defended by an administration trapped by the imperative of defending its handiwork. The product is a Rube Goldberg regulatory system that cannot be made rational, workable, or intelligible, and is a delicious (to Republicans) promise of an endless stream of outrages.

It is all very well for the Chief Justice to defer the issue of constitutionality back to elected officials, but as Ronald Reagan once remarked, “The nearest thing to eternal life we will ever see on this earth is a government program,” and it will be difficult to impossible to repeal the healthcare law even if Mitt Romney is elected president, unless there are significant Republican majorities in both houses of Congress. The stakes were high, very high. This could be the worst Supreme Court decision since Kelo v. City of New London, and it is fair to ask if, during his stormy sessions with the brethren, Justice Roberts experienced some sort of mental lapse.

In the last century or so, no Congressmen have been caned to within an inch of their lives in the well of the Senate — though, no doubt, some have deserved it.

The original sin was, of course, using the tax system as a quick-and-dirty tool to improvise policy, to encourage (say) petroleum exploration or to discourage the use of tobacco, thereby exempting government from the strenuous work of writing carefully crafted long-term programs to advance a coherent policy. The Constitution says that

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . .

The framers did not say that the collection of taxes could or should be used to influence economic behavior or placate special interests, and in this they showed some foresight: broadening the concept of taxation to, for example, provide incentives for certain economic entities, has resulted in a Byzantine tax code so complicated and unwieldy, so corrupted by influence-peddlers and lobbyists, it has become a national embarrassment, and a general disincentive to business and entrepreneurship. Using the sacrosanct tax code as an ad hoc tool to implement policy (rather than enact problem-specific programs) has produced some very bad tax law.

Another institutional casualty, perhaps more fatal than the debasement of the tax system, has been the English language. A general contempt for the elegance and precision of English, e.g. twisting of meaning out of all recognition, demonstrates the dangers that George Orwell warned us about over 60 years ago in his essay, Politics and the English Language. The decline of English, he observed, had entered a deadly spiral:

it becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.

It was Orwell’s belief that words and semantic distinctions matter, that mangling language to suit one's purposes eventually leads to a world where black is white and up is down. How prophetic! We need language to map the world as it is, not as we would like it to be, and a breach of semantics can be even more lethal than a breach of law. Using imprecise language to conceal real meaning is a sure path to chaos. Orwell was talking about communist pamphleteers and flannel-mouthed journalists at the time, but it applies equally to any abuse of language, and that includes the recent decision by Chief Justice Roberts to call a penalty a tax.




Share This


The Second Hander

 | 

In my last article on the legal challenge to Obamacare I expressed optimism that Obamacare would be struck down. However, in an earlier Liberty article I had said it had only a 1% chance of being overturned. As it turns out, Obamacare was upheld, in a 5–4 decision that is a devastating loss for libertarians and the death of hope for saving the US healthcare industry from a slow decline into socialized medicine.

What happened? In my last essay I said that Justice Kennedy was the swing vote, and he was expected to vote against Obamacare. And that's what he did. With his vote we should have won. But he was not, in fact, the swing vote. Chief Justice John Roberts, whom George W. Bush appointed to be a conservative bulwark, turned traitor and voted with the court’s liberals. Why?

When I was in law school the chief justice was still newly appointed, but he had already gained notoriety as a person deeply concerned with how the public viewed “the Roberts Court” (Supreme Court eras are often named after the chief justice who presides over them — the Rehnquist Court, the Warren Court). Roberts has proven himself a conservative in other opinions. He is reported to be a brilliant man, and surely knew what was at stake in the Obamacare case. But it appears he was so deeply worried that the public, influenced by both the Citizens United and the Obamacare decisions, would perceive the Roberts Court as an extremist ultra-Right court that he cared more about what other people thought of him than he did about his own ethical convictions. Judges do not face reelection, but the famous ones often care deeply about how history will view them. To simplify things, he was too embarrassed to be a principled conservative.

In that sense I liken him to Peter Keating, the “second hander” in Ayn Rand’s novel The Fountainhead. Peter Keating has no conviction or integrity, but “selflessly” lets other people create and define the goals and aspirations that he then pursues with ruthless ambition. Chief Justice Roberts has no internal principles, but simply goes with the public sentiment, or what he perceives to be other people’s perceptions of his court. The Supreme Court was designed by America’s founders to be a check on the actions of Congress in order to protect the American people from unconstitutional laws. The Court has failed, and the commerce clause has now lost all meaning. But the origin of this crisis lies with human psychology, not legal doctrines.




Share This


Taxes on Buying and Not-Buying

 | 

In his decision on the healthcare law, Chief Justice Roberts interprets the "penalty" on not buying health insurance as a tax. He recognizes that it is meant "to affect individual conduct." But such taxes, for example import duties, are nothing new. As Roberts says (pp. 36–37 of the decision), "Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise 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."

But the import, cigarette, marijuana, and shotgun examples are taxes on selling and buying something. The penalty regarding health insurance is a tax on not buying something. Does Roberts really mean to constitutionalize a tax on not buying whatever Congress may specify? What has become of constitutional limits to federal power?




Share This


The Fast and Furious Investigation: Quick or Dead?

 | 

On June 28 the US House of Representatives voted 255-67 to hold Attorney General Eric Holder in contempt of Congress for failing to provide documents subpoenaed by the Oversight and Government Reform Committee. Although the vote was largely along party lines, it still represented the first time in American history that a cabinet member has been found in contempt of Congress.

Partisan or not, the contempt vote was more than justified by the facts. The attorney general has stonewalled Congress’ investigation of Operation Fast and Furious, a crazy policy which amounted, in substance, to running guns into Mexico with the expectation that this would lead to prosecutions and the interdiction of weapons trafficked to Mexican drug cartels. One US border patrol agent has already died as a result of Fast and Furious, as have an untold number of Mexicans. Hundreds of the guns remain in the hands of criminals who will not hesitate to use them to kill people. While it should be noted that tactics resembling Fast and Furious were first employed by the Bush Justice Department, the stupidity was ratcheted up in a big way under Holder. In any case, the attorney general has provided Congress with about one tenth of the documents under subpoena, and contradictions have cropped up in his congressional testimony. The whole business stinks, and yet the scandal remains (except on the Fox News channel) for the most part under the radar screen.

On the day of the contempt vote I heard some talking head on a cable news program declare that the timing of the vote showed that the Republicans were not veryserious about pursuing their investigation. On the contrary, the vote was scheduled to coincide with what the Republicans thought would be an overturn of Obamacare by the Supreme Court — the second blow of a double whammy that would jumpstart the Republican effort to take the White House. This plan backfired when Chief Justice John Roberts found a way to declare Obamacare constitutional. The unexpected reversal of fortune for Obamacare washed the contempt vote right out the public consciousness.

It is a fact that the New York Times and the Washington Post have done little to get to the bottom of Fast and Furious. Nothing illustrates the mainstream media’s bias in favor of Obama more than its (non)response to this scandal. Even less surprising is the absence of a Democrat version of Howard Baker asking publicly “What did the attorney general (and possibly the president) know, and when did he know it?” Obama is no Nixon, but Holder might be another John Mitchell. We’ll never know for sure, because Holder, unlike Mitchell, will never wind up in the dock (the Justice Deptartment is not about to file criminal contempt charges against its own AG). So much in life depends on who you are, and even more on who your friends are.




Share This
Syndicate content

© Copyright 2017 Liberty Foundation. All rights reserved.



Opinions expressed in Liberty are those of the authors and not necessarily those of the Liberty Foundation.

All letters to the editor are assumed to be for publication unless otherwise indicated.