Monday, July 2nd, 2012
I’ve been having interesting conversations via email and FB on the question of the ACA and certain theological questions, ranging from Biblical exegesis all the way to Gould. They’e been fruitful and have jogged many things out of memory.
I’ve just completed my typical readings of the Supreme Court language on the ACA and my reaction, at least at this time, is that Justice Roberts’ and the Scalia lead dissent are somewhat strange. The majority opinion and dissent appear to be talking past each other, though more on the dissent side. The dissent is particularly flavorful in its rejection of Justice’s arguments.
Their’s a chasm in this ruling. Withal, Roberts holds that
it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.
He writes on page 50: “The Federal Government does have the power to impose a tax on those without health insurance.” Earlier above D, he writes:
The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
This is one of the key logic principles:
Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote,for example, purchasing homes and professional educations.
See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.
I can understand this in terms of renters vs homeowners. But I think this logic misses a finer point: that indeed, people who have health insurance are involved in transactions some of which contribute to those who don’t have it.