Jul

1

I'm glad to see that an acquaintance of the Chair has brought up the additional (secondary?) opinions. Too often we concentrate on the "big picture" while the real drama is played out in relative obscurity. One of my sideline activities involved promoting and selling tickets for the Golden Gloves. One of the benefits (?) was the provision that we could watch the fights for free. Every year there were several matches which received a big hype because of current win/loss records, past matches, on-going grudges, and the sure-fire big-draw match: two loud mouths with dis-similar socio/economic/ethnic backgrounds (Black/Hispanic, Irish/Italian, Catholic/Protestant, privileged neighborhood/housing project).

With few exceptions the fights rarely lived up to expectations and ended quickly. The real interesting matches, those that promised on-going animosity and future rematches, were found on the under-card. The winners generally prevailed because of a final round "lucky punch" or a very close, highly disputed decision by the judges. In any case, though the result might have been settled for the time being, there was little doubt that rematches were in the future.

In our current conflict over "tax or penalty?" I believe too little attention has been paid to the under-card opinions submitted (authored) by Ginsburg and Scalia. (A confession: for a number of years, long ago, I read old SC opinions regularly - my interest was not in their conclusions, but in the elegant manner the authors employed in laying out the problem, recorded the influences and previous events that guided their reasoning, the flaws in those of their opposition, and why their conclusion ought to ultimately prevail.)

In her opinion (arguing that Congress can use penalties to enforce participation), Ginsburg is unnecessarily lengthy (in my opinion) in repeating portion of the Bill that could just as easily been footnoted or referenced. That said, I believe much of her case can be summed up from the following excerpt:

The Framers understood that the "general Interests of the Union" would change over time, in ways they could not anticipate. Accordingly, they recognized that the Consti­tution was of necessity a "great outlin[e]," not a detailed blueprint, [see McCulloch v. Maryland,] "explained by the context or by the facts of the case," Letter from James Madison to N. P. Trist (Dec. 1831)… "Nothing . . . can be more fallacious," Alexander Hamilton emphasized, "than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,] as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity." The Federalist No. 34…"

Her points seem to follow those embraced by the "living Constitution" segment of the legal community. Of course, I have reproduced only a small fragment of her entire argument and others may feel a more lengthy exposition of them is required. They are invited to go at it.

Scalia's opinion is one in which he disputes both Roberts' majority opinion and Ginsburg's minority dissent. Although his opinion is not quite as lengthy as Ginburg's, it is substantial and others may examine it for more telling excerpts. In the following I believe he addresses the cases put forth by both Roberts and Ginsburg:

"It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so…" He finds they did not. Further:

"Our cases establish a clear line between a tax and a penalty: "'[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.'" … this Court has held that a "tax" imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: "[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act."

I've gone through this exercise because I believe the two "minor" opinions will be used to establish arguments for and against future Congressional taxing/penalty legislation. While others might find Roberts' decision Solomonesque, I think future developments will prove otherwise. Currently, a recommended tax increase, for whatever purpose or on whatever constituency, is negatively received. However, we are quickly approaching that magic moment when the number of voters required to pay no federal taxes will surpass that of those who do.

For years, the well-off, the middle-class, and the just-getting-by majority has done an admirable job in approving (many times with great reluctance) beneficial programs for the poor, the working-poor, the physically and mentally challenged, and otherwise disadvantaged minorities.

I chose the word "admirably" purposely. I realize there are those, many perhaps, who will disagree with the descriptor. If that's the case, fine. My concern is that when that current minority achieves majority status, that view will linger and bring about tax/penalty legislation that force current Roberts' admirers to reconsider their position. The fight is not over - it has just begun.


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