The possibility of repeal

I had thought that repeal would be almost impossible, given that, even with Romney in the White House, the Republicans would need 60 votes in the Senate to get cloture. But evidently the Republicans are set on using “reconciliation,” which bypasses cloture, and they are set on using it no matter what the procedural hurdles against it may be.

If this is true, then the country can still be saved from Obamacare, if Romney wins the presidency, and if the Republicans win the Senate, and if the Republicans maintain control of the House.

None of this excuses the numerous conservative opinion-makers who applauded Roberts’s lawless decision, a decision that effectively destroys the Constitution as a limitation on Congressional power.

- end of initial entry -

Lydia McGrew writes:

Wesley J. Smith points out at his blog Secondhand Smoke that tax repeal bills can’t be filibustered. So if the Republicans can use that, plus the fact that this has been declared a “tax,” presumably 60 votes wouldn’t be needed. Not that that makes anything any better concerning Roberts’ dreadful decision.

Thucydides writes:

It is ironic that Chief Justice Roberts’s incoherent opinion opens the door to repeal of Obamacare through a simple majority in the Senate under “reconciliation.”

Under Senate rules, tax provisions are not subject to the filibuster, hence only 51 votes are needed to pass them.

Clearly, the provision for a fine on those not purchasing insurance is not a tax; it is not intended to raise revenue, as shown by the de minimus estimate placed on it.

This is significant. At the time of our Founding, the colonists were not objecting to the powers of Britain to regulate trade, but to Britain’s claim of a power to raise revenue without the approval of the colonial assemblies (“taxation without representation”). A tax is to raise revenue; a fine or penalty is to impose a deterrent to certain conduct. Paying the penalty does not make the conduct O.K., even though it results in revenue.

Roberts’s notion that the Congress can impose a tax for pretty much any purpose (regardless of whether the purpose can be justified under the commerce or welfare clauses) blows a hole in the notion that the central government is one of defined and limited powers. It would in effect extend a general police power to the federal government, something never before seen.

Further, the Constitution requires that direct taxes be apportioned among the states. He tries to claim that the charge is not a direct tax, but clearly it is. And it is not an income tax, which under the 16th Amendment is excepted from the apportionment requirement.

I won’t attempt to guess what caused Roberts to engage in these extraordinary contortions which will be considered by serious, non-ideologically compromised constitutional scholars to be absurd, but the upshot is that the key feature of the legislation can be repealed in the Senate with a simple majority.

Roberts is a worthy successor to Justice Sandra Day O’Connor, known for her issuance of intellectually muddled and incoherent opinions in pursuit of results congenial to bien pensant opinion, as in the Michigan affirmative action cases.

LA replies:

Here’s another reason why it’s absurd to call it a tax. A tax is levied on an entire class of people, say people with a certain level of income. But the penalty for not buying health insurance is only levied on individuals who don’t buy health insurance.

Alexis Zarkov writes:

The issue as to whether a repeal could be passed under a reconciliation procedure remains somewhat uncertain. The legal blogs are arguing this very question right now. If the Republicans should win the presidency and the House in November, along with a simple majority in the Senate, we will experience a major and very bitter procedural fight over the reconciliation question. The Democrats are absolutely obsessed over Obamacare, and they don’t care how much trouble they cause trying to preserve it. I’m not sure that the Republicans have the courage and stamina for such a fight. They might just give up.

LA replies:

Yes. The Republicans might end up being motivated by the same concerns that evidently drove Roberts to his lawless decision: they wouldn’t want to be seen as too divisive.

Posted by Lawrence Auster at June 30, 2012 11:11 AM | Send