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Law is not rational | 355 comments | Create New Account
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Law is not rational
Authored by: PJ on Tuesday, July 03 2012 @ 11:51 AM EDT
This ruling provides a very clear example of the non-rational nature of law (not making a judgement about whether non-rational law is a good thing or a bad thing). On a plain reading of the opinion, it starts by asserting that the affordable care act can be tried by the court at this time because it is not a tax. The majority then goes on to assert that neither the commerce clause nor the general welfare clauses provide congress with the power to pass this act, but then it asserts that it is within congress' power under the taxation clause. Thus a plain reading of the majority opinion is that the act could be ruled upon because it is not a tax, but at the same time it is constitutional because it is a tax.

Law is rational, if you understand the rationale.

Let me try to explain. Again.

You misunderstood something pivotal when you write: "it starts by asserting that the affordable care act can be tried by the court at this time because it is not a tax."

That isn't correct. The court said it is not a tax under the requirements of the Anti-Injunction Act, which is what some had told the court mean it lacked jurisdiction. So the court looked at the act itself, and it saw that the health care act uses two terms, tax and penalty, and they don't mean identical things. So, under *that act*, it meant that the individual penalty under ACA, which is called a penalty, not a tax, is not a tax, under the strict rules of the Anti-Injunction Act.

Next, the court examined the Commerce Clause. Does it make it possible for the government to force people to buy a product they don't all want to buy? And examining *that law*, they decided no. The government can't force them.

Next, it looked at the powers of Congress to tax. Did the government have the power to lay a penalty, to be collected as a tax, on those who don't buy a product they don't want to buy? And the answer was yes, within the four corners of the powers the US Constitution gives to the Congress. It can tax. So while the penalty isn't a tax, strictly speaking, it is being collected by the IRS at the same time as taxes, and it's not designed as a punishment in that you don't break the law by not buying insurance as long as you pay the penalty -- the choice is up to you -- so it's an encouragement not to freeload on the rest of us.

Do you see the difference? The government can't force you to buy insurance, but it can ask you to pay a fee if you don't, so as to make sure the rest of us are protected from you.

Freedom is great, but when it hurts other people, your freedom may have to be limited to what does *not* hurt other people. That is the rationale for ACA, and frankly for a lot of laws. People will do whatever benefits them, often, and that can be painful for others. Some people like to kill other people, after all, so the government says you can't do that. And even in civil matters, some people really enjoy defrauding other people and getting rich that way, because it's quick and easy. But the government passes laws that you can't do that, or at least that there are penalties if they catch you.

But the penalty in ACA isn't like that. It's not saying you are bad or doing anything wrong, just that it's got a fee asigned to your choice, so you figure out the math and do what you prefer, and the penalty is to encourage you not to lack insurance, because when you don't have insurance, you are a potential burden on the rest of us.

[ Reply to This | Parent | # ]

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