ObamaCare as a tax is a 'position that no lower court accepted,' Justice Kennedy

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6/28/12, "Kennedy dissent: Court 'imposes tax when Congress deliberately rejected tax'," The Hill, Sam Baker

"The dissent said Congress did not intend for the health insurance mandate to function as a tax.

The Supreme Court’s most conservative justices pulled together Monday for a harsh dissent in the court’s landmark healthcare case, saying the court should have invalidated all of President Obama’s healthcare law.

Justice Anthony Kennedy — once considered the swing vote in the healthcare decision — sided with three of the court's conservatives in the blunt dissent.

“The fundamental problem with the court’s approach to this case is this: It saves a statute Congress did not write,” Kennedy said in a statement from the bench. “The court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching.” The court said in a 5-4 decision that the healthcare law’s individual mandate is constitutional. Chief Justice John Roberts Jr., writing for the majority, said the mandate functions as a tax — a position that no lower court accepted.

The dissent — written jointly by Kennedy and Justices Antonin Scalia, Clarence Thomas and Samuel Alito — said Congress did not intend for the mandate to function as a tax.

“The court imposes a tax when Congress deliberately rejected a tax,” Kennedy said.

The dissenters also criticized the majority’s split decision on the healthcare law’s Medicaid expansion. The court said the expansion was partially unconstitutional because states would have to give up their participation in the entire Medicaid program just to reject the newly added requirements.

Although Roberts decided that threat amounted to coercion, the court did not strike down the entire expansion. Rather, it simply said the federal government could not withhold all funding from states that choose not to participate.

“The values that should have determined our course today are caution, minimalism, and the understanding that the federal government is one of limited powers,” Kennedy said. “But the court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism,

• it undermines state sovereignty.”"

via Howie Carr