4th and Long, SCOTUS punts

OK, after reading through the first part of the opinion (and as an aside I do have to say that Chief Justice Roberts writes very clearly for such a complicated subject) it looks to me like the Supreme Court is a) trying to have it both ways and b) trying very hard to make the American people start paying attention again.
After reading the plain language of the Patient Protection and Affordable Care Act (ACA) the Court granted cert because the shared responsibility payment was declared a penalty, and not a tax which would render the Anti-Injunction Act non-applicable in this instance. The Anti-Injunction Act states "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." In other words, a tax cannot be challenged in court until after it has actually been paid. Since the shared responsibility payment for those who do not wish to purchase what the government will chose to define as "minimal essential" health care coverage is not enforceable until 2014 (whether on our 2013 taxes, filed in 2014, or on our 2014 taxes, filed in 2015 I am uncertain) if it was considered to be a tax then the whole case would have to be thrown out until someone actually paid it. Since in very plain language the statute calls it a "penalty" and not a "tax", and indeed Chief Justice Roberts makes this same point on page twelve of his opinion:

The text of the pertinent statutes suggests otherwise.The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” §7421(a) (emphasis added). Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a“penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”

Great, so it's not a tax. Or is it? It seems, for reasons unknown to me, that just because Congress doesn't call it a tax doesn't mean it isn't a tax. After all, President Obama himself declared that it wasn't a tax and rebuked George Stephanopoulos in that very interview for having the temerity to actually look up the definition of the word "tax" (h/t to Patterico for the link) and then the very first line of defense the Solicitor General threw up was that the individual mandate was allowable under the power of the Congress to "lay and collect taxes". Apparently the Court agrees.

So, even if something is not a tax for the purposes of the Anti-Injunction Act, it can still be considered a tax in order to allow the individual mandate to stand.

However, the Chief Justice has thrown a few kernels of hope both on page 2:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

and page 6:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

I (and others I have read) read those two passages in particular as meaning "just because it's technically Constitutional doesn't mean it's a good idea" and "you people put a bunch of power hungry Socialists in office and expected them to behave so clean up your own mess and leave us out of it."

I do agree that health care in America is not perfect, and that it can be better. I do not think the ACA is the best way to do it. After all, just take a look at Britain's NHS and its failures (I do have to note that the search term "NHS horror stories" was actually suggested by Google when I started typing NHS into the search term field). Here are five things things Congress could do right now that would be better than the ACA:

1. Make debts incurred by an individual as a result of not having medical insurance, or having insurance insufficient for their situation non-dischargable in bankruptcy. In other words, the medical community does not have to charge everyone more in order to make up for the deadbeats.
2. Give highest priority in estate settlements to medical expenses left behind as a result of not having insurance or having insufficient insurance. This will guarantee that much like the IRS the medical bills of a decedent are paid out prior to any other debts.
3. Give emergency room personnel and first responders sovereign immunity so long as they are acting within the scope of their duties, training, and professional certifications. This prevents idiotic tort abuse and reduces the cost of malpractice insurance for doctors and local governments. Should they be found by an independent and double-blind review board of similarly licensed and certified professionals currently practicing/working in the fields in question to have acted incorrectly or outside the scope of their training then they can be sued, but they can't be sued just because your cousin shot himself in the head and they couldn't save him and you want a payday.
4. Change all civil lawsuits to a "loser pays" system. This, before anything else, will dramatically reduce the number of lawsuits filed. Personal injury attorneys will have to look at the actual merits of the case before taking it on contingency, as opposed to threatening to bury someone in legal costs to get a settlement out of them. At the end of the day, if you lose, you pay everyone's permissible legal fees and court costs.
5. Limit damages for "emotional distress", "pain and suffering", and the like to a maximum of $100,000 per case. Not count, case. There would be no limit on actual damages rewarded, but the days of the punitive damage reward lottery would be over.

So there you have it. Yes, it's a little tl;dr, and a little involved. It's been some time since I've written anything this lengthy or involved so it may lack polish. And, I Am Not A Lawyer or a legal analyst, so I'm writing from the perspective of the ordinary citizen on the street without any special training or experience in legal matters. Chief Justice Roberts has put this back in the hands of the people. Use the power of your vote wisely. Contact your Representatives and your Senators by letter, e-mail, phone, or FAX. Let them know how you feel. Let them know that if they don't change the law, that you will work to change who represents your voice in Washington. Anyone reading this older than eighteen years and one day who has not yet registered to vote is delinquent in their civic duty and should change that in a hurry. Volunteer to help at voter registration drives. Volunteer to help at the polls. Get involved in local groups that feel the same way you do in order to learn what actions you can take  and activities you can participate in to further educate people about your views. Like I said last time, politics in America can no longer be a spectator sport.