I've got to disagree. Under Chief Justice Roberts' opinion, what matters under the constitutional law is how the thing operates in reality, not what you call it. You can switch the labels around, play whatever political euphemism games you like, and the judges will let you get away with that. It's propaganda. Knock yourself out. Bamboozle the people. Democracy rolls on.
But in court — the message is — we look through the surface and see what is really happening. And if it is structured and functions like a tax, it's a tax.
You know, there's a saying that lawyers and lawprofs like. I think it's corny, so I haven't been saying it. I don't think that in 25+ years of teaching law I've ever said it, but I've heard it said so many times, and it's said because it's a way of saying something that lawyers and lawprofs really think about law: If it walks like a duck and quacks like a duck, it's a duck.
Googling that saying, I get — as my first result — a Wikipedia page titled "Duck test."
Indiana poet James Whitcomb Riley (1849–1916) may have coined the phrase when he wrote "when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck."The phrase may also have originated much later with Emil Mazey, secretary-treasurer of the United Auto Workers, at a labor meeting in 1946 accusing a person of being a communist....Oh! I didn't know I'd encounter so much communism!
Later references to the duck test include Cardinal Richard Cushing's, who used the phrase in 1964 in reference to Fidel Castro.
Make of it what you will. We have a democracy, and it's not going to work if we can't handle the bullshit.
The President can say it's not a tax, and it's still a tax for the purposes of analyzing the taxing power. The Supreme Court has validated lying.
Did you notice the other case that came out last Thursday also put the stamp of approval on lying? It was United States v. Alvarez — the "Stolen Valor" case. A man who lied and said he'd won the Congressional Medal of Honor was prosecuted, and he won on free speech grounds in the Supreme Court.
So Thursday in the U.S. Supreme Court was a great day for the grand old human practice of lying. From Justice Alito's dissenting opinion in Alvarez:
Respondent’s brief features a veritable paean to lying. According to respondent, his lie about the Medal of Honor was nothing out of the ordinary for 21st-century Americans. “Everyone lies,” he says. Brief for Respondent 10. “We lie all the time.” Ibid. “[H]uman beings are constantly forced to choose the persona we present to the world, and our choices nearly always involve intentional omissions and misrepresentations, if not outright deception.” Id., at 39.Everybody's always lying.
Now, grow up, pay attention, and don't get played.