How is Obamacare being Upheld unconstitutional?

[Meeko]

I'm having an online debate. Their premise is that the Decision to uphold the ACA / Obamacare is Unconstitutional.

I would ask them to cite the Constitution, but I'm actually kinda winning the debate right now as they have conceded some points, and have gone to four letter words.

Is there a constitutional basis to repeal the personal mandate? I'm looking specifically for the letter of the law here. If there is a case for the spirit, I would like to see that as well.

[MLS]

It's constitutional because the Supreme Court says it is. End of story.

Similar to whether a baseball pitch is a strike or a ball. It ain't nothin' until the umpire says it is.

[John Mace]

Originally Posted by Meeko

I'm having an online debate. Their premise is that the Decision to uphold the ACA / Obamacare is Unconstitutional.

I would ask them to cite the Constitution, but I'm actually kinda winning the debate right now as they have conceded some points, and have gone to four letter words.

Is there a constitutional basis to repeal the personal mandate? I'm looking specifically for the letter of the law here. If there is a case for the spirit, I would like to see that as well.

You need to explain this more fully, because it sounds like your online friends are challenging the notion that the SCOTUS can rule on the constitutionality question. If so, you're not going to get anywhere.

If you want to know how it could have been ruled unconstitutional, just read the dissent by Kennedy.

[jayjay]

Originally Posted by John Mace

You need to explain this more fully, because it sounds like your online friends are challenging the notion that the SCOTUS can rule on the constitutionality question. If so, you're not going to get anywhere.

I can't really blame them for that takeaway...an actual elected Representative, conservative superstar Paul Ryan, said exactly the same thing. They're WRONG, of course, but they've likely been led astray. They probably didn't get there on their own.

[Linden Arden]

Obamacare is an unconstitutional government takeover of all healthcare with death panels and the largest tax increase in US history with 20,000 new IRS agents to harass you.

Reality be damned.

[Dangerosa]

There IS a case, four of nine justices thought that case was valid.

Five of nine judges thought it was constitutional.

Once they vote, its a done deal unless the constitution is amended (and since the grounds for constitutionality were that it is a tax, and the government has the right to levy taxes, I'm not sure how you are going to do that), or unless in a future case, they were to overturn themselves (ala Plessy v. Ferguson) - but that wouldn't be THIS law - this one is done.

[John Mace]

Originally Posted by jayjay

I can't really blame them for that takeaway...an actual elected Representative, conservative superstar Paul Ryan, said exactly the same thing. They're WRONG, of course, but they've likely been led astray. They probably didn't get there on their own.

I would be interested in seeing the quote from Ryan.

[Oldeb]

It was Senator Rand Paul, not Paul Ryan.

Originally Posted by Rand Paul

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so.

Edit: He repeated similar statements and didn't retract that one in a later editorial.

[erislover]

Congress seems to have a history of being very uppity. As a group, they seem unable to accept that there are two other branches of government with independent authority. McCarthyism comes to mind. Though there have been upsetting SCOTUS cases here and there, of the three branches the Court has always seemed the most restrained to me, followed (distantly) by the executives.

[jayjay]

Originally Posted by John Mace

I would be interested in seeing the quote from Ryan.

Yes, my mistake. It was Rand Paul, not Paul Ryan. All the wingnuts look alike to me...

[Saint Cad]

My take is that the penalty/tax is unconstitutional since it is not a tax on income but an indirect tax. Apparently SCOTUS disagrees and to be honest, I don't know why an indirect tax would be unconstitutional either.

[erislover]

Originally Posted by Saint Cad

My take is that the penalty/tax is unconstitutional since it is not a tax on income but an indirect tax. Apparently SCOTUS disagrees and to be honest, I don't know why an indirect tax would be unconstitutional either.

I feel like this kind of argumentation leads to the weirdness I stumbled across in Scalia's dissent. He argued something like, "We can find cases where A=B but no cases where B=A." Of course he didn't say "A=B" he said "a tax is a penalty". He did manage to fall short of saying "it depends on what your definition of 'is' is." Can the government give a tax break to people that have children? Or is this a penalty for people who don't have children? To me these things are absolutely identical and if there is different legal language (tax / penalty) it would be related to things like "what other legislation applies," for example the Anti-Injunction act.

So Roberts basically ruled, as far as my reading goes, "It's a tax, but for the purposes of the anti-injunction the word 'penalty' was used so other tax-like issues didn't arise." And it was cast as a penalty for not having healthcare, but this is operationally equivalent to a tax break for having healthcare.

Which doesn't suggest in itself that it is constitutional, mind, but would you like to eliminate all such encouragements embedded in the tax code?

[Lord Feldon]

Some people think that judicial review itself is unconstitutional. You cannot win a debate with these people; the reality you live in does not exist to them.

[BrainGlutton]

Originally Posted by Meeko

I'm having an online debate. Their premise is that the Decision to uphold the ACA / Obamacare is Unconstitutional.

I would ask them to cite the Constitution, but I'm actually kinda winning the debate right now as they have conceded some points, and have gone to four letter words.

Is there a constitutional basis to repeal the personal mandate? I'm looking specifically for the letter of the law here. If there is a case for the spirit, I would like to see that as well.

Of course there is, if Congress does it, because Congress is the body that repeals legislation and has the constitutional authority to do so. The SCOTUS cannot repeal, but it can void or overturn legislation by ruling it unconstitutional. What you're really asking here is whether the SCOTUS' decision is constitutionally correct. Well, legally and constitutionally, it is correct, just because the SCOTUS says so. Like the umpire said, "Some is balls, and some is strikes, but until I calls 'em, they ain't nuttin'!" Which does not end the debate, of course, I'm just putting it in its proper perspective for you. Anyone is free to argue for a constitutional interpretation at odds with the Supreme Court's.

[nogravity]

Originally Posted by Lord Feldon

Some people think that judicial review itself is unconstitutional. You cannot win a debate with these people; the reality you live in does not exist to them.

These are the kind of people that think rock always wins.

[Stratocaster]

Originally Posted by erislover

I feel like this kind of argumentation leads to the weirdness I stumbled across in Scalia's dissent. He argued something like, "We can find cases where A=B but no cases where B=A." Of course he didn't say "A=B" he said "a tax is a penalty". He did manage to fall short of saying "it depends on what your definition of 'is' is." Can the government give a tax break to people that have children? Or is this a penalty for people who don't have children? To me these things are absolutely identical and if there is different legal language (tax / penalty) it would be related to things like "what other legislation applies," for example the Anti-Injunction act.

That's not how I read the dissent. I'm no legal scholar, and consequently I am in no position to confirm or deny, but I read the dissent to say that penalties and taxes are very different things under the law. Obamacare goes at length to frame this as a penalty, not a tax, and the dissenting opinion says that it fits the definition--i.e., something is defined as a requirement (the mandate) and there is a fine / penalty that's levied if you don't comply. They pointed out there is no basis or precedent for a fine transforming itself into a tax by virtue of its materiality. They likewise pointed out that the law could well have been crafted to be completely constitutional, had they not avoided the dreaded T word. But they didn't. Seemed perfectly logical to me, the dissenting opinion.

The majority opinion seems a bit incoherent. It's a tax or it isn't. If it is, then the anti-injunction rule means they can't rule on it. If it isn't, then the mandate is unconstitutional. There may be a way to find the coherence in that, but it's beyond my simple mind.

So Roberts basically ruled, as far as my reading goes, "It's a tax, but for the purposes of the anti-injunction the word 'penalty' was used so other tax-like issues didn't arise." And it was cast as a penalty for not having healthcare, but this is operationally equivalent to a tax break for having healthcare.

Yes, I agree, that's how it was framed. I can't make sense of that, though. I agree with the dissent--ISTM as well that SCOTUS was forced to rewrite the law to shoehorn it into a constitutionally acceptable form, something they shouldn't be doing. That said, I am very pleased that the commerce clause argument was dismissed. That would have been disastrous. As it is, I find it a decision I disagree with, but not ridiculously illogical (like, say, Kelo), other than the non sequitur I can't resolve noted above (it's a tax, or it isn't).

Which doesn't suggest in itself that it is constitutional, mind, but would you like to eliminate all such encouragements embedded in the tax code?

As I read it, again, it's a pretty technical distinction, but an important one. We can all agree that the financial effects are identical, but as a matter of law, a fine is not the same as a tax. Feels like Roberts forced this one, but at least he did on narrow terms.

[erislover]

Originally Posted by Stratocaster

That's not how I read the dissent.... They pointed out there is no basis or precedent for a fine transforming itself into a tax by virtue of its materiality.

What they pointed out was that they saw taxes so onerous as to be considered a penalty, but no penalty so light as to be considered a tax. A equals B, but B doesn't equal A? What basis does removing the symmetrical property of identity have? In the example they gave in the dissent, it wasn't "rewriting the law" to consider a tax a penalty? It's totally incoherent.

It's a tax or it isn't. If it is, then the anti-injunction rule means they can't rule on it. If it isn't, then the mandate is unconstitutional. There may be a way to find the coherence in that, but it's beyond my simple mind.

What is the difference between a tax and a penalty? Common political discourse now frames all taxation as penalties. E.g.: "Why should I be punished for being successful?" If there is a real distinction, it would be in laws like the Anti-Injunction Act.

That said, I am very pleased that the commerce clause argument was dismissed.

I'm not sure I agree. If they have the power, they have the power, and everyone seems to be claiming that they could have made the operationally equivalent maneuver just by using the word "tax". If there's a limit here, I don't see it.

[Really Not All That Bright]

Originally Posted by Stratocaster

The majority opinion seems a bit incoherent. It's a tax or it isn't.

It seems incoherent, but it isn't. The Anti-Injunction Act only applies to things that Congress expressly identifies as taxes (because it's worded in exactly that manner). The constitutional taxing/spending power applies to anything that is functionally a tax. Congress didn't call the mandate penalty a tax, but it works like one. Thus, it both isn't a tax for statutory construction purposes and is a tax for constitutional construction purposes.

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit.

[gamerunknown]

Originally Posted by erislover

What basis does removing the symmetrical property of identity have?

I'm guessing the argument was more along the lines of a set. A is a member of set B, but a member of set B is not necessarily A. I don't get how it applies to this case though.

Originally Posted by Saint Cad

My take is that the penalty/tax is unconstitutional since it is not a tax on income but an indirect tax.

Some Libertarians argue income tax is unconstitutional because the president arguing in favour for it claimed the top bracket would never exceed 2% and that not all states were validly ratified in the union at the time of signing. Or something.

[Stratocaster]

Originally Posted by erislover

What they pointed out was that they saw taxes so onerous as to be considered a penalty, but no penalty so light as to be considered a tax. A equals B, but B doesn't equal A? What basis does removing the symmetrical property of identity have? In the example they gave in the dissent, it wasn't "rewriting the law" to consider a tax a penalty? It's totally incoherent.

What dissent did you read? Here's what I was referring to:

Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

I'm not getting where you're inferring the syllogism you seem to think they constructed. More from the dissent:

When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).

I'd like to see a rebuttal to the dissent, because the majority opinion doesn't seem to do the trick, and the dissent seems logically formulated to me.

What is the difference between a tax and a penalty? Common political discourse now frames all taxation as penalties. E.g.: "Why should I be punished for being successful?" If there is a real distinction, it would be in laws like the Anti-Injunction Act.

Common discourse doesn't invalidate terms of art in law. As noted in the cite provided, there is a distinction between a penalty and a tax as a legal term. There may well be room for debate where that boundary lies, but there is a boundary.

I'm not sure I agree. If they have the power, they have the power, and everyone seems to be claiming that they could have made the operationally equivalent maneuver just by using the word "tax". If there's a limit here, I don't see it.

No, they have the power only based on a sound constitutional foundation. I don't think they had one at all here, but I am at least glad SCOTUS didn't decide the commerce clause provided the authority, since that basically would have granted Congress the power to compel a citizen to do virtually anything it could tenuously connect to interstate commerce, even when a citizen was not engaged in said commerce.

[Stratocaster]

Originally Posted by Really Not All That Bright

It seems incoherent, but it isn't. The Anti-Injunction Act only applies to things that Congress expressly identifies as taxes (because it's worded in exactly that manner).

Thanks, that clarifies. I will now restrict my objection to the fact that the majority decision was a stretch, not for any incoherence I had previously detected.

[Marley23]

They can argue the decision was wrong just like I can say I think a bunch of other Supreme Court decisions were wrong. But the Supreme Court is the last word on this issue. If they say it's Constitutional, than for practical purposes it is unless they make a different ruling later.

[Stratocaster]

Originally Posted by erislover

What they pointed out was that they saw taxes so onerous as to be considered a penalty, but no penalty so light as to be considered a tax. A equals B, but B doesn't equal A? What basis does removing the symmetrical property of identity have? In the example they gave in the dissent, it wasn't "rewriting the law" to consider a tax a penalty? It's totally incoherent.

I think I understand your point now. Like it or not, they were referring to precedent. A tax could be so large that it was deemed to be intentionally coercive, to serve a purpose other than "to provide for the support of government." In other words, a penalty disguised as a tax, with the primary intention of discouraging something (not principally to support government spending).

The reverse, ISTM, does not logically follow. The smaller a penalty becomes, the less effective / coercive it is, that's true. But it doesn't somehow turn into a tax if its primary purpose was never that of a tax.

[Really Not All That Bright]

Well, according to well established precedent, it does.

In “passing on the constitutionality of a tax law,” a court is “concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.”

Nelson v. Sears, Roebuck & Co., 312 U.S. 359

[Stratocaster]

That doesn't seem to contradict their principal point, though, unless I'm misunderstanding yours. In practical operation, this law identified a requirement and imposed a penalty for those who did not comply. We can call it whatever we want, but it's a penalty, not a tax, as a matter of practical operation.

[erislover]

Originally Posted by Stratocaster

The reverse, ISTM, does not logically follow.

So dollar by dollar, we necessarily at some point pass from a tax to a penalty; but, take away dollar by dollar, we could never move from a penalty to a tax? Is this a reasonable position? Can you think of other areas in life where this is the case? (Not a rhetorical question. Maybe I'm missing something wicked obvious.)

The smaller a penalty becomes, the less effective / coercive it is, that's true. But it doesn't somehow turn into a tax if its primary purpose was never that of a tax.

But we've already established that the primary purpose doesn't matter. We can whisk it away with a quick appeal to some other nebulous concept like "being onerous" or "coercive".

[Stratocaster]

Originally Posted by erislover

So dollar by dollar, we necessarily at some point pass from a tax to a penalty; but, take away dollar by dollar, we could never move from a penalty to a tax? Is this a reasonable position? Can you think of other areas in life where this is the case? (Not a rhetorical question. Maybe I'm missing something wicked obvious.)

I don't think it's a mathematical exercise so much as one of intent. Or inferred intent. Something doesn't "trip the penalty meter" at a certain dollar amount. A high tax could just be a high tax, one that was stupidly set too high. But a "tax" could be intentionally set at a level that lets it serve as a penalty.

Don't think of it as a process of slowly raising a tax until it becomes a penalty. Most typically it would be set high at the start, for the primary purpose of coercing, driving behavior away from what the taxing authority could not otherwise make unlawful. An end-around to render something "illegal" that is not really illegal. Or so the courts have decided in some cases. You could envision such a scenario, right?

A penalty set too low is stupid, that's true. But if the penalty was installed to coerce, to drive behavior, etc., then it's a penalty. Maybe an ineffective one, but a penalty nonetheless. If its purpose wasn't principally to support government spending, it ain't a tax.

But we've already established that the primary purpose doesn't matter. We can whisk it away with a quick appeal to some other nebulous concept like "being onerous" or "coercive".

The primary purpose does matter. "[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act."

[erislover]

Originally Posted by Stratocaster

But a "tax" could be intentionally set at a level that lets it serve as a penalty.

Yes: some taxes are penalties. Necessarily, then, there are some penalties that are taxes. I know of no principle which would forbid this conclusion, except that there is some crossover point, where we would have misnamed a penalty a tax. If there is a crossover point, then we can pass it in either direction, from tax to penalty and back again.

You could envision such a scenario, right?

Of course, the dollar-by-dollar comment is just to flesh out the underspecified nature of "taxes" and "penalties." Either taxes and penalties can be identical, in which case the identification of a tax as a penalty has resolved the question of whether a penalty can be a tax; or, there is a scale from tax to penalty, in which case we could conceivably slide along it. Either scenario resolves the dissent's problem. What is the third way which renders the dissent sensible?

A penalty set too low is stupid, that's true. But if the penalty was installed to coerce, to drive behavior, etc., then it's a penalty. Maybe an ineffective one, but a penalty nonetheless. If its purpose wasn't principally to support government spending, it ain't a tax.

Then "sin taxes" really penalties... penalties so slight as to be taxes, and the question is still resolved against the dissent's queer claim.

The primary purpose does matter. "[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act."

Then a tax could never be a penalty.

[Stratocaster]

Originally Posted by erislover

Yes: some taxes are penalties. Necessarily, then, there are some penalties that are taxes. I know of no principle which would forbid this conclusion, except that there is some crossover point, where we would have misnamed a penalty a tax. If there is a crossover point, then we can pass it in either direction, from tax to penalty and back again.

I don't think there's a crossover point so much as there is a particular intention, and that intention is most easily inferred when the penalty disguised as a tax is onerous. Someone trying to sneak through a penalty-disguised-as-a-tax who set that "tax" too low might well go undiscovered. But he also wouldn't have set up much of a penalty. Too bad for him. The point is this: a tax is intended to collect money for government spending, and a penalty is intended to punish behavior that the government wants prohibited. Courts have deemed certain onerous taxes as being penalties because of their materiality. I would think a poll tax might be such a thing. An evil-intentioned poll tax set too low doesn't as effectively achieve its objective, but it's still a penalty if that's what it's designed to be.

Of course, the dollar-by-dollar comment is just to flesh out the underspecified nature of "taxes" and "penalties." Either taxes and penalties can be identical, in which case the identification of a tax as a penalty has resolved the question of whether a penalty can be a tax; or, there is a scale from tax to penalty, in which case we could conceivably slide along it. Either scenario resolves the dissent's problem. What is the third way which renders the dissent sensible?

The notion that a penalty is different than a tax is well-established in law, so the dissent is sensible in that regard. They identify that Obamacare shares the attributes of the legal understanding of a penalty--i.e., it identifies a requirement (the mandate) and sets a punishment for those who don't comply. Still sensible. It adds color to the argument by pointing out that in law there is precedent for a tax being deemed a penalty, but literally none for the opposite. You may disagree with the logic of all prior legal decisions that make that statement so, but that is what it is.

But I still see nothing illogical in it, even if it's not necessary for their argument. Taxes don't automatically become penalties because they are onerous. But a subset of onerous taxes are those that were designed specifically to penalize people. Penalties don't become taxes because they are set low. They just become less-effective penalties.

Then "sin taxes" really penalties... penalties so slight as to be taxes, and the question is still resolved against the dissent's queer claim.

I think many sin taxes are penalties. But if they are set low, they are poorly designed sin taxes.

Then a tax could never be a penalty.

Why not? If it's designed to discourage behavior, it's a penalty, whatever we call it.

[MyFactCheckBounced]

Originally Posted by Saint Cad

My take is that the penalty/tax is unconstitutional since it is not a tax on income but an indirect tax. Apparently SCOTUS disagrees and to be honest, I don't know why an indirect tax would be unconstitutional either.

This won't square well with the crackpots who come out of the woodwork regularly to declare that an income tax is unconstitutional.

I don't quite understand the reasoning behind either notion, since the Constitution vests in the Federal government the right -- yes, the right -- to tax. Read Alexander Hamilton writing as "Publius" in Federalists 30-36 for the rationale behind an unlimited right of the central government to tax.

As to the bit of the Constitution you want for the government's right to tax, it's Article 1, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises shall be
uniform throughout the United States;

Now, we have decided that a tax on alcohol (for example) need not be levied on non-drinkers. In other words, so long as you don't make it (from the Congressional level) 5% in Michigan and 10% in Montana, it's fine to tax alcohol, even though non-drinkers do not pay the tax.

It strikes me that a tax on would-be free riders is just fine, as the second clause (after the semi-colon) is a matter of uniformity state-to-state, not any demand that all taxes be flat taxes and equally tax people regardless of their behavior.

What is the argument for unconstitutionality?

And what exactly is the rightist constitutional argument for getting rid of the entirety of the Judiciary (in selected cases,) substituting the phrase "A bunch of internet crackpots will be the supreme court of the land" or "One or another whack-job rightist candidate will be the supreme court of the land"?

When something's voted into law by the Congress, signed by the President, then upheld by the Supreme Court, it seems a bit strange to call it -- still -- unconstitutional. The courts decide that, not random internet crackpots. There's no "internet crackpot review" written into the Constitution. There's Judicial Review.



Bucket o' facepalm.

[asterion]

Originally Posted by jayjay

Yes, my mistake. It was Rand Paul, not Paul Ryan. All the wingnuts look alike to me...

Paul Ryan looks like Eddie Munster. Rand Paul looks like...well the Internet is split, but possibly Bilbo Baggins, Tony Hayward, or Rick Astley.

[erislover]

Originally Posted by Stratocaster

It adds color to the argument by pointing out that in law there is precedent for a tax being deemed a penalty, but literally none for the opposite. You may disagree with the logic of all prior legal decisions that make that statement so, but that is what it is.

I don't disagree with it. This is not what I am disagreeing with.

But I still see nothing illogical in it

Because you didn't get to the illogical part.

Penalties don't become taxes because they are set low. They just become less-effective penalties.

Well, I think this doesn't really make sense. This one-way road from tax to penalty seems more striking than the position the dissent is disagreeing with.

If it's designed to discourage behavior, it's a penalty, whatever we call it.

All taxes except poll taxes discourage behavior.

[Stratocaster]

Originally Posted by erislover

Because you didn't get to the illogical part.

I guess I'm not making my point clearly enough (though you may well still disagree). My point is that your rebuttal is based on what you see as the faulty predicate, "There is a $$$ tipping point that transforms any tax into a penalty." That is indeed faulty and also is a straw man. There is no unavoidable tipping point, that level (perhaps different for each tax) where in every instance a revenue collected transforms from tax into penalty. Taxes can be onerous and not a penalty. I consider Federal income taxes at once onerous and wasteful. But I don't deny Congress has the power to levy such a tax, and to call it a tax, since they basically just want the dough so they can spend it.

A subset of onerous "taxes" are those that were specifically installed as law to serve as a penalty. The "tax's" revenue collection aspect is secondary. But not all onerous taxes are penalties (as the legal term of art) and therefore your assumption that since there's always some point up the scale that changes a tax into a penalty (there isn't), there must be that same point on the return down the scale that changes a penalty into a tax. A tax is to collect revenue that the government can spend. A penalty is to impose a punishment. The fact that we might be able to point to separate instances where each respectively cost a citizen $50 doesn't make them in any other way equivalent.

All taxes except poll taxes discourage behavior.

True. But as a secondary and incidental outcome. The reason we have taxes (the dissent would argue) is because the government needs the dough. Any other consequence is coincidence.

BTW, I don't think this particular point provided the bulk of the weight in the dissenting opinion, not even close to it. They could have omitted this portion entirely, I think, and their logic was still sound.

[InterestedObserver]

Originally Posted by Dangerosa

There IS a case, four of nine justices thought that case was valid.

Five of nine judges thought it was constitutional.

Once they vote, its a done deal unless the constitution is amended (and since the grounds for constitutionality were that it is a tax, and the government has the right to levy taxes, I'm not sure how you are going to do that), or unless in a future case, they were to overturn themselves (ala Plessy v. Ferguson) - but that wouldn't be THIS law - this one is done.

Not exactly. Roberts' argument was that the penalties associated with not purchasing health insurance under the individual mandate COULD BE "characterized as a tax", and that as a result, fell under Congress' constitutional taxing authority.

His actual words: "Congress’s choice of language…does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance.”

"...DOES NOT REQUIRE reading...as a punishment...MAY ALSO BE READ AS imposing a tax".

Not "IS a tax."

He went on: “...if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause." (which he found it does). And crucially, "...“[a] tax on going without health insurance is not like a capitation or other direct tax … It therefore need not be apportioned so that each State pays in proportion to its population.”

Note the word IF in that first sentence.

Translation: NOT necessarily a tax but COULD be characterized as one for the purposes of deciding Congressional/constitutional authority to impose it.


Fines for not having valid automobile insurance are not, by any reach of the imagination, taxes. Neither are parking tickets. Both can be avoided/opted out of simply by having valid insurance coverage or parking legally. Both are PENALTIES.

[Saint Cad]

Originally Posted by erislover

What is the difference between a tax and a penalty? Common political discourse now frames all taxation as penalties.

Apparently who collects it if I'm reading the MajOp right. Let's take an example that we know is constitutional - state-required auto insurance in California. If you are caught without insurance and you pay the fine to the DMV it is a penalty. If you pay it to the Franchise Tax Board it is a tax.

[drewtwo99]

Imho when someone says a given law is unconstitutional, they are saying that if they were a supreme court Justice, they would vote to overturn it. So when Rand Paul and others say that they still believe the law is unconstitutional, despite the supreme court majority opinion, they are just saying they disagree with that opinion. They aren't recommending that the everyone should start acting ike the law has been overturned.

[Northern Piper]

Originally Posted by MyFactCheckBounced

I don't quite understand the reasoning behind either notion, since the Constitution vests in the Federal government the right -- yes, the right -- to tax. Read Alexander Hamilton writing as "Publius" in Federalists 30-36 for the rationale behind an unlimited right of the central government to tax.

As to the bit of the Constitution you want for the government's right to tax, it's Article 1, Section 8:

It's the underlined passage that relates to income tax. The drafters of the Constitution were concerned that Congress might be dominated by particular states, who would then impose heavy taxation in a non-uniform fashion on the smaller states. The underlined passage prevented that, by providing that taxes had to be uniform throughout the US.

Then, in 1895, the Supreme Court held, in Pollock v. Farmers' Loan & Trust Co., that income taxes were not uniform, because the incidence of the tax varied among the states, depending on the income levels of individuals. The federal income tax was therefore unconstitutional.

That in turn resulted in the Sixteenth Amendment, permitting income taxes:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

However, that amendment only does away with the uniformity requirement for income taxes; it still applies to other federal taxes, which must be apportioned uniformly. The argument appears to be that the health insurance penalty/tax is not a tax on income, and therefore has to comply with the uniformity/apportionment requirement.

[Northern Piper]

Oops - just realised I forgot to quote the other part of the Constitution that the SCOTUS relied on in striking down the income tax:

Originally Posted by Article I, Section 9, Clause 4

No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.

so federal direct taxes have to be proportional to the population of each state. the 16th Amendment changed that requirement for income taxes.

[twickster]

Moved Elections --> GD.

[zamboniracer]

Originally Posted by InterestedObserver

Not exactly. Roberts' argument was that the penalties associated with not purchasing health insurance under the individual mandate COULD BE "characterized as a tax", and that as a result, fell under Congress' constitutional taxing authority. (emphasis added).

Excuse the nitpick, but Roberts wasn't making an argument. He was making a ruling, a decision. Judges/Justices don't make arguments. The lawyers arguing in front of them do.

[fumster]

Originally Posted by drewtwo99

Imho when someone says a given law is unconstitutional, they are saying that if they were a supreme court Justice, they would vote to overturn it. So when Rand Paul and others say that they still believe the law is unconstitutional, despite the supreme court majority opinion, they are just saying they disagree with that opinion. They aren't recommending that the everyone should start acting ike the law has been overturned.

No, they leave that to the Governor of Florida.
.

[jayjay]

Originally Posted by fumster

No, they leave that to the Governor of Florida.
.

Well, the undead DO have some special abilities, after all...

[jtgain]

Originally Posted by InterestedObserver

Fines for not having valid automobile insurance are not, by any reach of the imagination, taxes. Neither are parking tickets. Both can be avoided/opted out of simply by having valid insurance coverage or parking legally. Both are PENALTIES.

You can avoid the health care (tax/penalty) by simply having valid health insurance coverage. So, it's a penalty, right?

If no, then how can we not construe failure to have auto insurance as a tax?

After reading the whole opinion, I still believe the dissent got it right. Roberts said that it COULD be construed as a tax, and since we have to take the interpretation that makes it constitutional instead of unconstitutional, we must proceed as if it was a tax.

That opinion completely ignores the idea that Congress didn't impose the (penalty/tax) in order to raise revenue for the treasury. They did it to coerce people into buying health insurance. That part was obvious. They even referred to it as a penalty in the law.

As the dissent said, you can try to make it constitutional, but when it ain't there, it just ain't there. This was written as a penalty all along, albiet a very small penalty for political compromise purposes. It's absurd to say that its a tax just because it is so small.

Penalties or taxes can be severe, moderate, or slight. Penalties can come without civil or criminal consequences, and can be collected by the IRS. A penalty NEVER becomes a tax because of a minimal punishment (at least not until last Thursday) and it certainly doesn't become one when Congress bent over backwards to call it a penalty.

And it is a one way ratchet. A tax can be so onerous that it is really a penalty when the intent is shown that it was not to raise revenue but to regulate an activity. The logic doesn't work the other way.

If a person believes that the speeding fines in his locality are too lax or too low, would he seriously refer to it as a tax on speeding? When the government collects less revenue than it "should" it is a tax? There is no logic behind this position. A parking fine of $500 is a penalty, but if it's $10 it's a tax?

[Really Not All That Bright]

Originally Posted by jtgain

That opinion completely ignores the idea that Congress didn't impose the (penalty/tax) in order to raise revenue for the treasury. They did it to coerce people into buying health insurance.

Of course it ignores it. It's well settled that the primary purpose of a tax need not be revenue generation, as long as it's a purpose.

[jtgain]

Originally Posted by Really Not All That Bright

Of course it ignores it. It's well settled that the primary purpose of a tax need not be revenue generation, as long as it's a purpose.

I'm not trying to be snarky, but tell me the difference between a tax and a penalty. Are they synonyms?

[Jas09]

I know it wasn't addressed to me, but there is at least one very obvious distinction directly from this case - a tax is subject to the Anti-Injunction Act but a penalty is not.

[magellan01]

Originally Posted by InterestedObserver

Fines for not having valid automobile insurance are not, by any reach of the imagination, taxes. Neither are parking tickets. Both can be avoided/opted out of simply by having valid insurance coverage or parking legally. Both are PENALTIES.

And no one is forced to run the risk of paying them. Just don't own a car as tens of million of Americans do not. Also, those penalties are not collected by the IRS or state tax boards. You're comparing apples and pineapples.

[Jas09]

Originally Posted by magellan01

And no one is forced to run the risk of paying them. Just don't own a car as tens of million of Americans do not. Also, those penalties are not collected by the IRS or state tax boards. You're comparing apples and pineapples.

What happens if I fail to file a personal income tax return? Don't I pay a penalty? And who collects it?

[gatorslap]

Originally Posted by Jas09

I know it wasn't addressed to me, but there is at least one very obvious distinction directly from this case - a tax is subject to the Anti-Injunction Act but a penalty is not.

The Anti-Injunction Act is not irrevocable. If Congress wishes to pass a new tax that is exempt from said Act, there's no reason they can't.

[Jas09]

Originally Posted by gatorslap

The Anti-Injunction Act is not irrevocable. If Congress wishes to pass a new tax that is exempt from said Act, there's no reason they can't.

That's a good point, and pretty much exactly what the majority said, right? That since Congress didn't use the word "tax" they didn't mean for the AIA to apply. Completely separate from whether the penalty actually falls under the power to levy taxes.