How is Obamacare being Upheld unconstitutional?

[gatorslap]

Originally Posted by Jas09

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.

Right. The ACA could've just as easily used the word "tax" and then contained a clause specifying "This tax shall not be subject to [insert statute here]". By calling it a penalty they were implicitly doing the same thing. Perhaps the former would have been better wording, but legislation is not always worded perfectly. That's why we have a common law system.

Completely separate from whether the penalty actually falls under the power to levy taxes.

Sure, but I haven't seen a good reason why it does not. The fact that the Act doesn't use the word "tax" is not a good reason, IMO. If Congress passed a new tax tomorrow and called it a "blumpfizz", it would still be a tax.

[jtgain]

Originally Posted by gatorslap

Sure, but I haven't seen a good reason why it does not. The fact that the Act doesn't use the word "tax" is not a good reason, IMO. If Congress passed a new tax tomorrow and called it a "blumpfizz", it would still be a tax.

I agree, but as the dissent says, the wording is important when you are trying to determine whether it is a tax or a penalty.

If Congress said, that you must buy canned tuna or else pay a blumpfizz, that sounds like a penalty and not a tax, but the wording could be tortured to make it at tax. Conversely, if Congress said that there would be a 1% blumpfizz on the purchase of every alcoholic beverage. That sounds like a tax, and it is a tax no matter the wording, but you could torture the wording to say that it is a 1% penalty on purchasing alcohol.

If Congress said that you must buy canned tuna or else pay a penalty, that REALLY sounds like a penalty and not a tax, and it takes some linguistic jugging to try to say it is a tax. Likewise if Congress says you must buy canned tuna or pay a tax, that is a head scratcher because it sure sounds like a penalty for not buying tuna.

The point is that taxes and penalties are functionally equivalent (and conservatives have been saying this since Reagan). Do X or not do X and you have to pay money to the government.

The problem is, again as the dissent pointed out, the Supreme Court has a long history of applying legal terms of art to distinguish the two. Roberts cast all of that precedent aside to force this to be a tax when it is clearly a penalty for not purchasing health insurance.

[gatorslap]

Originally Posted by jtgain

I agree, but as the dissent says, the wording is important when you are trying to determine whether it is a tax or a penalty.

If Congress said, that you must buy canned tuna or else pay a blumpfizz, that sounds like a penalty and not a tax, but the wording could be tortured to make it at tax. Conversely, if Congress said that there would be a 1% blumpfizz on the purchase of every alcoholic beverage. That sounds like a tax, and it is a tax no matter the wording, but you could torture the wording to say that it is a 1% penalty on purchasing alcohol.

If Congress said that you must buy canned tuna or else pay a penalty, that REALLY sounds like a penalty and not a tax, and it takes some linguistic jugging to try to say it is a tax. Likewise if Congress says you must buy canned tuna or pay a tax, that is a head scratcher because it sure sounds like a penalty for not buying tuna.

The point is that taxes and penalties are functionally equivalent (and conservatives have been saying this since Reagan). Do X or not do X and you have to pay money to the government.

The problem is, again as the dissent pointed out, the Supreme Court has a long history of applying legal terms of art to distinguish the two. Roberts cast all of that precedent aside to force this to be a tax when it is clearly a penalty for not purchasing health insurance.

"Tax" and "penalty" are not mutually exclusive words. Have you never heard the phrase "tax penalty" before? Up until this debate I've never heard anyone talk about a government-imposed "penalty" as if that were a legally distinct concept. Paying money to the government can come in the form of a tax, a fee, or a fine. "Penalty" is just a word Congress used in the Act. The penalty is structured like a tax, not a fee or fine.

[jtgain]

Originally Posted by gatorslap

"Tax" and "penalty" are not mutually exclusive words. Have you never heard the phrase "tax penalty" before? Up until this debate I've never heard anyone talk about a government-imposed "penalty" as if that were a legally distinct concept. Paying money to the government can come in the form of a tax, a fee, or a fine. "Penalty" is just a word Congress used in the Act. The penalty is structured like a tax, not a fee or fine.

So what if not having health insurance was punished by 1 day in jail each year. Penalty? Tax? Both?

1 day in jail and a $200 fine.
Penalty, tax, or both?

$200 fine only.
Penalty, tax, or both?

Death by lethal injection
Penalty, tax, or both?

[dngnb8]

Originally Posted by MLS

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

So once ruled, they are never overturned?

[gatorslap]

Originally Posted by jtgain

So what if not having health insurance was punished by 1 day in jail each year. Penalty? Tax? Both?

Neither, that would be classifying it as a misdemeanor or felony. I guess you could call that a penalty in the abstract sense, but more specifically it's a criminal penalty, which is not the same thing at all.

$200 fine only.
Penalty, tax, or both?

Neither again, that's a fine. You really don't see the difference between a fine and the tax penalty included in the ACA?

A police officer is not going to ask to see proof of health insurance and write you a ticket if you don't have it. It is not going to be enforced by the courts. "Not having health insurance" has not been made an infraction.

[ElvisL1ves]

Originally Posted by dngnb8

So once ruled, they are never overturned?

That's covered in junior high school Civics classes.

They can change their minds, or the Constitution can be amended or the statute rewritten/repealed, but other than that, yes, SC rulings are final and definitive. That's why they're the Supreme Court.

[Really Not All That Bright]

Originally Posted by jtgain

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

They can overlap, to some degree. Cigarette taxes are just that, but they are partly punitive in intent. In this case, there is no non-monetary element, so it's hard to say it isn't a tax. Think about it: even a traffic citation carries the risk of jail time if you don't pay it.

[erislover]

Originally Posted by Stratocaster

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.

If a tax can actually be a penalty, then there must be some tipping point, even if we don't tip-toe to it (which was only illustrative that some threshold exists). Whether it is different for every tax is just irrelevant. This is how we can show that taxes and penalties are different: beyond some point (which may be different for each purpose), a tax becomes a penalty or, in the other direction, a penalty becomes a tax. If we ignore the tipping point notion, then the identification of a tax as a penalty has already in itself addressed the possibility of a penalty being a tax, and the question is resolved.

I am merely trying to make sense of the notion that taxes can be penalties but penalties can't be taxes. I find no coherence in it. If you want me to avoid making strawmen, then please offer me something that is substantive enough to show why a) the "tipping point" fundamentally doesn't exist, or b) the very fact that we've identified a tax as a penalty doesn't simultaneously point out that the penalty is or can be a tax. This is the dissent's claim, that we see one but not the other, and it doesn't make sense. Their argument is basically, "Well, no one's ever said it that way." This isn't even an argument. If the set of all taxes and the set of all penalties overlaps, then the question is simply resolved and there is nothing to say. What force of gravity would they like to cite which says we can funnel As into Bs but not the other way? Do we need a supreme court case about speeding-traps-as-revenue-generators, or parking-tickets-as-revenue-generators, to finally put the issue to rest? (How would we get it there?)

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.

Again, the tipping point argument is just there to try to make sense of the notion "a tax can be a penalty." It is an answer to my question, "How?" Any answer to "how" I can imagine simultaneously shows that a penalty is or can be a tax. I have given two answers to the "how" question, which is two more than the dissent offered, and both answer their question. In my opinion, the reason the dissent did not even attempt to address this issue is because that particular objection would vanish.

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.

Which I would agree with, if the dissent didn't point out that there is some equivalence at least sometimes. Since they did, I want to know "How?" in a way that renders their objection meaningful. I can find no such interpretation.

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.

Whether it is a coincidence or not, they put forward the position that a tax can be a penalty, and challenged others to find a case where a penalty was a tax. But that is a weird shifting of the burden. If we know how taxes can be penalties, then the question is already answered how penalties can be taxes.

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.

It seems to me this portion is particularly important, if Robert's justification was that the penalty was a tax (for the purposes of the constitution).

[jtgain]

Originally Posted by Really Not All That Bright

They can overlap, to some degree. Cigarette taxes are just that, but they are partly punitive in intent. In this case, there is no non-monetary element, so it's hard to say it isn't a tax. Think about it: even a traffic citation carries the risk of jail time if you don't pay it.

So, if I understand your position correctly, if a law prohibits something but only provides for a fine for violating it, and also provides no jail time for not paying the fine, then it becomes a tax? If a court decides that a penalty is too light, it becomes a tax?

IOW, lets say in 2017, Congress finds that people are openly flouting the ACA and just not paying the (penalty/tax) so they provide that a person not paying the ACA (penalty/tax) can be sentenced to 1 hour in jail. Does that mean that it goes back to SCOTUS and the WHOLE LAW is gone? That seems an absurd distinction to me.

Money and jail are both forms of punishment. A poor person would much rather spend a few days in jail than pay the ACA (tax/penalty).

[gatorslap]

Originally Posted by jtgain

So, if I understand your position correctly, if a law prohibits something but only provides for a fine for violating it, and also provides no jail time for not paying the fine, then it becomes a tax?

I'm not RNATB, but, you're still talking about an infraction defined in the criminal code, with citation issued by a law enforcement officer and the fine handled through the court. That's pretty different from a calculation made on your income tax filing.

[jtgain]

Originally Posted by gatorslap

I'm not RNATB, but, you're still talking about an infraction defined in the criminal code, with citation issued by a law enforcement officer and the fine handled through the court. That's pretty different from a calculation made on your income tax filing.

Right, but it is just sleight of hand. Pick something that the feds cannot constitutionally do. Instead of saying that failure to do X is a misdemeanor punishable by a fine of $50, just say that failure to do X must be reported on your tax report next year and be assessed a tax surcharge of $50, collected by the IRS. Now, the power is there. It's a silly distinction to make, is it not?

[gatorslap]

Originally Posted by jtgain

Right, but it is just sleight of hand. Pick something that the feds cannot constitutionally do. Instead of saying that failure to do X is a misdemeanor punishable by a fine of $50, just say that failure to do X must be reported on your tax report next year and be assessed a tax surcharge of $50, collected by the IRS. Now, the power is there. It's a silly distinction to make, is it not?

What if they raised everyone's taxes by $50 and if you do X you get a $50 credit? Isn't that a silly distinction to make?

[Really Not All That Bright]

Originally Posted by jtgain

Right, but it is just sleight of hand. Pick something that the feds cannot constitutionally do. Instead of saying that failure to do X is a misdemeanor punishable by a fine of $50, just say that failure to do X must be reported on your tax report next year and be assessed a tax surcharge of $50, collected by the IRS. Now, the power is there. It's a silly distinction to make, is it not?

Not really. Look at Congress' powers under Clause 5 of the 14th Amendment. If they claim to be doing something for remedial purposes, and there are some legislative findings in the record about the thing to be remedied, all is well. If they say they are remedying something and don't bother to find any examples, the enactment exceeds their power.