You’re aware that lawyers are not permitted, by our ethical canons, to “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” ABA Model Rule of Professional Conduct 3.1.
So, it seems now that, far from “absolutely reject[ing]” the idea that the mandate is economically equivalent to taxation, they are embracing it quite openly, and if in obedience to the Rules, because they believe the argument has factual and legal merit.
But the tax charge was not aimed solely at the penalty. It went to the idea that people would have to spend money on healthcare. This mandate is the problem. The penalty just ensures that the people pay something. It’s primarily an outflow problem, not an intake one. Other than taxes there is no instance that an American MUST spend money on something simply for breathing. Obama’s defense along these lines citing car insurance is wanting, because if I want to avoid that expense, I can simply not own a car, like millions of Americans do. (Or is it "don’t do?)
I do think that the mandate can be justified, with minor changes, as a tax. But if it is a tax, then there needs to be some fair way to apply the tax. It will be easy enough to come up with a formula for those who do not have insurance through an employer, but that group poses a problem. We’ll have a tax that some people are paying to the government (for insurance or a penalty), and others do not have to pay to the government, but whose “contributions” go to private insurance companies. I don’t see how that can fly.
Again, I am not familiar with the actual legal arguments the DOJ is making, but it appears they are trying to justify forcing you to buy a product under the Commerce Clause. If that is unsuccessful, they are claiming the law is still valid because it is a tax.
President Obama is also a very good lawyer too. And I get the sense he put quite a lot of thought into the legislation well in advance of the teevee appearance. So, it’s a little weird, wouldn’t you agree, that he “absolutely rejected” the very notion his DOJ attorneys now advance.
Actually, they are defending themselves against charges that it is unconstitutional due to the commerce clause. Not optimistic about there chances there, they are seeking to render the commerce clause argument moot by arguing that it is a tax. That’s how I understand it anyway.
Completely agree with you here. I’m just not sure how this fits into the MRPC.
The tax argument appears to be a secondary argument to their Commerce Clause position. If he thought the law was completely valid under the Commerce Clause, and therefore there is no need to even approach the tax issue (except in a legal brief where you include everything), he is still in good faith, right?
Yes, they are defending the constitutionality of the law. To do that, they must give an argument why it is constitutional. Since they are citing Wickard, it appears they are advancing the argument that the health care mandate and penalty are constitutionally valid exercises of Congressional authority under the Commerce Clause. If the Court disagrees with this (and it would not be surprising if it does), the DOJ will then claim that it is a tax. So they are not really rendering the Commerce Clause argument moot, but instead advancing it and using the tax argument as a backup.
I think I am done speculating on arguments I am not familiar with because this might get pretty embarrassing. I hope someone finds a link for the brief.
My point was to scotch the claim that “Oh, they don’t really believe it’s a tax, that’s just savvy lawyering.” But perhaps that’s not what you were claiming, but then I don’t understand why people kept talking about “smart lawyering.”
I’m also pretty sure they considered the law’s constitutionality under a variety of theories early on. Most Harvard-trained, Sidley-Austin-employed attorneys wouldn’t stop their analysis once they found one argument that worked (such as a Commerce Clause analysis for HCR), but would rather evaluate all plausible approaches (and so also analyze HCR’s constitutionality under the taxation power). My point is that the Obama administration did this a long time ago, before the brief, before the TV show, probably before the campaign.
Yes, I’ve been surfing around some more and that’s the sense I get. I don’t think that will help, as a tax and a penalty are two different things. I found an interesting blog here. Make some good points. Some of which, I admit, are a bit over my head from a lawyerly standpoint. Since I am not one.
Perhaps I should not have said smart lawyering. Maybe comprehensive would have been a better choice because I was trying to get the point across that they are using multiple approaches. Thanks for explaining
But I’m kind of with **Hamlet **here. Politicians spin. They all do it, and it doesn’t shock me every time I find out they do. However, I will note that we had a thread on this earlier in the year where several lefty posters here would not concede an inch on the “it’s not a tax” claim. That thread went for quite some time. I would direct this more at them, and say: so, is it a tax now?
Kind of like the federal income tax? Many who cannot afford it don’t pay it and actually receive assistance. Is it horribly slanted to call the income tax a tax?
Nobody recieves assistance to *pay *income tax. They receive assistance because they don’t have an income – or not enough of an income which they wouldn’t pay taxes on in the first place.
