If I don’t buy the broccoli, I will still have to eat somewhere. Eating less-healthy food shifts the (inevitable healthcare) costs onto others.
If I don’t buy the car, I will still have to get around. Taking the (government-subsidized) bus shifts the costs onto others.
If I don’t buy clothes, I will still have to get them somewhere. Depending on charity shifts the costs onto others.
If I don’t buy toilet paper, I will still have to get it somewhere. Taking extra from public restrooms shifts the costs onto others.
There are lots of goods and services one receives before paying. Would all regulations making it illegal to receive goods or services without paying first pass muster in your view?
Well, no. It was Wickard’s regulation limiting the wheat grown that was at issue; Filburn’s failure to purchase wheat was not punished. (It was the REASON that Filburn’s regulation was reached by the Commerce Clause.) This is a distinction, of sorts, but I agree it’s not a principled distinction.
However, they could easily – and “properly” overrule Wickard. Why not? They overruled Bowers. Why not Wickard?
What they can’t (or shouldn’t really) do is fail to overturn Wickard but still scuttle the HCR bill.
Bowers was bad law, Wickard isn’t. (Though I don’t expect you to agree on that one and I am not sure I do).
Bowers was only on the book for 17 years, Wickard has lasted over 68 years. The value of stare decisis increases over time.
Overruling Bowers had minimal collateral effect; overruling Wickard would have broad effect.
Bowers was about the criminalization of a fundamental right; *Wickard *isn’t, and so there isn’t the same moral imperative to overrule Wickard. It is right that the Court grants more leeway to the government in economic areas, and less in areas of rights seen as protected by the Bill of Rights.
Wickard’s reversal would have distinctly negative consequences; while it may be legally right to repeal it, that’s not a possibility until the Slaughterhouse Cases can be repealed, otherwise we end up with no federal Civil Rights legislation, and it is better we suffer the indignity of Wickard remaining on the books than it is we go back to Jim Crow.
There’s plenty of arguments why, some of which we have agreed on already.
You’re dodging the point. It’s not a simple matter of when the person gets your money, whether before or after, but rather an assurance that you CAN pay for it. Car dealers will let you have the car even though you don’t pay for it all up front, that’s up to them. But car dealers are not required to give you a car if you want it. Grocers may take your promise to pay in the future when they give you their broccoli. But the government doesn’t require them to give you broccoli. And if you don’t have the money to get a car or broccoli, the government doesn’t require them to give it to you.
You don’t have to buy health insurance, you’re more than able to refuse to get it and instead pay the tax in case you can’t pay for your care later. But, since you will be provided health care whether or not you can pay, the government isn’t violating your rights by requiring that you be able to pay for it.
First of all, it’s not a tax, it’s a penalty. And, yes, the government is violating your rights by forcing you to purchase something. With the deal being, if you don’t you have to pay a penalty. And if you don’t pay the penalty, guess what, you could eventually be locked up.
Tell me, can the government mandate that I pay a gym membership? Why or why not?
No, I misunderstood what you were getting at. “Dodging” would be if, say, I ignored half of your post.
Phrased that way, I take your point, and rephrase:
In your view, should the government have a blanket right to prevent the sale of goods or services if they do not think the customer will be able to pay?
It’s not a tax. Correct me if I’m wrong about the law here, but in public, the administration has been very, very clear that it is not a tax, but rather a penalty, issued for non-compliance with the law.
Not sure I follow you. They have laws preventing theft of property, so you can’t take something that’s not yours without paying for it.
The name you want to call it is simply politics. If you refuse to pay, you are penalized by having to pay money to the government, so it’s a tax. It’s not a tax in that it’s completely avoidable, it’s not meant as a fundraising mechanism. It’s a tax in that the IRS takes care of some of the collection. But it’s not a tax in that there can be criminal penalties imposed (at least in one version, I honestly haven’t checked that on the enacted bill. Feel free to if you want to). Whatever word games you want to play with it, it is what it is. I’m not so well versed in tax law or the taxing power of the Constitution to offer a definitive answer.
Please explain to me how gym membership is a necessity. And how gym-goers in general end up paying for your gym membership if you don’t. Thanks!
A better question could be could the government allow you to deduct your gym membership from your taxes? It would almost be like having a tax on not having a gym membership! :eek:
I’m pretty sure you’re wrong about that. My understanding is that Congress took away the power of the IRS to criminally punish people who didn’t pay it. If you think otherwise, I’d love to know why.
Is your gym required by law to give you a membership? Is it required to let you use it’s facilities when you need to, and then recouping those payments from other gym members? Will you, with a very high degree of likelihood, be forced to go to the gym someday? By not getting that gym membership, will you and people like you, be having a large effect on interstate commerce? Is it necessary and proper as part of the regulation of the health care system that you can be required to get a gym membership? I think the answer to those questions are “no”, but your mileage my vary.
Exactly as it says. As I understand it, you’re saying that the federal government has the right to insert themselves into otherwise voluntary arrangements if they hold that one party will be unlikely to be able to repay, causing costs to be passed onto society. If so, is that true across the board, or just in health care?
Not at all. If it’s a tax, then there’s no question about the government’s authority to do it. The insistence that it’s not a tax means it has to be justified on the basis of the commerce clause (or something else).
Ummmm, no, I’m not saying that. Unless there is a huge clamor of hospitals just wanting to give health care to people for free and being refused by the government, it’s not even close to to what I’m saying. It helps to remember that the mandate is, by and large, for the benefit of the hospitals and treatment facilities. They are required by law to treat people, and will be required by law to treat even more people, especially those with pre-existing conditions. The individual mandate is an attempt to make sure they get their money. A single payer system might have done that much more easily, but … well that didn’t happen.
Again, you’re missing the point. The word “tax” means different things to different people at different times. Obama clearly doesn’t want it to be called a tax so that the right doesn’t scream and yell “TAX INCREASE!!!” Use whatever word for it you like, it makes no nevermind to me. If you’re using it as a term of art for purposes of Constitutional analysis under the taxing and spending clause, I think it is.
Right, matter of law, that’s what I was thinking of. What if the appeals court rules he was, in fact, wrong, that if the facts the defense alleged were true, it was not a matter of law? What happens then? Let’s say this guy, and I’m not just asking about this health care law, I’m more interested about perversions of justice here, what if this guy ruled that, say, as a matter of law, the federal government does not have the right to impose an income tax? Which is about as blatantly wrong as I can think of.
No. The Court should, to the contrary, strenuously resist the federal government’s attempts to accrete power to itself in contravention of the Constitution’s limits.
Hey - it’s not my argument. I give very little weight to stare decisis, but then again, unless I have missed something major, I’m not a Supreme Court Justice. Personally, if it’s wrong, it’s wrong. Tradition shouldn’t be defended for tradition’s sake. But I’m not a conservative.
Fair enough, except it could be said that the federal government has already accreted that power. The stable door is open. The horse has bolted. The milk has been spilled. Congress has seized authority from the states, and Congress has handed authority to the Executive. The Court may see that battle as having been lost, but see itself as a guardian of individual rights.
True in some ways. But also, dare I say it, naive. The Court has always realized it cannot actually enforce its decisions, or do anything, in face of true opposition from the elected branches/the people. It realized this with Andrew Jackson. It realized this in Korematsu. It realizes it every time it leaves anything to with the military to a political question. The Court won’t throw everything up in the air and let it fall where it will, because if it comes down to an all-in battle on something important, the Court loses.
Government isn’t going to fix it, because Government likes the power. And the Court ain’t dumb enough to dynamite the whole structure, however creaky it may seem.
Then it gets overturned on appeal. Trial Courts are given no deference on questions of law - they are reviewed de novo upon appeal. That’s because we don’t think a trial court is any better than higher panels at deciding matters of law. In fact, we think they are if anything worse, hence if a higher court says one thing about the law and a lower court the opposite, the higher court wins.
Questions of fact, on the other hand, are the province of the trial court. They hear the witnesses etc. Deference is given to those findings at appeal. That’s why in the kind of litigation I do, arguably the most important battle is over writing up the findings of fact and findings of law to present to the judge, hoping he will adopt yours. Because if you can frame part of the decision as a finding of fact, it becomes much harder for the Court of Appeals to overturn it. And the Court of Appeals’ decision is, in the overwhelming majority of cases, the final say. It’s extremely rare the Supreme Court will take on a case based on a dispute over a finding of fact.
What I’m trying to find out is what principle you’re applying here, and whether or not it is applicable to other industries, and if not, why not.
And while hospitals may be required by law to treat all patients (is that a federal law?), keep in mind that 1) the HCR affects far, far more than hospitals, 2) there are also laws requiring people to wear clothes and not be vagrants.
In other words, hold him to his promises. Those bastards. It’s their fault. They made him do it.
I’m no lawyer, but I kind of always thought that in laws, words were important. I’m just a wacky literalist, I suppose, but ISTM that if the people passing a law repeatedly say “it’s not a tax,” they ought not be able defend said law’s constitutionality on the basis that congress has tax-raising powers. I have quaint and old-fashioned desire that our government operate with some modicum of integrity.
Because, in my opinion, Wickard didn’t rest on that ground. It’s true that regulating and compelling is a difference, in the same way that wheat and health insurance are different products, but the point of caselaw is to create principles. Obviously I’m no fan of Wickard as a matter of public policy, but the time to make that argument was sixty years ago. The hallmark of the value of law is predictability. At some point, it becomes more important to preserve the structure of settled law, even if the original case creating that law was flawed.
I’m obviously not taking this position as a starry-eyed fan of Obama or of the health care reform effort, since I am neither. But I do think that the result here is compelled by Wickard, and if the courts try to draw a line that permits Wickard while denying this, they’re doing so by creating an arbitrary line.
Well, not really. No tax increases means no increasing the tax burden - it doesn’t mean no new taxes. If Obama took every federal tax, and mystically rolled it into one single tax, at 5% of all income over $30,000 per year, the right would still be screaming about Obama’s new tax. If everyone paid less in health costs, but paid it in the form of taxation rather than insurance payments, it would be painted as a new tax, though each persons “deductions burden,” if I can use a new made up phrase, would be lower.
As a Brit in the US, I look at my health insurance as essentially a tax. I can see how people born here would look at it differently, but I am not sure most people care where the money they are paying for health care goes.
Actually the opposite. Congress can call something “a tax” or “not a tax” until it is blue in the face. The courts look at whether it is a tax or isn’t. Us filthy liberals will look to the legislative history to examine what Congress’ intent was, but no one thinks that is absolutely controlling.
I guess I’m struggling with your use of the word “arbitrary” here. ISTM that lots of precedents rest on fine distinctions; is the distinction between “regulating economic activity” and “compelling economic activity” any more arbitrary than the difference between, say “reasonable suspicion” and “probable cause?”
And as noted, if we interpret Wickard to mean that yes, the government can compel you into commercial transactions, by what principle is this limited to healthcare? Can it not equally apply to all sorts of things? Does Wickard not have any limit at all, or can anything at all be made legal under the heading “affects interstate commerce?”
Your house does not generate as much tax revenue as the hotel I want to build there will, and your refusal to enter into the real estate market means costs are being shifted for others. ISTM that under an expansive reading of Wickard, Kelo is irrelevant, and no eminent domain is needed: a regulatory board will compel you to sell your property to me, and we’ll call it a “mandate.”
Probably true. Presumably they’d be laughed out of the room.
I tend to think they would.
And this form of lying is okay with you? You aren’t uncomfortable with one officer of the federal government saying one thing under oath before a congressional committee, and another officer of the federal government (both of them expressly speaking on behalf of said government) arguing the opposite in court?