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SCOTUS Upholds ObamaCare Mandate As Tax Even Though It’s Not a Tax

Chief Justice Roberts sided with a majority in upholding the individual mandate and, indeed, all but some trivial portions of the Affordable Care Act. Indeed, he wrote the opinion himself.

Doug is in the process of writing up a lengthy discussion, so I’ll reserve my comment to the odd twist by which the Court upheld the mandate: by construing it as a tax rather than a regulation of interstate commerce.  Here’s how the Washington Post describes it:

During oral arguments in March, conservative justices indicated they were skeptical about the individual mandate, the provision in the 2,700-page health-care law that requires nearly all Americans to obtain health insurance by 2014 or pay a financial penalty.

Arguing the case for the Obama administration, Solicitor General Donald B. Verrilli Jr.defended the law as a constitutional exercise of congressional power under the charter’s commerce clause to regulate interstate commerce. He said lawmakers were regulating health insurance to deal with the problem of millions of people who lack coverage and therefore shift costs to the insured when they cannot pay for their medical care.

The court rejected the commerce clause argument, but ruled that Congress nevertheless had the power to impose the mandate because it can be considered a tax.

Here’s how the opinion syllabus concerning the analysis reads:

2. CHIEF JUSTICE ROBERTS concluded in Part III-A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16-30.
(a) The Constitution grants Congress the power to “regulate  Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do.
Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and
enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16-27.
(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U. S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27-30.

3. CHIEF JUSTICE ROBERTS concluded in Part III-B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable. The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.
It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155  U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31-32.

4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33-
44.
(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an action is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, ”[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287, 294. Pp. 33-35.
(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36-37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169-174.
Pp. 35-40.
(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: ”No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to
its population.

This strikes me as incredibly tortured.

First, I fully agree with the majority that Congress lacks power under the Commerce Clause to compel citizens to engage in interstate commerce.

Second, I fully agree with the majority that Congress has the authority under their power to tax to incentivize people to purchase health insurance or, well, just about anything.

My problem with the ruling, though is the not so trivial detail that Congress not only did not enact the individual mandate as a tax but vehemently denied that it was a tax.  Likewise, until it came to the oral arguments–at which time the tax idea was a Hail Mary fallback position–so did the Obama administration. It strikes me that this matters. The power to tax, after all, resides with the Congress, not the Supreme Court. And declaring something that isn’t a tax to be a tax is likewise outside the mandate of the judicial branch.

Indeed, I gather that Roberts argues that it’s the Supreme Court’s job to bend over backwards to find a way to construe Congress’ actions as Constitutional. My counter is that it’s Congress’ job to write laws that are Constitutional and the Supreme Court’s role is, to coin a phrase, call balls and strikes. The majority here essentially ruled that Congress struck out but nonetheless awarded them a base.

UPDATE: To be clear, while I think Congress could have accomplished this with a tax, I don’t think they passed a tax; rather, they passed a mandate to buy something with a penalty for not doing so. Even if you want to call it a “tax” rather than a “penalty,” I think Roberts and company get it wrong: Congress doesn’t have the power to tax people for , to reuse the tired analogy that was always used in the Commerce Clause debate, failing to eat their broccoli.

What I do think Congress has the power to do is do exactly the same thing in reverse. That is, they could issue either an increase to the Medicare withholding or some other dedicated PPACA tax and then allow an offsetting deduction on the federal tax return for those who can document that they are insured.

I fully grant that, as a practical matter, it’s the exact same thing. But process matters. And neither Congress nor the Supreme Court followed that process.

UPDATE 2: To put it more succinctly, Roberts gets the fundamentals right: Congress clearly wanted to mandate that people have insurance and have a way of collecting money from those who don’t to cover the costs of free riding. Congress clearly has the power to do that via a tax–although typically through tax credits and deductions rather than outright taxes. My objection is that the law imposes a penalty for failure to buy insurance rather than issuing a tax credit for buying it.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Come on James. This is a growth opportunity.

    It was always a tax.

    You don’t have to accept that today, but give it a little time, and let yourself come around.

    Like or Dislike: Thumb up 10 Thumb down 2

  2. Derrick says:

    The most ironic spinning that I’m hearing from conservatives is that this ruling now opens up Obama to the “tax and spend” argument which will hurt him from a different angle. I guess that in their hysteria they’ve forgotten which candidate they’ve chosen to represent them in this election. That argument might work if this was Paul Ryan vs Obama, but Romney has no good place to go. Watching him try to attack the mandate as a tax while explaining why his mandate wasn’t a tax should be a lot of fun.

    Like or Dislike: Thumb up 5 Thumb down 3

  3. Craigo says:

    Shorter James Joyner: If Congress says that red is blue, then it’s blue, damn it.

    Like or Dislike: Thumb up 12 Thumb down 1

  4. MBunge says:

    I suspect the tax thing is the fig leaf, much like the emanations and penumbras of privacy, that allows the Justices to rule the way they want to rule. I wonder if conservatives will fixate exclusively on Roberts or if this will open their eyes that Big Business and its cronies are not really on their side.

    Mike

    Like or Dislike: Thumb up 7 Thumb down 1

  5. @Derrick:

    The audacious thing would be for Romney to re-embrace it 😉

    Like or Dislike: Thumb up 2 Thumb down 2

  6. SKI says:

    I pointed out the way to this earlier today. The reality is that it is functionally a tax policy – no different from the mortgage deduction or the “marriage penalty” – tax policies that compel certain behavior choices with carrots/sticks.

    Have insurance? Reduction in taxes. Don’t? Pay extra in taxes.

    Nothing tortured there.

    Like or Dislike: Thumb up 4 Thumb down 1

  7. @MBunge:

    It was structured as a tax because the authors understood the Constitution. We told you this years ago.

    Structure is not fig-leaf.

    (James complains about posturing outside the law or text of the bill, where various people insisted that it wasn’t a tax. That was a fig leaf, maybe, and not substance.)

    Like or Dislike: Thumb up 4 Thumb down 1

  8. mattb says:

    James,

    I think the question of is tax/is not tax is far more complex than you are making it. Early on in discussions, the mandate was thought of as a tax.

    Then, as the bill continued to develop, and the Tea Party rose in power, strenuous efforts were made to remove the tax associations, lest the Democrats be identified as raising taxes during a recession. That shift, in the selling of the bill, was a moment of political cynicism and cowardice.

    And, it should be noted, that both sides have taken turns selectively using the word “Tax” to stand in for Mandate.

    The entire thing ultimately reminds me of the famous Lincoln anecdote:

    In discussing the question, [Lincoln] used to liken the case to that of the boy who, when asked how many legs his calf would have if he called its tail a leg, replied, ” Five,” to which the prompt response was made that calling the tail a leg would not make it a leg.

    sourced via http://timpanogos.wordpress.com/2007/05/23/lincoln-quote-sourced-calfs-tail-not-dogs-tail/

    Like or Dislike: Thumb up 3 Thumb down 1

  9. Chad S says:

    Everyone can have an opinion, but SCOTUS just declared it a tax. Their opinion seems to matter more.

    Like or Dislike: Thumb up 8 Thumb down 2

  10. Andy says:

    It strikes me that this matters.

    James, I think one needs to separate the rhetoric from the actual provisions in the law. And there are substantive differences between a commerce clause interpretation and a tax interpretation:

    The ACA’s key provision now amounts to an invitation to buy insurance, rather than an order to do so, with a not-very-big tax penalty for going without.

    Like or Dislike: Thumb up 3 Thumb down 3

  11. @mattb:

    Was it really that hard to keep ones eye on the structure of the bill? It was a tax, and then it was called a lot of things.

    It didn’t seem that hard to follow, really.

    Like or Dislike: Thumb up 2 Thumb down 2

  12. Wayne says:

    So government can mandate that you have to buy a vehicle. If you don’t they will fine\tax you and offer you a heavily tax subsidized GM vehicle. What B.S.

    Poorly-rated. Helpful or Unhelpful: Thumb up 5 Thumb down 20

  13. Vast Variety says:

    @MBunge: Some conservative blogs are all ready calling Roberts a traitor.

    Like or Dislike: Thumb up 2 Thumb down 1

  14. PD Shaw says:

    It is an odd culmination of events. There are few restrictions on Congress’ use of the taxing power (as opposed to the power to regulate), since presumably Americans have always been hostile to taxes and the political process retains sufficient checks and balances. But in this political process, the mandate was described as “not a tax.” Full political checks and balances were avoided.

    I suppose this gives Grover Norquist ammunition in the future to claim that any tinkering with the tax code is a tax increase.

    Like or Dislike: Thumb up 4 Thumb down 0

  15. Jenos Idanian #13 says:

    Oh, Patterico found video of Greatest Constitutional Scholar EVAR Barack Obama declaring that no way, no now was ObamaCare a tax.

    So, we can now declare him unconstitutional?

    Seriously… this was the Court rewriting the law for Congress (well, the Democrats). The law specifically cited its authority under the Commerce Clause and denied it was a tax. The Court had to find their own justification for it.

    Poorly-rated. Helpful or Unhelpful: Thumb up 5 Thumb down 22

  16. Jenos Chinos says:

    I whine therefore I am…
    I whine therefore I am…
    I whine therefore I am…

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 4

  17. James Joyner says:

    @Chad S: So, your thesis is that the Supreme Court issuing a ruling ends the debate? That, since their ruling is “final”–until it isn’t–that we must all accept it as just and wise?

    Like or Dislike: Thumb up 3 Thumb down 0

  18. anjin-san says:

    @ Wayne

    So government can mandate that you have to buy a vehicle

    No, but they can mandate that you can’t send me the repair bill for yours.

    Like or Dislike: Thumb up 13 Thumb down 3

  19. @James Joyner:

    Don’t choose the weakest link. Take on the real facts of the law and the decision. It is a tax.

    Now, if you don’t like the tax, or can design a better health care system, do that.

    That would be a productive response.

    Playing pretend with alternate law and alternate reality is not so productive.

    Like or Dislike: Thumb up 9 Thumb down 1

  20. Rodger says:

    Administration spokespersons have explicitly referred to the mandate as a tax since at least July 2010 — months prior to the 2010 election. http://www.nytimes.com/2010/07/18/health/policy/18health.html?_r=1

    See also Factcheck, January 2010:

    Q: How does health care legislation propose to enforce the individual mandate?

    A: The Internal Revenue Service would verify whether individuals meet the requirement to have health insurance, and collect a tax if they don’t.

    http://www.factcheck.org/2010/01/enforcing-the-individual-mandate/

    At the time, many Republicans argued it was a weak and unenforceable tax — and that the IRS didn’t have resources to do this.

    Mitt’s problem. The Massachusetts individual mandate is also enforced via the tax code: http://www.mass.gov/dor/businesses/help-and-resources/legal-library/tirs/tirs-by-years/2012-releases/tir-12-2.html

    Like or Dislike: Thumb up 12 Thumb down 1

  21. KRM says:

    Seems to me that this opinion can also be read to cabin Congress’ powers to “mandate” such crap under the Commerce Clause and Necessary and Proper Clause. Sure, they can bypass such limitations by calling whatever it is a “tax,” but politically that’s very unpopular (as we’ve seen).

    Like or Dislike: Thumb up 2 Thumb down 1

  22. @anjin-san:

    Actually they could, but we’re back to democracy as our protection. While Obama could scrounge votes for a health care mandate-as-tax, we can fairly doubt that he’d get a new car (let alone GM-specific) new car mandate-as-tax.

    … there was a time when we believed in democracy, actually.

    Like or Dislike: Thumb up 4 Thumb down 0

  23. So how long until we get the fawning essays where liberal pundits suddenly discover what a thoughtful and wise jurist Roberts has been? And of course the essays by conservative pundits about how Roberts has always been a squishy RHINO who should never have been nominated?

    Like or Dislike: Thumb up 6 Thumb down 1

  24. MBunge says:

    @john personna: “It was structured as a tax because the authors understood the Constitution.”

    Uhh….what is the point or use of the Commerce Clause if the government has complete authority to say “Do X or we’ll tax you”? Having the power to tax something but not having the power to regulate it doesn’t make a lot of sense.

    Mike

    Like or Dislike: Thumb up 1 Thumb down 1

  25. Andre Kenji says:

    Well,. here in Brazil there is universal health care provided by the government, but if you buy private health insurance or health care you can deduct most of the expenses from the IRS. I think that the same rationale can be used to Mr. Roberts decision.

    Like or Dislike: Thumb up 0 Thumb down 3

  26. Rodger says:

    @Jenos Idanian #13:

    In the video, Obama does not say that that it is not a tax, he says it is not a tax increase.

    Like or Dislike: Thumb up 9 Thumb down 2

  27. @MBunge:

    I think there some guys in robes that I can defer to on this.

    Live with it.

    Like or Dislike: Thumb up 3 Thumb down 2

  28. Gustopher says:

    The “it’s not a tax” argument during the debate on the bill was an obvious lie. A bare majority of the Supreme Court was willing to see through that obvious lie.

    To a certain degree, it would have been amusing to see the Supreme Court hold the authors of the bill to their word, but they didn’t.. I’ll be interested to read the dissent(s) later when I have time, to see the tortured logic explaining why it isn’t a tax.

    Like or Dislike: Thumb up 1 Thumb down 0

  29. Andy says:

    @john personna:

    … there was a time when we believed in democracy, actually.

    When was that?

    Like or Dislike: Thumb up 1 Thumb down 0

  30. PD Shaw says:

    The Court doesn’t think its obviously a tax:

    [T]he statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.

    (From page 44)

    Like or Dislike: Thumb up 3 Thumb down 0

  31. PS – I’d like to point out I was arguing that the tax question was the key part of the case all the way back at the oral arguments:

    http://www.outsidethebeltway.com/tobamacare-at-the-supreme-court-day-one/#comment-1511623

    So to everyone who was mocking me back then (Doug I’m looking at you) — *does the Stormy Dragon superiority dance*

    Like or Dislike: Thumb up 4 Thumb down 0

  32. Jenos Idanian #13 says:

    @Rodger: That strikes me as a difference without a distinction. It’s a brand-new tax, with a prior rate of zero — that makes it a “tax increase.”

    Like or Dislike: Thumb up 1 Thumb down 11

  33. Andy says:

    @MBunge:

    Uhh….what is the point or use of the Commerce Clause if the government has complete authority to say “Do X or we’ll tax you”? Having the power to tax something but not having the power to regulate it doesn’t make a lot of sense.

    It’s a similar difference in how the federal government enforces the 21 drinking age – it can’t directly criminalize underage drinking, but it can compel states to criminalize it by using federal funding as blackmail.

    Similarly, with the mandate, the feds cannot force people to buy insurance, but they can attach a financial cost for refusing to do so.

    Like or Dislike: Thumb up 0 Thumb down 1

  34. Jenos Idanian #13 says:

    @Stormy Dragon: Laugh it up, fuzzball…

    Like or Dislike: Thumb up 3 Thumb down 10

  35. Chad S says:

    @James Joyner: No, its that you can have your opinion but SCOTUS just declared it a tax(for now). Could they change it? Sure, but legally it’s a tax until that day comes no matter what you think about it.

    Like or Dislike: Thumb up 0 Thumb down 1

  36. Craigo says:

    @Jenos Idanian #13:

    “That strikes me as a difference without a distinction. It’s a brand-new tax, with a prior rate of zero — that makes it a “tax increase.””

    So you agree that it’s a tax?

    Like or Dislike: Thumb up 4 Thumb down 0

  37. @Andy:

    The movies were all black and white 😉

    Like or Dislike: Thumb up 0 Thumb down 0

  38. MBunge says:

    @john personna: “I think there some guys in robes that I can defer to on this. Live with it.”

    1. It’s fine with me if health care reform is upheld.

    2. Well, now we’re back to the whole “Is the Supreme Court a threat to democracy” thing. Just because 5 fat old lawyers in DC say something, doesn’t make it true. Saying the government has the authority to tax an activity but NOT the authority to regulate it makes no sense.

    Of course, I don’t understand this whole “limiting principle” business in the first place. The limits on the Commerce Clause are right there. It is commerce? It is commerce among and/or between the states?

    Mike

    Like or Dislike: Thumb up 1 Thumb down 0

  39. @PD Shaw:

    That says what some of us argued all along, that it was structured as a tax.

    Like or Dislike: Thumb up 0 Thumb down 0

  40. @Jenos Idanian #13:

    I’m not happy with the way the case came out, as I think the law should have been found unconstitutional. But on the other hand I’m so completely disillusioned that I pretty much expected the court to decide this case wrongly, so I’m not really suprised either.

    I’m just happy I realized back then that the first day was the most important part of the case when everyone else was saying it was a wasted day of argument. Now admittedly, I was wrong about how it would be significant, but still…

    Like or Dislike: Thumb up 0 Thumb down 0

  41. Andy says:

    @MBunge:

    Here’s what Orin Kerr at Volokh says:

    If I am reading the Chief Justice’s opinion correctly, the upshot is that real economic mandates are beyond the power of Congress. Congress can’t force action where there was none. Congress can’t say you must act or else go to jail, for example. The individual mandate is constitutional because despite the name, it’s not really a mandate. Congress called it a mandate, to be sure, but in practice it’s really just a small tax. And the enforcement mechanism is pretty light. So you really don’t have to get health insurance: You just have to pay the smallish penalty if you decide you don’t want it. So Congress lacks the power to say that you go to jail if you don’t buy health insurance. But Congress does have the power to encourage you to get health insurance by imposing a tax if you don’t, as long as the tax isn’t so coercive that it’s really more than just a tax.

    Like or Dislike: Thumb up 7 Thumb down 0

  42. MBunge says:

    @Andy: “It’s a similar difference in how the federal government enforces the 21 drinking age”

    So, the established principle here is that the federal government does not have an unlimited right to throw you in jail. It does,however, have an unlimited right to tax you into poverty.

    Mike

    Like or Dislike: Thumb up 0 Thumb down 1

  43. @MBunge:

    As I’ve said, if we want to be productive we should talk about a better health care system.

    For me that would be one that provides a basic level of universal care, with lower costs, and still allows wealthy individuals to spend beyond basic.

    That is actually a centrist position. The authentic left wants the poor to have equal healthcare with the rich. And of course the authentic right doesn’t have universal care as a goal.

    Like or Dislike: Thumb up 6 Thumb down 0

  44. Rodger says:

    @Jenos Idanian #13:

    Come on. Politicians criticize policies all the time for being “tax increases.” It means that the amount of tax burden on some individuals increase. In this case, Obama seems to be making the argument that health care consumers should pay their own freight — a very conservative idea, actually. Otherwise, the rest of us pay for their care in our taxes.

    Like or Dislike: Thumb up 6 Thumb down 0

  45. @MBunge: That is how my 401(K) works — I can either pay a tax on my current income or put that current income into a 401(K) with significant restrictions and rules on that cash BUT not pay a tax on it.

    Like or Dislike: Thumb up 0 Thumb down 0

  46. MBunge says:

    @Andy: “But Congress does have the power to encourage you to get health insurance by imposing a tax if you don’t, as long as the tax isn’t so coercive that it’s really more than just a tax.”

    But if the government has no right to regulate the activity in the first place, why should it be able to tax it in the first place? It just seems like jumping through hoops to pay fealty to the notion that the Commerce Clause is theoretically more restrictive than it is.

    Mike

    Like or Dislike: Thumb up 1 Thumb down 0

  47. mattb says:

    @MBunge:

    I don’t understand this whole “limiting principle” business in the first place. The limits on the Commerce Clause are right there. It is commerce? It is commerce among and/or between the states?

    The issue is we have shifted from a world where the majority of good and services were made and circulated within the state you lived in to a world where goods and services freely move across state borders. So the limiting question is, in part, when most (physical and digital) objects traverse borders, when should we care that something has been involved in instate commerce and when does that not matter.

    Like or Dislike: Thumb up 0 Thumb down 0

  48. James Joyner says:

    @Chad S: But you’re just arguing that might makes right. I actually believe Bush won in 2000 and that, for the purposes of the 1st Amendment, corporations should be treated as collections of people. But many liberals vehemently disagree. SCOTUS rulings don’t end the debate, they settle the case in controversy.

    Like or Dislike: Thumb up 2 Thumb down 0

  49. mattb says:

    @MBunge:

    why should it be able to tax it in the first place?

    Because the Constitution grants congress the power to levy taxes without placing many restrictions over what Congress can tax.

    So the Commerce Clause doesn’t even enter into the equation.

    Like or Dislike: Thumb up 1 Thumb down 0

  50. Craigo says:

    @MBunge: “Saying the government has the authority to tax an activity but NOT the authority to regulate it makes no sense.”

    And of course that’s not that the Court is saying. The legislative scheme contemplated by the ACA is a regulation of the health insurance market no matter how you look at it, and nothing in the opinion says otherwise. But Congress’ power to regulate is not solely derived from the commerce clause.

    At the heart of the case was the enforcement mechanism – are you being incentivized to buy insurance under the tax power, or forced to buy insurance under the commerce power?

    As the opinion says, “The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.” Note also that the payment is collected solely upon potential tax refunds as well, and that unlike actual civil penalties, it carries no other legal implications.

    You can try to argue that this enforcement mechanism is a penalty and not a tax. But as James Joyner’s retreat from this position in his update shows, you will look very silly in doing so.

    (Of course, in his haste to find some reason, any reason, to disagree, Joyner now seems to think that the plenary taxing power is limited to doing only those things with which he agrees.

    Like or Dislike: Thumb up 3 Thumb down 0

  51. Lomax says:

    @Stormy Dragon: It is obvious that Roberts got the call or visit that “persuaded” him. The government, news media, candidates, economy: all under control of the international one world/socialist cabal.

    Like or Dislike: Thumb up 0 Thumb down 6

  52. PD Shaw says:

    @john personna: That’s pretty much the opposite of what I just quoted. Roberts is saying the law is structured as a regulatory requirement, but that the Court is required to consider less obvious alternatives to avoid invaliding an act of Congress. He doesn’t even conclude that it is a tax, but that it “may reasonably be characterized as a tax.”

    In terms of the Court being an umpire, he is calling this one debatable as a tax, and a tie goes to upholding the law. If Congress changes any aspect of this, the whole thing might become invalid.

    Like or Dislike: Thumb up 3 Thumb down 0

  53. sam says:

    @JJ

    My problem with the ruling, though is the not so trivial detail that Congress not only did not enact the individual mandate as a tax but vehemently denied that it was a tax.

    Well, sometimes the Court strikes down a federal law because the Congress says X is Y, and the Court says, No, X is Z and therefore the law is unconstitutional. In this case the Court said, contrary to what the Congress said, X is Z and is therefore the law is constitutional.

    But let me ask you a question, re penalty vs tax. Suppose that I fail to file one year and the Feds, as is their wont, catch up with me a few years later. I get a letter from the Treasury Department telling me that I owe unpaid taxes from year whatever and, moreover, I’m assessed a penalty for not paying my tax that year. I’m instructed to send a check to the the Treasury in the amount of Unpaid Tax + Penalty. In what sense is the “Penalty” I am assessed not a further tax on me?

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  54. @PD Shaw:

    I think he’s being a little coy. I think he recognizes there that the mandate would have been written differently if the Constitution allowed it as command.

    And then he comes around to saying he’s willing to “construe” something written into tax code as tax.

    Yeah, I’d think so.

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  55. Jeebus, do we need to back up to the decision not to write this as command, with criminal penalty?

    The law could have said “buy insurance or spend 30 days in jail,” and yeah, that certainly would have been unconstitutional.

    Like or Dislike: Thumb up 1 Thumb down 0

  56. @Lomax:

    o/~ Everybody’s bank accounts are serviced by The Gnomes
    The Masonic Temple gets the mortgage payment for your homes
    Commander Weishaupt kept Saddam from being caught too soon
    While Crowley and Blavatsky run Wall Street from the moon

    I rule you, you rule me, someone rules us secretly
    It’s a vast conspiracy, The Illuminati Polka o/~

    Like or Dislike: Thumb up 4 Thumb down 0

  57. mike says:

    The Teaparty leadership should be happy. Something for them to rally the troops and be mad about; should fill their coffers. Glad to see the supremes get it right.

    Like or Dislike: Thumb up 1 Thumb down 0

  58. jukeboxgrad says:

    video of Greatest Constitutional Scholar EVAR Barack Obama declaring that no way, no now was ObamaCare a tax

    That’s not what Obama said, as others have explained to you.

    But since you like video, I bet you’ll enjoy the video, just found, of Mitt saying this:

    “With regards to the individual mandate, the individual responsibility program that I proposed, I was very pleased that the compromise between the two houses includes the personal responsibility mandate” … The individual mandate, he said, “is essential for bringing the health care costs down for everyone and getting everyone the health insurance they need.”

    Like or Dislike: Thumb up 6 Thumb down 0

  59. al-Ameda says:

    @Wayne:

    So government can mandate that you have to buy a vehicle. If you don’t they will fine\tax you and offer you a heavily tax subsidized GM vehicle. What B.S.

    Why should I continue to be required to pay for the uninsured through my private insurance premium rates?

    In the past, conservatives favored the mandate as a means to attempt to shift the burden of paying for the uninsured away from those who are insured. That idea was gaining acceptance until a Democratic president adopted it.

    Like or Dislike: Thumb up 11 Thumb down 0

  60. nightrider says:

    The Republicans might have more credibility in this debate if they weren’t whining about being forced to choose between having to buy health insurance they already have or paying more in taxes that they should have to pay anyway, given the size of the national debt. I’m so tired of the faux outrage.

    Like or Dislike: Thumb up 9 Thumb down 1

  61. HarvardLaw92 says:

    Not to impugn your reasoning, but your argument seems to be one more of semantics than substance.

    It is emphatically the province and duty of the judicial department to say what the law is. I’m sure you remember that sentence, and its import.

    Congress passes laws. The courts determine what those laws mean, so SCOTUS was well within its scope of authority to determine, on a functional basis, whether or not the proposed action was or was not a tax.

    Of course, Congress can (and should) revisit the issue by changing the existing legislation (via further subsequent legislation), but it seems as though you’re essentially arguing against Marbury here.

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  62. Tsar Nicholas says:

    Surprised about Roberts. Gobsmacked, actually.

    In any event, this year’s Senate elections now have gone from critical to unfathomably critical. Since this monstrosity only survives as a tax that means ipso facto it’s subject to standard budget reconciliation rules, meaning there is no filibuster. Romney + 51 + the House would = full repeal.

    The Medicaid portion of the ruling is not “trivial.” Far from it. It confirms once and for all the Feds cannot penalize states in connection with taxing and spending decisions. Thing is, however, ironically enough, now the law even is more of a giant unfunded mandate. If the law is not repealed that won’t end well. Think PIIGS but on a grander scale.

    Like or Dislike: Thumb up 0 Thumb down 2

  63. gVOR08 says:

    @john personna: I’m impressed. Even as irony it’s hard to get “audacious” and “Romney” into the same sentence.

    Like or Dislike: Thumb up 3 Thumb down 0

  64. HarvardLaw92 says:

    @Tsar Nicholas:

    In any event, this year’s Senate elections now have gone from critical to unfathomably critical.

    You have a tendency for melodrama that doesn’t help your position, no offense intended.

    Since this monstrosity only survives as a tax that means ipso facto it’s subject to standard budget reconciliation rules, meaning there is no filibuster.

    Did we repeal the Byrd Rule and nobody told me?

    Like or Dislike: Thumb up 4 Thumb down 0

  65. James Joyner says:

    @HarvardLaw92: Yes, I think Marbury was a judicial power grab, done through superb political stealth. Marshall, who should have recused himself from even hearing the case–HE WAS THE SECRETARY OF STATE WHOSE FAILURE TO DELIVER THE MANDATES WAS AT STAKE!–was politically prudent. He issued a ruling that enhanced judicial power but nonetheless found a loophole to give the sitting party what it wanted. The Supreme Court then did not strike down a single act of Congress for half a century.

    That said, judicial review is obviously settled law at this point. But nobody, not even the justices of the Supreme Court, actually believes that a majority of the Supreme Court saying something settles the debate. There are, after all, vigorous dissents in almost every case. All that we agree on is that SCOTUS gets the final say on a given case and that their rulings set precedents for the lower courts to follow.

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  66. Wayne says:

    @anjin-san:

    Just the opposite. They can say that weall need functional vehicles. If someone can’t afford repairs instead of denying repairs to them, others are taxed to pay for it for them.

    Like or Dislike: Thumb up 1 Thumb down 3

  67. al-Ameda says:

    @Tsar Nicholas:

    In any event, this year’s Senate elections now have gone from critical to unfathomably critical. Since this monstrosity only survives as a tax that means ipso facto it’s subject to standard budget reconciliation rules, meaning there is no filibuster. Romney + 51 + the House would = full repeal.

    You’re right, this election is critical. The choice this November will be clear: vote for Romney and you’re voting for beginning the privatization of Medicare, rolling back Mediaid, possibly beginning private accounts in Social Security, and a reduction in the top tax bracket from 34% to 25%, all while not reducing the deficit.

    We’ll see if Americans want to turn the entire federal government over to the Republican Party and run off the cliff.

    Like or Dislike: Thumb up 7 Thumb down 1

  68. Has anyone asked Romney if he supports repeal of his Mass law? That would be fun.

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  69. @Tsar Nicholas:

    Surprised about Roberts. Gobsmacked, actually.

    Why are you suprised?

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  70. HarvardLaw92 says:

    @James Joyner:

    Yes, I think Marbury was a judicial power grab, done through superb political stealth.

    How so? If the Court isn’t empowered to determine that statutes are unconstitutional, what prevents Congress from legislatively violating the Constitution at will? Moreover, how can a court, any court, possibly function with any validity if it can’t apply the verbiage of statutes that, by the very nature of statutes, can’t possibly envision or address every conceivable permutation of the conflicts that arise as a result of their passage? You’re essentially arguing that courts should be rubber stamps for the legislature, and I can’t support that notion.

    Marshall, who should have recused himself from even hearing the case

    No argument, but it also arguably wouldn’t have affected the ruling. A good deal of the reasoning in the decision flows from Chase, and neither Cushing nor Moore participated. I’m not sure how you believe that a 3-0 ruling would have been any less emphatic than a 4-0 ruling.

    That said, judicial review is obviously settled law at this point. But nobody, not even the justices of the Supreme Court, actually believes that a majority of the Supreme Court saying something settles the debate.

    With which, you’ll note, I agreed with above. Congress certainly can (and indeed should) revisit this act via subsequent legislation. That doesn’t change the fact that the court properly dealt with the issue (the existing statute) that was before it.

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  71. al-Ameda says:

    @john personna:

    Has anyone asked Romney if he supports repeal of his Mass law? That would be fun

    Obama could toss in a few jibes about that on the campaign trail.

    Like or Dislike: Thumb up 3 Thumb down 0

  72. sam says:

    @Wayne:

    Just the opposite. They can say that weall need functional vehicles. If someone can’t afford repairs instead of denying repairs to them, others are taxed to pay for it for them.

    “Can” doesn’t mean “will”. As I pointed out a while ago, there is absolutely nothing in the Constitution to prevent the Congress passing a draft law that includes grandmothers. I feel confident in asserting that Congress will never pass a law allowing the drafting of grandmothers.

    Come back to the real world.

    Like or Dislike: Thumb up 4 Thumb down 0

  73. Wayne says:

    @al-Ameda:
    We shouldn’t have to pay for other peoples bills. Yes we should find ways to force people to pay for their bills or deny them services. Property and partial wage confiscation are two options. Work programs are another. They shouldn’t be getting the same level of care as those who are responsible by sacrifices some of their hard earn money to protect themselves.

    The emergency room regulations need to be redone so people with non-emergencies can’t abuse it like they are doing now.

    Like or Dislike: Thumb up 0 Thumb down 10

  74. @Wayne:

    You do remember that European, truly universal, systems cost less than ours, right? This is not a small thing. A country like Denmark spends less, while living longer and happier lives.

    The right seems motivated by a puritan morality play. They want people who don’t work hard enough, or whatever, to suffer. That harsh version of fairness is so firm in their minds that they are actually willing to pay more, not less, to get it.

    There might actually be a “we can’t afford it” argument, if we were outspending all those “socialist” states, but we’re not. We’re messing up on both ends of the deal.

    Like or Dislike: Thumb up 11 Thumb down 0

  75. Craigo says:

    @HarvardLaw92: I find it confusing that people who should really know better seem to believe that John Marshall invented judicial review in 1803.

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  76. the Q says:

    Ok, what happens if you don’t have an income? Like a college student who is getting loans and isn’t working, or a housewife who stays home with the kids and is not insured but her husband is? How can she pay the tax and not have her husband pay for it since this is supposedly an “individual” mandate, so why would the husband be liable (hypothetically if he is)

    Or someone living off of savings and is not working? How is the 1% tax on no income gonna be collected ? and what happens if this person does not file an income tax return since he doesn’t have to?

    Like or Dislike: Thumb up 2 Thumb down 0

  77. HarvardLaw92 says:

    @Craigo:

    It fits their narrative, so they adopt it as fact.

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  78. Ben says:

    I’m actually really interested in what the fallout of the Medicaid decision is. There are a lot of things that Congress can’t constitutionally do, so they hold a gun to the head of the states to make them do it. How about the drinking age of 21, or the 0.08 BAC standard for DUI? Both of those things were basically imposed on the states at the threat of withholding federal highway funds. Is that unconstitutional now?

    Like or Dislike: Thumb up 0 Thumb down 0

  79. al-Ameda says:

    @Wayne:

    We shouldn’t have to pay for other peoples bills. Yes we should find ways to force people to pay for their bills or deny them services. Property and partial wage confiscation are two options. Work programs are another. They shouldn’t be getting the same level of care as those who are responsible by sacrifices some of their hard earn money to protect themselves.

    Indentured servitude is not the answer.
    I honestly believe that a single-payer health insurance system is the best solution. Perhaps on the Swiss model – People pay a transaction tax of 8% that goes for health insurance. Private Insurance companies are required to offer the basic government-approved plan, and if people want additional coverage they can purchase it from private companies. The government does not run the hospitals or clinics, does not salary the doctors. Switzerland is expensive, yet they pay far less per capita for medical care and have no uninsured citizens.

    Like or Dislike: Thumb up 6 Thumb down 0

  80. Wayne says:

    @Sam
    The government has done a great deal more than what previous generations thought that would ever be allowed. The old “Farm” book phenomenon. Change things slow enough and people will tolerate it or not even notice.

    The more power we give the government the more power they will used. Hell, they want to and are attempting to regulate cow farts. Passing regulations on size of soft drinks in some places.

    They are taking our freedoms left and right. So you come back to the real world.

    Like or Dislike: Thumb up 0 Thumb down 4

  81. @john personna:

    You do remember that European, truly universal, systems cost less than ours, right? This is not a small thing. A country like Denmark spends less, while living longer and happier lives.

    Do you really believe that? How about this: you can have your univesal single payer healthcare but we cut federal healthcare spending 16% at the same time. If you truly believe we can reach a cost per person similar to what Denmark spends, then we should be able to provide universal coverage for the entire country for less than we are currently spending just on Medicare, Medicaid, etc.

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  82. MBunge says:

    @Craigo: “As the opinion says, “The payment is not so high that there is really no choice but to buy health insurance”

    Here’s my problem. Instead of saying “Yes, Congress has the authority to do this” or “No, Congress doesn’t have the authority to do this”, they seem to be saying “Congress’ authority to do this is dependent on the whims of this and all future courts”. What guidance does this give Congress as to future law-making?

    Mike

    Like or Dislike: Thumb up 1 Thumb down 0

  83. michael reynolds says:

    Clearly Chief Justice Roberts hates America and freedom and capitalism. Also apple pie. He is . . . The Backstabber!

    Fortunately we have a Superhero to take on this Supervillain: Mitt Romney, The Human Weathervane! The Human Weathervane, using his amazing power to drift with the breeze, and armed with his Super Etch-A-Sketch of Doom, will take on The Backstabber and defeat RomneyCare!

    Like or Dislike: Thumb up 7 Thumb down 1

  84. michael reynolds says:

    Darn! I made an error.

    The Human Weathervane, using his amazing power to drift with the breeze, and armed with his Super Etch-A-Sketch of Doom, will take on The Backstabber and defeat RomneyCare!

    Should read:

    The Human Weathervane, using his amazing power to drift with the breeze, and armed with his Super Etch-A-Sketch of Doom, will take on The Backstabber and defeat ObamaCare!

    I regret the error.

    Like or Dislike: Thumb up 6 Thumb down 0

  85. James Joyner says:

    @Craigo: @HarvardLaw92: Who’s arguing that Marshall invented judicial review? You brought up Marbury, which articulated the principle in terms of the US system. Certainly, the Framers couldn’t agree whether the courts had that power, as is obvious from the Philadelphia debates and the lack of same in the Constitution. And Alexander Hamilton seems to argue that they don’t in the Federalist, although in a really odd essay.

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  86. @Stormy Dragon:

    You aren’t really asking me a hard question. I’m saying yes, I want a plan like one of those OECD systems, and yes, the rules for that system will reduce costs.

    Your hypothetical only hits a snag if you try to offer more or better care than the OECD systems, while paying less.

    Now, we do have a political problem here. End of life spending is important. The US currently spends more on non-prolonging treatments than the OECD. The last time the issue was raised, it became “death panels.”

    Where are you on end-of-life spending? Unlimited, even where live extension is unlikely? Or do you want a higher standard?

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  87. @michael reynolds:

    I actually thought it was better with “RomneyCare”

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  88. grumpy realist says:

    @James Joyner: Except when they don’t. See patent law for many examples.

    Like or Dislike: Thumb up 0 Thumb down 0

  89. Dean says:

    @john personna:

    It was structured as a tax because the authors understood the Constitution. We told you this years ago.

    Nice Monday Morning Quarterbacking there, John.

    The solicitor general focused his defense for the law on the grounds of the Commerce Clause. And, the President argued with George Stephanapoulos that it was not a tax.

    http://abcnews.go.com/blogs/politics/2009/09/obama-mandate-is-not-a-tax/

    The framers of this legislation were very careful to avoid it being called a tax. Had they done called it a tax from the outset, it is likely more Democrats would have voted against it because they didn’t want to be seen as imposing higher taxes. Additionally, the President was very clear he was not going to raise taxes on those making less than $250,000. For the uninsured, this law does that.

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  90. john personna says:

    @Dean:

    Gosh Dean, I forget, which is legally binding, a law as written or a tv interview?

    Does the Supreme Court review all Sunday morning tv, or just the major networks?

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  91. HarvardLaw92 says:

    @James Joyner:

    I brought up Marbury because inherent opposition to Marbury underpins the argument that you are making above. You validated that assertion yourself. You’re arguing that it isn’t a tax.

    So what, then, constitutes the acceptable (in your view) definition of a tax? In my own, a tax is the government taking money from you in order to fund providing something for you and/or for society as a whole.

    In that context, this smells like a tax to me. SCOTUS agreed.

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  92. Craigo says:

    @James Joyner: Where is the power grab you speak of? Early Americans were clearly familiar with the concept, hence the lack of outrage when colonial, state and federal courts engaged in it. It only became a “power grab” when Jefferson decided that any result he disliked was unconstitutional.

    Do you mean Federalist No.78, the most widely cited of the papers, where Hamilton clearly says that the courts have the power of judicial review? “[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

    And do you mean the Constitutional Convention, where James Madison, Gouverneur Morris, and James Wilson all clearly indicated the judicial power included the power of review? “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”

    Or how about the Judiciary Act of 1789, two years after the Convention, which clearly contemplated judicial review? “(A) final judgment or decree in any suit, in the highest court of law or equity of a State…where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity on the ground of their being repugnant to the constitution…may be re-examined and reversed or affirmed in the Supreme Court of the United States”

    Again, is there any evidence – at all – that judicial review was not included in the judicial power granted by Article III?

    Like or Dislike: Thumb up 2 Thumb down 0

  93. James Joyner says:

    @Craigo:

    Again, is there any evidence – at all – that judicial review was not included in the judicial power granted by Article III?

    Aside from Article III not mentioning it?

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  94. HarvardLaw92 says:

    @James Joyner:

    Article I doesn’t mention an Air Force. Does that mean that we can’t have one?

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  95. James Joyner says:

    @HarvardLaw92: The Constitution doesn’t mention an air force because the airplane had yet to be invented and was beyond the ken of the Framers. Certainly, that wasn’t the case with judicial review.

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  96. Craigo says:

    @James Joyner: Find me the clause in the Constitution where it specifies that bills are passed by a majority of those present.

    I’ll save you the time: It doesn’t exist, because the delegates knew that a legislature operated by majoritarian decision, unless specified otherwise. Just as the delegates knew that courts reviewed laws, unless specified otherwise.

    What they didn’t know was that a couple of twits would come along two hundred years later (or twenty, in the case of Jefferson) and assert the opposite of what nearly every single person at Philadelphia had assumed to be true.

    Do you have any real response to these quotations? Do you want to discuss the ratification debates, where historians have failed to find a single person who spoke against judicial review, as opposed to the dozens who spoke in favor? Would you like to retract your flatly wrong assertion that Hamilton argued against judicial review in the Federalist Papers? (Aside: Who actually pays you real money to teach those?)

    Like or Dislike: Thumb up 3 Thumb down 0

  97. HarvardLaw92 says:

    @James Joyner:

    I see. So it’s a case of “we can read the Constitution to imply things that I agree with or that hadn’t been thought of yet, but to bar the things that I disagree with or which had been thought of already.”

    That’s very inventive. Are you one of those not-so-closeted originalists?

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  98. john personna says:

    @HarvardLaw92:

    How clear is the distinction between tax and fine?

    I’d think for James’ view of mandate you’d need a criminal penalty – directly for nonpurchase of insurance and not indirectly for nonpayment of tax.

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  99. HarvardLaw92 says:

    And, not to belabor the point, but you didn’t answer my question above:

    If we presume that courts do not have the power of judicial review, what prevents Congress from abrogating the Constitution at will?

    Are you actually arguing that Congress (or, to be concise, the President as well) could, for example, suspend habeas indefinitely and the courts should properly have no say in whether or not doing so is justified?

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  100. Dean says:

    @john personna: Your previous comment was that the authors wrote the bill as a tax, when it was clear and obvious that writing it as a tax was not their intent. The fact that the Supreme Court let them off the hook by declaring it is a tax was luck and not by design.

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  101. @john personna:

    Now, we do have a political problem here. End of life spending is important. The US currently spends more on non-prolonging treatments than the OECD. The last time the issue was raised, it became “death panels.”

    Only because the Democrats in congress want to pretend you can expand coverage to more people for less cost without reducing the level of service

    Where are you on end-of-life spending? Unlimited, even where live extension is unlikely? Or do you want a higher standard?

    I honestly don’t have a good political view on it, as it depends on metaphysical issues that aren’t generally addressed well via the political process. Part of the problem right now is both sides want to pretend it’s possible to have your cake and eat it too, which is preventing a decent consideration of the tradeoffs.

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  102. HarvardLaw92 says:

    @john personna:


    How clear is the distinction between tax and fine?

    Punitive versus not? Fines selectively apply only to those that violate a law, versus taxes applying equally to everyone?

    I’d think for James’ view of mandate you’d need a criminal penalty – directly for nonpurchase of insurance and not indirectly for nonpayment of tax.

    I think he’s getting too bogged down in the concept of “you are having to pay this because you didn’t do something” which beggars construction if we extend his reasoning beyond the narrow context he’s trying to view it in. For example, using his logic, should we be penalizing people for speeding or giving them tax credits in order to encourage them not to speed?

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  103. john personna says:

    @Dean:

    Gosh, did the Supremes move it to tax filers? It was never there before?

    Like or Dislike: Thumb up 1 Thumb down 0

  104. john personna says:

    @Stormy Dragon: no, the Dems tried to contain costs and got hit with “death panels” as a result

    Like or Dislike: Thumb up 8 Thumb down 0

  105. mantis says:

    @Dean:

    The fact that the Supreme Court let them off the hook by declaring it is a tax was luck and not by design.

    The justices did not invent the argument for the government, Dean. The government presented that argument, based on the legislation as written.

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  106. Rodger says:

    @Dean:

    I guess you didn’t read earlier comments because someone else already posted the link to the vodeo. In the interview, as the transcript clearly reveals, the President says ACA is not a tax *increase*. He does not say it is not a tax.

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  107. Rodger says:

    @Dean:

    Again, read earlier comments. The Obama administration has been arguing that ACA was defensible as a tax since at least mid-July 2010. The Supreme Court didn’t invent the claim. Plus, you know, the law is enforced by the IRS through the tax code… Doesn’t that seem like a design decision?

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  108. Andy says:

    @john personna: Actually, the “death panels” incident wasn’t trying to control costs – it was trying to create another billable expense for doctors.

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  109. Dean says:

    @Rodger: How is a new tax not a tax increase?

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  110. Andy says:

    @Rodger:

    In the interview, as the transcript clearly reveals, the President says ACA is not a tax *increase*. He does not say it is not a tax.

    Well, he never actually said it was a tax either. Maybe that’s significant?

    Also, explain how a newly-created tax is not a tax increase? Obviously for some people and businesses it will be a tax increase because it’s a new tax! Can’t have it both ways…. The President doesn’t want to admit that for political reasons (and I can’t really blame him for it).

    Look, you can parse and nuance this all you want, but the simple fact is that the administration avoided talking about the ACA as a “tax” simply because taxes are unpopular. They sold it as something other than a tax, but then used the tax argument as one of several legal justifications. That’s also why the administration uses “spending reductions in the tax code” as a euphemism because they don’t want to get caught on video saying something is a “tax increase.” This little deception isn’t the huge deal the right is making it out to be, but it’s surely legitimate politics to point out the administration hasn’t been completely and consistently honest about this “tax.”

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  111. @Andy:

    They wanted doctors to consult with patients to make end-of-life plans, but the motivation for that was ultimate cost savings. The idea is that most elders don’t really want to live their last 20 days on life support, and that with a written plan their children would know what to do.

    An hour of consult is much cheaper than even one day of life support.

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  112. Andy says:

    @john personna:

    Doctors are already doing end-of-life consulting. Don’t ask me how I know. The proposal was simply to let doctors bill for something most of them are already doing. That’s not cost savings – that’s a pay increase for doctors. It’s part of the FFS trend to disaggregate everything in the medical profession and give it a billing code.

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  113. @Andy:

    If all Medicare and state programs recipients do indeed get end-of-life counseling, and do indeed create a plan, I withdraw my comment.

    But when you say “Doctors are already doing end-of-life consulting” do you really mean that all recipients get it?

    Do you really mean there would be no net savings with expanded plans?

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  114. (As I recall, a Republican MD in Congress made a similar hair-splitting argument. End of life counseling was good, he said, but that didn’t mean that government should pay for it. Well, that’s a philosophical argument, and does not negate the cost savings argument … not if some significant slice of program recipients could benefit.)

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  115. @john personna:

    no, the Dems tried to contain costs and got hit with “death panels” as a result

    If they’d gone into the debate from the standpoint of “the only way to control costs is by limiting access, but we believe this leave most of you better off in the long run because…” they wouldn’t have gotten “hit with ‘death panels'” because they’d have been prepared to debate the issue. The only reason they got hit is because they were trying to push a “if you like your healthcare now, you can keep it” line that could only last as long as no one really paid attention to their details.

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  116. Dean says:

    @Rodger:

    The New York Times didn’t buy the argument it was a tax by design:

    In defending the law, the Justice Department has taken a legal position — that the health care act constitutes a tax — that contradicts the political stance taken by President Obama. To do that, it has relied on legal semantics to argue that the insurance mandate will be enforced through the tax code even though Congress took pains to label it a penalty and not a tax.

    http://www.nytimes.com/2012/03/27/health/policy/arguing-that-health-mandate-is-not-a-tax-except-when-it-is.html

    So, which is it a tax by design or the Democrats who passed the bill weren’t being truthful during the run-up to the vote of the bill?

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  117. @Andy:

    When I enjoy a tax-free freedom today that is going to be coercively taxed tomorrow, how is my liberty not diminished thereby?

    The ACA’s key provision now amounts to an invitation to buy insurance, rather than an order to do so, with a not-very-big tax penalty for going without.

    Oh, sure: do this or else I will beat you with a baseball bat under the Commerce Clause. Oh, wait, can’t do that? Okay, I’ll smack you with a pool cue under taxing authority.

    What restrains Congress from making the penalty tax 40 or 50 percent of AGI? Nothing, period.

    BTW, just to get the Left to wake the heck up, the ruling today means that Congress now has the Constitutional power to make you buy a firearm and ammunition.

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  118. David M says:

    @Donald Sensing:

    When I enjoy a tax-free freedom today that is going to be coercively taxed tomorrow, how is my liberty not diminished thereby?

    You may see your liberty diminished, while I see mine increase. No longer can you free-ride and pass on your medical costs to the rest of us (at least without a penalty), and I can now purchase health insurance without worrying about preexisting conditions. Somehow I don’t feel less free.

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  119. Andy says:

    @john personna:

    But when you say “Doctors are already doing end-of-life consulting” do you really mean that all recipients get it?

    I doubt all recipients get it, but I have no way of knowing. Of course, making it a billable expense is likely to increase the number of doctors performing this service whether it is necessary or not, but it certainly doesn’t guarantee that everyone will get end of life coverage.

    Do you really mean there would be no net savings with expanded plans?

    Why would there be? If adding additional services to our FFS system actually produced net savings, then we’d have the lowest-cost health care on the planet. As it stands, there’s no evidence there would be any net savings and a lot of reasons to believe the opposite. In order to assert there would be net savings you have to believe two assumptions would be true:

    1. That this change would prompt doctors to begin advising patients to take lower-cost alternatives than is presently the case, and

    2. That patients will actually take that advice and choose lower-cost options.

    How likely are those?

    Doctors get paid based on services they provide and they get paid more for performing more services in our system. It is unreasonable to expect doctors to, in response to the creation of this billable expense, suddenly act against financial self-interest (consciously or not) and recommend low-cost end-of-life alternatives as a response to adding this as a billable expense.

    Philosophically, I think doctors should be providing this service. Practically, I think the assertion that paying doctors in a FFS system to provide this service will result in cost savings is, at best, uncertain conjecture. More likely it will simply increase utilization and increased doctor compensation and result in an increase in costs not a decrease.

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  120. Rodger says:

    @Dean:

    What is the dilemma here? The only example of a Democrat saying the ACA was not a tax is the one from Obama. Again, the NYT truncates Obama’s position, leaving out the word “increase.”

    The mandate was designed to be enforced by a penalty in the tax code. Both the House and Senate bills clearly used that entirely constitutional mechanism for enforcement. Democrats argued (and the CBO agreed ) that the overall effect was reduced health care costs (and lower tax burdens); thus, it did not increase taxes. At the time, Dems were fending off spurious claims from the right and industry that ACA was a government takeover of health care.

    Yes, a person will hypothetically face a tax penalty if s/he does not comply with the individual mandate. Nobody has ever denied that. A penalty under the tax code is not the same as an across-the board tax increase (which is what political foes were trying to claim would happen and Dems were denying), but it is also a constitutional use of Congress’s taxing power.

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  121. Andy says:

    @Donald Sensing:

    What restrains Congress from making the penalty tax 40 or 50 percent of AGI? Nothing, period.

    What restrains Congress from implementing a 70% flat tax? The penalty here, for individuals at least, is much lower than the cost of coverage and it simply won’t apply to most people because most people already have coverage. If there’s anything to worry about, it’s that Congress will come up with more “tax penalties” for inactivity, but those proposals, should they come, can be fought on a case-by-case basis. Compared to the alternative of upholding the ACA under the commerce clause, this is a tremendous result for federalism and individual liberty.

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  122. Rodger says:

    @Andy:

    The tax is imposed as a penalty. In theory, no one will have to pay it because everyone could comply. Keep in mind that there are measures in the law to make insurance affordable to those who might not be able to pay. The only tax increase is for those (few?) who disobey the law.

    As I’ve explained elsewhere on this thread, Dems were fending off disingenuous critics who claimed this was a government takeover of health care and that the bill would increase costs and taxes for everyone. The administration contested these claims and CBO agreed the net effect of the bill was reduced health care costs. At worst, this is a “tax reform” that redistributes payments. You and I may pay less in taxes because people without health insurance will no longer receive free care in public emergency room settings. Millions of customers either pay for (subsidized in many cases) insurance up front or pay the tax penalty for non-compliance.

    At the time, Republicans argued that tax enforcement provisions were too weak and non-compliance could be too high. IOW, they were making inconsistent arguments as well to appeal to their own constituents.

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  123. @Andy:

    Here is Kaiser’s analysis. From that:

    Both opponents and proponents of the legislation acknowledge that it could produce significant savings. Studies show that 25 percent of the Medicare budget is spent on people during their final year of life – with 40 percent of that spent in the final month.

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  124. You know, to drive the point home, the counseling thing is like a microcosm of the whole health care debate.

    Republicans would rather pay more, if it satisfies their ideology.

    Counseling would save money, but counseling is socialist, right? So we can’t do it.

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  125. @Rodger:

    CBO agreed the net effect of the bill was reduced health care costs.

    This is something of a circular argument here. When the CBO scores a bill, it has to do so on the basis of assumptions that congress tells it to use, regardless of how realistics those assumption are. So while the CBO scoring of a bill should be taken into account when evaluating a bill, it shouldn’t be treated as an independent analysis of the proposal.

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  126. @Stormy Dragon:

    When the CBO scores a bill, it has to do so on the basis of assumptions that congress tells it to use, regardless of how realistics those assumption are.

    I believe that was not traditionally the case. I thought it was an innovation of the Ryan budget that it mandated numbers for CBO analysis.

    If there were mandated assumptions in the health care bill, I’m sure you can find them.

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  127. @Stormy Dragon:

    Here is the National Review complaining about CBO assumptions, but never do they say they were mandated. They only say that they could be wrong.

    I believe those assumptions were made in good faith. Again, look for a link if you want to show otherwise.

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  128. mattb says:

    @Dean:

    So, which is it a tax by design or the Democrats who passed the bill weren’t being truthful during the run-up to the vote of the bill?

    I’d have to say “yes” to both. The law had enough tax-like elements to make it essentially a tax. And “yes”, the Dems did not emphasize that fact in the name of political expedience.

    However, before you continue to be incensed about the “deception,” we need to be honest that this playing fast and loose with the truth in a way that both sides typically do in US politics.

    As I said on another thread, dressing a tax up as a “mandate” is in my mind the same type of political move as enacting a “temporary” tax cut knowing full well that once in place it will be all but impossible to overturn. Likewise it’s similiar to, after passing that “temporary” tax cut, to turn around and refer to what happens when the cut runs it’s planned course and expires as choosing to “raise your taxes” or in the recent case “the Obama tax increase.”

    When you think about it, since it was the “Bush Tax Cuts” then the related return to previous levels should have been the “Bush Tax Increase” given that he was the one who signed the increase into law.

    Beyond that, I think most of us tend to engage in this sort of wordplay at times to ensure we get our way or see that our position is heard.

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  129. anjin-san says:

    They are taking our freedoms left and right.

    What freedom do you think you are losing? The freedom to be a freeloader?

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  130. @David M:

    Except that if I am paying for my own expenses out of pocket because I own a gold mine (for example), how exactly am I freeloading? I would say that if I buy health insurance I don’t need, then my premium payments are subsidizing you, and that makes you the freeloader, doesn’t it?

    And if ACA exempts some states and many large corporations, aren’t they freeloading, too?

    A slippery slope indeed.

    But again, folks are missing the point. The horrible thing about this ruling is not its relationship to the matter at hand, the ACA. Even if (by a miracle) the Republicans crush the Democrats this fall and take supermajorities of both houses as well as Romney victor, and Romney signs the repeal of all of the ACA on the way to his first inaugural ball – the ruling still stands that the ACA was within the Constitutional taxing power . Repealing the ACA does not repeal the ruling.

    Any future Congress, including my hypothetical super-majority Republican Congress, can seize on this ruling to compel Americans to do anything it wants them to do. That”s why I wrote on my own site that liberals should be aghast at this ruling, because that hypothetical Congress now has the taxing power to compel any adult to buy a firearm and complete training for a concealed-carry permit. Oh, you don’t want to do that? No problem, just pay the IRS $1,000 for noncompliance and have a nice day.

    How can anyone possibly laud this ruling?

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  131. Andy says:

    @john personna:

    You know, to drive the point home, the counseling thing is like a microcosm of the whole health care debate.

    Republicans would rather pay more, if it satisfies their ideology.

    Counseling would save money, but counseling is socialist, right? So we can’t do it.

    Good thing that I’m not a Republican and not satisfying my ideology then, huh?

    From your link:

    Medicare typically pays $92.33 for a 40 minute consultation, which Epperly says “drastically underpays for the complexity and the importance of this discussion,” adding that the creation of a new code – as called for in the House bill – would better value its importance.

    Under the current payment system, Epperly notes, doctors could see five patients or complete a more lucrative procedure in the time it would take them to have an in-depth end-of-life consultation.

    You see, this is just a raise for doctors. Somehow, paying doctors over a $100 an hour is “drastically underpaying” them to do something they should be doing as a matter of professional ethics.

    Look, I think end-of-life counseling as described is important and I’m not opposed to doctors getting paid for it (and they are, right now, getting paid for it, just not as much as they think they deserve). I’m simply skeptical that increasing doctor pay in this one area is going to result in the cost-savings that are alleged. Plus, if end-of-live counseling is made competitive with those other unnamed things doctors could do with that 40 minutes, then what happens to those other things? Will they fall down the priority list, not get accomplished, thereby causing other problems? These are the effects of the perverse incentives of a piece-work, FFS payment system. You simply cannot declare that savings “would” occur because there isn’t data to show that it “would.” Therefore, the savings could occur, but we should be clear upfront that this would be an experiment and so we shouldn’t count on or assume savings until they are actually realized and calculated.

    So for me, this is just another example which shows that ditching FFS is the most critical component in health care reform. The idea that we can tinker with the present system and realize cost savings from our tinkering is little more than wishful thinking.

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  132. al-Ameda says:

    All the complexity and sloppiness in ACA is because politically it was impossible to get a bill passed with a Public Option.

    Because we are unwilling to move our system over to a Single Payer Insurance system, we sentence ourselves to higher costs and lower health outcomes. Other countries insure all of their citizens at 40% to 50% less per capita cost and have better health outcomes. We, apparently, are unable to make a rational change.

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  133. David M says:

    @Donald Sensing:

    Except that if I am paying for my own expenses out of pocket because I own a gold mine (for example), how exactly am I freeloading?

    Are some multi-millionaires wealthy enough to pay for all their likely medical costs out of pocket? Sure, but so what? Really, I seriously don’t give a crap about someone worth 8 figures paying $695 more in taxes because they are an idiot.

    I would say that if I buy health insurance I don’t need, then my premium payments are subsidizing you, and that makes you the freeloader, doesn’t it?

    There’s no such thing as health insurance you don’t need.

    And if ACA exempts some states and many large corporations, aren’t they freeloading, too?

    Major ACA understanding fail there. So off the mark it’s not even wrong or worth discussing.

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  134. @john personna:

    I believe those assumptions were made in good faith.

    I disagree that some of the assumptions were made in good faith, for example, the reduction in payment to doctors. This is a perennial problem with CBO scores. They always have to assume that starting next year medicare payments return to baseline because that’s when the current fix ends, even though a new fix has been passed every year for a long time. There’s a similar problem with the CBO calculation of the AMT (although that doesn’t effect their analysis in this case since it effects both scenarios equally) where they have to assume next year the AMT is going to return to the income levels in the law, even though again any reasonable person knows Congress is almost certain to pass another AMT fix like it has every year since the late 80s.

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  135. azwayne says:

    @Vast Variety: there is huge need of education in this country, Roberts was factually correct and gave congress the opening and responsibility they should use. Look at the wording in the legislation it cannot lawfully go into existence as worded. Congress must pass the TAX language and all related, how collected, who it goes to, clear amounts, or entire obamacare fiasco is illegal. Changing words and meanings in propaganda is NOT law. This whole bill was nothing but lawyer job creation anyway. Just keep in mind this has nothing to do with anyone’s health CARE, this is only abour government taking over health INSURANCE MONEY. Make comments relevant.

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  136. mattb says:

    @azwayne:

    Look at the wording in the legislation it cannot lawfully go into existence as worded.

    Ummm… 5 out of 9 Supreme Court Justices disagree with you. Sorry bub, but your reasoning fails. The legislation IS law. Plain and simple.

    Make comments relevant.

    Ummm… ok, but you know you should really start by posting something that, you know, is based in actual *fact* versus your own twisted reasoning.

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  137. Morelogic says:

    @john personna: @Stormy Dragon: Roberts, a court appointee by George Bush, is not jumping the track to bail out Obama and the Democrat Congress on the individual mandate. He actually threw Obama an anchor guised as a lifesaver. Obama wins the battle but will lose the war (come November). This was the turning point – Obama just picked up his sixth foul in overtime on a charge, but scoring the bucket, putting his team up by one. However, the other team goes to the line one the other end, shooting two, by the leagues top free-throw shooter with .01 seconds left on the clock. Referree Chief Justice Roberts made the call, scoring the bucket by Obama, but calling an offensive charge foul against Obama in the process.

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  138. john personna says:

    @Morelogic:

    You know, when you remove the rhetoric and sports analogies … there isn’t actually anything there 😉

    Why is Romney, I mean Obama, Care bad? Because you can actually show that it’s bad in Mass or elsewhere? Or because you just hate it emotionally?

    Seriously, Romney Care is working out well in Mass, and now that we know it’s constitutional, what’s the problem?

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