Obamacare and the Supreme Court

[calicoug]

Everybody who knows Cali knows how he gets down.

Like this.

[calicoug]

Yes, the tax argument was there but the Solicitor General didn't use it in oral argument, probably because it makes the Democrats and the White House look so duplicitous.

No, that's actually not true either. The SG did use it in oral argument and in the brief.

Here's Verilli from oral argument:

GENERAL VERRILLI: They may still be exercise of the tax — exercises of the taxing power, Justice Ginsburg, as — as this is, and I think there isn't a case in which the Court has, to my mind, suggested anything that bears this many indicia of a tax can't be considered as an exercise of the taxing power. In fact, it seems to me the License Tax Cases point you in the opposite direction. And beyond that your -*the — it seems to me the right way to think about this question is whether it is capable of being understood as an exercise of the tax.

JUSTICE SCALIA: The President said it wasn't a tax, didn't he?

GENERAL VERRILLI: Well, Justice Scalia, what the — two things about that, first, as it seems to me, what matters is what power Congress was exercising. And they were — and I think it's clear that — that the — the — they were exercising the tax power as well as -

JUSTICE SCALIA: You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power. I'm just addressing the first.

GENERAL VERRILLI: If the President said -

JUSTICE SCALIA: Is it a tax or not a tax? The President didn't think it was.

GENERAL VERRILLI: The President said it wasn't a tax increase because it ought to be understood as an incentive to get people to have insurance.

I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not.

JUSTICE GINSBURG: A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk — risk pool before they need medical care, and so it will be successful. If it doesn't raise any revenue, if it gets people to buy the insurance, that's — that's what this penalty is — this penalty is designed to affect conduct.

The conduct is buy health protection, buy health insurance before you have a need for medical care. That's what the penalty is designed to do, not to raise revenue.

GENERAL VERRILLI: That — that is true, Justice Ginsburg. This is also true of the marijuana tax that was withheld in Sanchez. That's commonly true of penalties under the Code. They do — if they raise revenue, they are exercises of the taxing power, but their purpose is not to raise revenue. Their purpose is to discourage behavior.

I mean, the — the mortgage deduction works that way. When the mortgage deduction is — it's clearly an exercise of the taxing power. When it's successful it raises less revenue for the Federal Government. It's still an exercise of the taxing power. So, I don't -

JUSTICE KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said this is not a tax, and the question is why should that be irrelevant?

GENERAL VERRILLI: I don't think that that's a fair characterization of the actions of Congress here, Justice Kagan. On the — December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to39 on that proposition.

The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that

Congress was avoiding any mention of the tax power.

It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's — not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.

CHIEF JUSTICE ROBERTS: Why didn't Congress call it a tax, then?

GENERAL VERRILLI: Well -

CHIEF JUSTICE ROBERTS: You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax?

GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is — in the Internal Revenue Code it is collected by the IRS on April 15th. I don't think this is a situation in which you can say -

CHIEF JUSTICE ROBERTS: Well, that's the reason. They thought it might be more effective if they called it a penalty.

GENERAL VERRILLI: Well, I — you know, I don't — there is nothing that I know of that — that illuminates that, but certainly -

JUSTICE SOTOMAYOR: General, the problem goes back to the limiting principle. Is this simply anything that raises revenue that Congress can do?

GENERAL VERRILLI: No. There are certain limiting principles under the -

JUSTICE SOTOMAYOR: So there has to be a limiting principle -

GENERAL VERRILLI: — taxing power, and they — and I think, of course, the Constitution imposes some, got to be uniform, can't be taxed on exports, if it's a direct tax, it's got to be apportioned. Beyond that, the limiting principle, as the Court has identified from Drexel Furniture to Kurth Ranch, is that it can't be punishment, punitive in the guise of a tax. And there are three factors of Court has identified to look at that.

The first is the sanction and how disproportionate it is to the conduct; the second is whether there is scienter; and the third is whether there is an — an — an administrative apparatus out there to enforce the tax.

Now in — in Bailey v. Drexel Furniture, for example, the tax was 10 percent of the company's profits, even if they had only one child laborer for one day. There was a scienter requirement, and it was enforced by the Department of Labor. It wasn't just collected by the Internal Revenue Service.

Here you don't have any of those things. This — the — the penalty is calculated to be no more than, at most, the equivalent of what one would have paid for insurance if you forgone. There is no scienter requirement, there is no enforcement apparatus out there. So, certain -

JUSTICE ALITO: Can the — can the mandate be viewed as tax if it does impose a requirement on people who are not subject to the penalty or the tax?

GENERAL VERRILLI: I think it could, for the reasons I — I discussed yesterday. I don't think it can or should be read that way. But if there is any doubt about that, Your Honor, if there is — if — if it is the view of the Court that it can't be, then I think the — the right way to handle this case is by analogy to New York v. United States, in which the — the Court read the shall provision, shall handle the level of radioactive waste as setting the predicate, and then the other provisions were merely incentives to get the predicate met, and

JUSTICE SCALIA: You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause blah, blah, blah, it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?

GENERAL VERRILLI: It — it used its powers together to solve the problem of the market not -

JUSTICE SCALIA: Yes, but you didn't need that.

GENERAL VERRILLI — providing for the -

JUSTICE SCALIA: You didn't need that. If it's a tax, it's only — raising money is enough.

GENERAL VERRILLI: It's justifiable under its tax power.

This was only one snippet from oral argument. The tax issue was heavily focused on (people may recall the lengthy exchanges about why it is a tax under the Constitution but not under the Anti-Injunction Act too).

What else have you got LA?

[LA Ute]

No, that's actually not true either. The SG did use it in oral argument and in the brief.

Here's Verilli from oral argument:



This was only one snippet from oral argument. The tax issue was heavily focused on (people may recall the lengthy exchanges about why it is a tax under the Constitution but not under the Anti-Injunction Act too).

What else have you got LA?

Touche, I forgot about that exchange. I do recall hearing it on the audio. It still was not the primary basis for defending the law.

But answer me this: Why didn't the Democrats in Congress, or the president, call it a tax when they were passing it?

[venkman]

He sided with the conservatives on every major legal question being decided-
*Commerce Clause doesn't justify the mandate
*Necessary and proper doesn't justify the mandate
*Federal govt can't punish states on Medicaid

And as much as the outcome went against what most conservatives wanted, even his tax loophole was arguably an act of judicial conservatism - i.e. restraint in not overextending the authority of the Court.

The first stage is denial.


It's actually sort of delusional IMO to call this conservative. I think Mark Steyn has it right:

http://www.nationalreview.com/articl...ark-steyn?pg=1

“The United States is the only Western nation in which our rulers invoke the Constitution for the purpose of overriding it — or, at any rate, torturing its language beyond repair.”

[LA Ute]

But answer me this: Why didn't the Democrats in Congress, or the president, call it a tax when they were passing it?

[Uncle Ted]

But answer me this: Why didn't the Democrats in Congress, or the president, call it a tax when they were passing it?

Oh, that is just all "washington talk" and technical terms that people don't care about...

[YOUTUBE]Oz6fu_b17uk[/YOUTUBE]

[calicoug]

Touche, I forgot about that exchange. I do recall hearing it on the audio. It still was not the primary basis for defending the law.

But answer me this: Why didn't the Democrats in Congress, or the president, call it a tax when they were passing it?

Calling anything a tax is bad politics. And they can say there is no tax if people get insurance. It's a half truth and misleading.

[Katy Lied]

Did you just answer your own post?

[Uncle Ted]

Calling anything a tax is bad politics. And they can say there is no tax if people get insurance. It's a half truth and misleading.

"It's not a tax hike. It is a fee, an assessment"...

[YOUTUBE]HymUU7OADbU[/YOUTUBE]

Same crap, different day.

Edit: Was Romneycare challenged in the mass supreme court? If so, I wonder what this "assessment fee" was called there.

[LA Ute]

Did you just answer your own post?

I guess so, in a manner of speaking. Really just bumped it in the process of tweaking cali.

[All-American]

Calling anything a tax is bad politics. And they can say there is no tax if people get insurance. It's a half truth and misleading.

Kind of like how the wealthy won't be paying the excessive taxes Obama is trying to impose, because there won't be any wealthy people left. So is that a penalty on wealth, then?

[calicoug]

Kind of like how the wealthy won't be paying the excessive taxes Obama is trying to impose, because there won't be any wealthy people left. So is that a penalty on wealth, then?

Are you the same guy as AA on CG? This version of AA is quite a bit less rational and much more prone to hyperbole.

[LA Ute]

A handy listing of tax hikes resulting from the ironically-named Affordable Care Act.

[All-American]

Are you the same guy as AA on CG? This version of AA is quite a bit less rational and much more prone to hyperbole.

My apologies; I'll be sure to run any future submissions by you first so you can tell me if I am being rational enough for the likes of CUF.

[Indy Coug]

Are you the same guy as AA on CG? This version of AA is quite a bit less rational and much more prone to hyperbole.

Link?