dayman

Haha, I will agree that you find the dissent more compelling and I find the controlling law a better ruling. (in other words I'm right and your wrong )

As is always the case the court does not rule beyond what is necessary. As such you don't he didn't proclaim a bright line rule as he found: We have already explained that the shared responsibil¬ity payment’s practical characteristics pass muster as atax under our narrowest interpretations of the taxing power. That's not to say he was without comment, just read the back half of the summary on the first page. There you will find factors and considerations he used to reach that conclusion. As for the broader end of that spectrum, he references cases where they "policed these limits aggressively"...(so we could read those cases for more information on the outer limits) Just read the short summary in the first post for more specifics all the quotes in this post are taken from there.

The Congress can monkey with appellate jurisdiction b/c it is expressly in the text of the constitution. That's besides the point. The challenge to the validity of the Mandate necessarily turns on whether it's an exercise of commerce clause or taxing clause power. The Anti-Injunction act is relevant not b/c it would invalidate it but as you said early, it would effect standing. The relationship between creatures of congress to themselves and to the constitution is inherently different. As for there being no limits on the taxing power, that ignores the entire opinion Roberts wrote. While the limits are far broader than under the commerce clause, he went through the tax analysis precisely b/c at some point an exercise of that power ceases to be a taxing clause question and crosses over into the more limited commerce clause power. There is case law on that issue, and will no doubt be more in the future.

What you have described is your experience with your health insurance company. Nothing more. Lucky for you, the ACA will help people like you in the future a lot by regulating the behavior of insurance more closely and controlling the price of drugs. To suggest that is insurance generally, it wrong. I don't blame you for feeling as you do about your own policy/company and situation under those facts. Once again btw, many insurance companies have no investors and run not for profit models. And many that run for profit models vary in terms of their response to stories such as yours. Characterizing the entire insurance industry based on that example, is no accurate for the purposes of this discussion. Generally speaking the profit they pull is between 2 and 3 percent.

The anti-injunction argument is pretty basic actually. It's a statute, it's a creature of Congress. The Constitution is not. The Congress could not expand their powers under Constitution by labeling..that would be absurd, for that analysis the court must look to the substance of what Congress is doing and whether it is within their power. For the purpose of how their own statutes relate to each other however, a more textual approach is appropriate. How creations of Congress relate to each other is fairly cut and dry, look to what Congress wrote. And as Roberts said that has been the practice: Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat itas such under the Anti-Injunction Act because it functionslike a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congressmay not, for example, expand its power under the TaxingClause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.” See Bailey v. Drexel Furniture Co., 259U. S. 20, 36–37 (1922); Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 779 (1994). The Anti-Injunction Act and the Affordable Care Act,however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the bestevidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate. See Bailey v. George, 259 U. S. 16 (1922) (Anti-InjunctionAct applies to “Child Labor Tax” struck down as exceeding Congress’s taxing power in Drexel Furniture). Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act. For example, 26 U. S. C. §6671(a) provides that “any reference in this title to ‘tax’ imposed by this title shall be deemed also to refer to the penalties and liabilities provided by” subchapter 68B of the Internal Revenue Code. When Roberts cites the absurdity of forcing someone to buy vegetables he is referring to that by regulatory authority. Not by taxing authority. And if you feel that the tax code should not be used as it has been, fair enough a lot of people feel that way. That's an issue for you to take up with Congress though, not the Supreme Court.

Yet: this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. -Scalia Dissent ...so they've never done it. At some point they had never done the above either. And if in fact the analysis goes to substance, I see no reason the door doesn't swing both ways. Well it's more that on one had we most decide what the law is and in doing so we must be mindful of the constitutional forces that pull in opposite directions and when the rubber meets the road with issues of federalism, spereation of powers, constitutional construction, and then...the anti-injunction act...it's clear that the creature of statute...the feeble (by comparison) anti-injunction act will be what is thrown under the buss (and obviously so). Even Scalia himself wasn't too pissed about that at least he didn't make a huge deal about it...

Scalia uses whatever suits him at the time. Thomas uses actual principle (regardless of what you think of that principle). In any event, I do agree that it is not the holding of the mandate as a tax but the Anti-Injunction analysis that was the most acrobatic. However, the absolute worst outcome for the country would have been to hold it a tax and then punt until 2015. Also, the analysis under that section does nothing of significance and is plausible enough...if the country was saved a crippling wait of uncertainty at the expense of the anti-injunction act that is nothing anybody can honestly say with a straight non-partisan face they care about.

Hard for me to see how the Conservative wing considers their opinion more conservative than Roberts. Federal v. State. Courts v. 2 branches. 2 sources of tension inherent in our system. If you can fairly construe it to be constitutional (as is your duty), and in such a way that narrows the possibility of future commerce clause expansion as well as bolstering States rights when is comes to taking some but not all the bribes the Federal Government will offer them...that to me is the most conservative holding there is. Splicing words in an asinine textualist nature and saying over and over the Federal government could have done this but that it's not what they could have done but what they did (while at the same time saying admitting it is your duty to "if at all possible" construe the statute as constitutional), looking to form over substance as to determine what they did...in general the dissenting opinion is just weak. But that's just me. And Scalia is typically weak to me when he gets his hard on textualist nonsense flowing. It was a tough case, and honestly given the apparent 3 approaches the court as a whole took....I have to say Roberts proved himself to be a good C.J. who IMO produced the best opinion of them all.

Consider the above before you walk around demonizing the insurance companies. (I believe I elaborated after you posted).

This is such a load of **** I stand in awe. Insurance has it's holes, but the crux of the problem is 5% of people using 50% of healthcare (end of life, fat unhealthy people), and providers being terribly inefficient which they are allowed to do based on the pay structure of insurance which followed the trend set by...you guessed it...medicare. Nobody anywhere in that system is anything but a rational actor, there are no evil people tanking America for personal gain. Most insurance companies make 2-3ish percent profit and a lot of them are not for profit anyway. Additionally the ACA mandates they used 80% of the money they take in on services and anything left over is paid back...on top of that the ACA is taxing the insurance companies more on that 20% left over. Plus they provide certain basic/preventative check up type services w/ no co-pay by law now...and they take you no matter how sick you are. In return of course, the mandate will compel people into the market. The bottom line is, as we all know, the cost of healthcare. There are some cost controls in medicare, and some substantial pay structure experimentation in Medicare to correct the trend it set itself decades ago. That of course, and unnecessarily sick people...people who are unGodly and unnecessarily fat and consume pills and operation after operation b/c they don't take care of themselves. And then of course the thing that every Republican said was "killing grandma" which is also reality...end of life care needs to have rational decision making in it. Every single other civilized nation realizes this. It's just insane to dump 100K into an extra year of ****ty quality of life for a 92 year old...that' sounds harsh....but it's the truth. And yes before anyone says anything, it would be the truth if it were me too. Long story short there are no "villains" but if you are looking for them they aren't the insurance companies. There's only one group that benefits from the rising costs and it sure as hell isn't them...we all know who that is....

And those were, one more time since I do not recall?

You can look around the world. There are virtues to the Sweedish system and drawbacks in the cost fighting effort. There are virtues to the system in Taiwan and there are drawbacks (politically this system is impossible in our country given our political madness and the gov't regulating premiums). And yes, believe it or not there are aspects of the British healthcare system that are positive, and I need not even mention there are drawbacks there. I still would not hesitate to say that given all the problems these other countries have with their approaches, the American system is a case study in "what not to do." So...where to go from here? In my opinion, we can start with the ACA, and move forward. There are a number of things in the ACA that do help some systemic problems today, there are a number of things that do help individuals today, there are a number of things that provide the seeds of change in medicare pay structure that should help the changes we must see over time, and of course there are a laundry list of things that are FAR from perfect and indeed some things that are just plain nonsense. So the question is, do you have a law that is perfect? Or do you have a starting point that can put us on the path to (in all likelihood) endless quest for perfectibility? Stop complaining, and tell your congressman and senators to shut the **** up, get to work, and make sure the good is implemented well, and mitigate the bad as well as destroying the toxic. It's called common sense.

Representation issues aside...you don't want a handful of unelected people sitting on life time appointments deciding what is and is no in the general welfare. If the issue is one of reform the basic system of representation we can talk but as we both know that would be entire different topic that could go 1000+ pages in an instant. It is important to have a constitution that sets some limits, but no words on paper can establish what is in the general welfare ... flawed as our system obviously is it's a dangerous assertion to imply that a group of appointed men w/ almost no accountability (in reality) after they take their lifetime seat should interpret what is and is not in our "general welfare" with anything more than the most deferential analysis. By statute the tax will never be more than the average cost of minimum essential coverage in your area. They have this in Taiwan. And it works great for them. Thing is, then the COST of CARE gets serious, and our doctors would NEVER EVER EVER do what their doctors do. But then again, the "entitlement" mentality is something that is a poor person problem the doctors are just fine they've earned their share. (I'm not anti-Doctor like that one poster btw just making a point). In any event we're moving towards the system they have in Sweeden, it's not a perfect law no law is...but it's a start and it's time to work on it. Some portions could theoretically be repealed that way, others can not. And I promise you, repealing the mandate and leaving some of those other provisions would drive insurance companies to the brink.

Semantics but b/c the court gave it this ruling it is right (until it's reversed). In any event the "general welfare" is ungodly broad in case law. Congress can spend for instance, "in the general welfare," to go break rocks on the moon if they want. "General welfare" is the "stretchiest" of phrases in Federal Conlaw. How do you make sure we don't spend on breaking moon rocks? You don't elect people who want to break moon rocks.

Take it up C.J. Roberts. It's a tax. And fyi it's 906 pages. I'm sure in the right font in could be 10,000 pages. So it could be 2700 pages if you wanted it make it. But it's 906 pages. Which is still a lot of pages.

Well that just isn't true. Maybe not in your circles...everyone knew it could be ruled on as a tax in legal circles. It was held a tax in lower courts long ago. Even here 3rdnlng and many others for instance, talked about the toothless nature of the mandate scathingly...basically making the argument unknowingly in previous healthcare threads. People can disagree but to say this is somehow unpredictable isn't true.

Your 10 year old kid is asking about the ACA? What in Gods name is going on in your house lol (just joking around btw don't take it the wrong way)

...hmmm....I'm not sure it adds any confusion to the issue though...it seems if anything to summarize the existing confusion over that issue in one sentence?

Nobody is above the fray at all times but we should all aspire to be above the fray don't you think?

Interesting enough. What kind of hypothetical are we talking about? Obviously anything with a "criminal nature" to it wouldn't fly under the Roberts analysis. And regardless of the character of the "tax," if it were directed a single person (or a small group of people) that would be strong evidence it is in fact it is in fact a penalty, no?

Well this case did affirmatively state that this wasn't valid under the commerce clause so it's not moving in that progression regarding regulation. As for money being involved making it a tax, it's pretty clear that whether it's a tax or a regulatory penalty turns on a functional analysis. Are there criminal penalties? Is the tax so punitive as to amount to a penalty? Questions like that. Something providing for only the paying of money w/ no criminal penalty and called a tax over and over again in the Bill could be ruled a regulatory penalty outside the scope of the commerce clause and of course (as here) the opposite is true.

What more would you have him say about the taxing power? Why do you not tink the Constitution allows it? If you don't think you like it that's one thing and that's policy, but why is it you think this tax is not authorized like all the other taxes?

Excerpts from Scalia dissent: This is nothing more than to get a feel for the tone basically. I will stand by the substantive core of the Roberts synopsis...if you want an understanding of Scalia (that I will stand by with equal confidence) then read it yourself. Nonetheless here are "some excerpts in order" ... however as I said and as I stress....the flow is nowhere near the same in terms of grasping what was written. In terms of being a "brief in the words of the justice" as much as the other is...this is significantly worse. It's not intentional or malicious but I started drinking (accidently heavily which I will regret ) a while ago and honestly Scalia is Scalia so the opinion is basically just analyzing text it's difficult to summarize... Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercis¬ing the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do. [commerce clause analysis] As far as §5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority,4 and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provi¬sion challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regu¬latory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so. we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty …. But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” … to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty. “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” … In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. When an act “adopt the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory pen¬alty, not a tax. So the question is, quite simply, whether the exaction here is imposed for violation of the law. It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential cover¬age.” Ibid. (emphasis added). And the immediately fol¬lowing provision states that, “f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.” several of Congress’ legislative “findings” with regard to §5000A confirm that it sets for the legal requirement and constitutes the assertion of regu¬latory power, not mere taxing power. [mutilple cites to ACA using word “requirement”] Here the mandate—the “shall”—is contained not in an inoperative preliminary recital, but in the dispositive operative provision itself the fact that Congress (in its own words) “imposed . . . a penalty …. it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act.” Or in the words of Chancel¬lor Kent: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlaw¬ful, though there be no prohibitory words in the statute.” penalty is attached is demonstrated by the fact that some are exempt from the tax who are not ex-empt from the mandate—a distinction that would make no sense if the mandate were not a mandate What counts is what the statute says, and that is entirely clear. It is worth noting, moreover, that these assurances contradict the Government’s position in related litigation Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a re¬quirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v),(f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scope—a feature that would be quite extraordinary for taxes. The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. …. where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement. And the nail in the coffin is that the mandate and pen¬alty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax. For all these reasons, to say that the Individual Man¬date merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Actof 1765, …. Impos¬ing a tax through judicial legislation inverts the constitu¬tional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

Not informed. Not your fault either.

I'm all ears as to what we should push that we can legally under current law.