dayman

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.

LOL c'mon Tom. You think I would put my high value PPP reputation (as the clear cut most brilliant and nonpartisan speaker of the truth) on the line by falsifying something that would within a matter of minutes (or months on PPP or CNN) be corrected? No way. (It goes w/ out saying if anyone really wants to understand it in true detail you just have to read it...but as I said it's not out of order it's merely edited so people can get the gist w/ out reading 80 pages I didn't distort it to my knowledge beyond shortening it) And in any event I should synthesize Scalia (if nothing more than to prompt discussion) and why it isn't a tax, the man is more learned than I will ever be but his methods of reason are nuts to me ... so it may be a bit. I once thought I was a Scalia fan long ago before I read ... so it will be fun to me since I'm lame. (and honestly if Scalia was the majority he would be what you see above first...b/c he would be the law)

LOL watching a daily show on DVR he's killing Fox news and CNN for their retarded reporting initially to be the first to report w/ out reading. To MSNBCs credit (shocking even to me seriously...) they never got it wrong and to FOx's credit (some credit is due) they corrected it VERY quickly...CNN went on for 7 minutes w/ out a clue morphing into full "not constitutional mode". LOL it is funny regardless of party that it happened and the bit. Fox bit the bullet but basically recovered instantly but CNN...my god CNN

It is my fault for posting that here. Let's debate the policy in the other topic. Lets keep it legal in here.

What it does is make acquiring healthcare easier, and it's a tax penalty if you choose not to. It's not a tax "increase." Now the truth is it will straight up be a .9% tax increase on people making over 200K a year in a few years. So that's your ammo, just to help you out. It is a tax increase of less than 1% on those making over 200K. Other than that, it makes acquiring health insurance and w/ a penalty if you refuse. And btw the tax penalty, is not much. At no point is it greater than the average cost of healthcare (or less than $700) that meets the standards and to be practical if you don't have healthcare under the new system it's going to be $1000ish a year or less unless you are a self destructive idiot. In any event we should move this entire debate to the other topic this topic title is embarrassing for all of America and yes...even by PPP standards.

No solutions? Just "you don't have to buy health insurance and if you are sick you don't have to seek care" as you said in the other topic? And you expect to be taken seriously? Even the furthest of all anti-ACA don't say that. You discredit yourself. You don't understand your own industry and what it is doing to the country. And that isn't an attack on doctors in general. But I hate to break it to you, b/c you are in the industry doesn't mean you even have a clue what the problem is (apparently) or what the ACA is. The ACA is the law, so lets make it better. Or, if repeal is in order...lets hear what will take its place and how it is so different from the ACA that repeal must take place. C'mon Doc. You hate on it vehemently and claim it will destroy medicine. Why? And what would be better. America is listening. There is a debate. Feel free to join.

But...but...then the GOP can't play the tape over and over again where Obama is asked why it isn't fair to characterize the bill as a TAX INCREASE (referring to the mandate) and objecting to that (b/c it's a tax penalty)...and claim he was saying it wasn't a "tax." And in any event, even had he claimed that it is technically wrong b/c people making over 200K a year will experience a .9% tax increase in 2 years so it is a tax anyway...the point being...it takes money to fix problems and this was designed to take as little as we could figure out while preserving private health care insurance (which most Americans want). So no, the mandate is not a tax increase it is a tax penalty. Yes the ACA has a tax increase for some in it (.9% for those making over 200K a year). But the point it...WHO CARES. You can't fix it "with out costing you a dime" like idiot Bachmann said on O'Reilly today. It's nonsense. At some point political have to be honest with themselves. STOP IT!

So lets here it. There's basically Sweeden (aka Romneycare/ACA/Obamacare) or Canada (single payer) if you ACTUALLY want to address the preexisting injury people not having access. Now I know what you will say...."I don't care about the uninsured only costs!" but as is the system isn't working even w/ out that. No costs dropping. Still uninsured. Still most expensive medical system w/ out anything to show of it. Romney says the preexisting injury crowd needs addressing, b/c he's not actually a heartless bastard. And any idiot knows there needs to be government reform. He clearly felt that way in Mass. The completely private system is not fixing itself. There is clearly a need for government. And guess what...Republicans who say they can fix it and help those w/ out access and it won't cost a dime are just lying! Shocking I know. Completely shocking. So what is the choice Romney? Romneycare or Single Payer? We know the answer. And if it's the private sector compromise then guess what...a true step forward is to make the ACA better and move forward. But that would *gasp* make his position the same as Obama. And he can't win an election on the backs of the crazy right talking like that. So lets here the solution. Lets here the answer, that costs nothing and is so different from Obamacare that it should be repealed dead. Actually....lets here a few specific aspects of the bill that are going to destroy medicine. "Too many people now can afford it and there aren't enough doctors!" Oh...I guess we should be sure to lock them out and pay for them in the end anyway? Now yes, I've been a dick in what I've written above...but lets hear it...go. I want to here what you actually have to say.

Says the man who's AMA doctrine is "no healthcare reform at all even if it is disastrous as is." Can you not work to within a cooperative setting to make government work as opposed to declaring it should not exist?

Not a big Sorkin fan and it screams Sorkin but I enjoyed the first episode. Interesting premise. TV is better that it exists and everyone should give it a shot. Good first episode IMO but we'll see where it goes. Clear liberal agenda but at the same time it's clear it will take shots at everything and the media first and foremost which is only productive. The media is primarily responsible for our ridiculousness political system...be it talk/cable news/what-have-you.

LOL I absolutely knew that was coming. 100%. My view stands, just b/c I'm a lawyer does not mean I would not be against tort reform and I am not in MedMal anyway. In any event, Obamacare actually has some tort reform in it you would like. Edit: And as I stated anyway I am not staunchly opposed to "all" tort reform just most of it.

It doesn't matter what I am. I am just a person. But yes. And that is all I will say about it

Thanks for reading all of you (even if not this then the actual opinion). And I know you all know I lean left and I know you all lean right but I do love debating this stuff with anyone who will entertain it so even if we have different views while I (may arguably ) cross the line into blatant partisanship elsewhere I would like to somehow declare (not that I can lol) that it is not what I intend to do here. It doesn't matter what someone calls something though that isn't how the law works. If they called it a tax and it was clearly a penalty outside the scope of commerce clause that would not get it through. Constitutional analysis is substance over form. Same all over the law. If you draft your will wrong your corpse is SOL. If you **** up your contract w/ someone you are SOL. If you try to assign and interest in land and what you've actually done is lease it you are SOL. Etc... That's fair. And personally to hear that criticism from fellow citizens is infinitely more promising than to hear people say they agree w/ Scalia's approach. I won't get into it now in this post but fundamentally I am not an "originalist" (b/c unlike Scalia I don't know the minds of more than a dozen non-homogeneous framers) or a "strict textualist" in the slightest and it's not political I've read a lot of the mans opinions many of them are absurd...far more absurd than most find this one to be. I may do a write up on his dissent re: tax argument but it's brutal...reading his opinions... Point being acknowledging that you should look to function over form and that they just got it wrong here is miles better than the word splicing you will get from Scalia. Well actually things would have went much better if the DOJ would have been willing to call it tax more readily. They basically would do that only as a last resort. And in any event...Supreme Court isn't applying the smell test regardless of either side. I didn't post the anti-injunction section but it is fairly straight forward and there is legal reasoning but I wouldn't be able to say with a straight face there was absolutely no judicial acrobatics involved there. That said that act is not the constitution and the analysis and history of it's application (as C.J. points out) requires a different analysis. But I understand how "it's a penalty for the anti-injunction act" and "it's a tax per when given constitutional muster" doesn't sit well with anyone but fellow lawyers. lol...that much is clear

..he who lives in a glass house

It's worth noting there was no reference to the Senate argument within Scalia's dissent and he analyzed the reasons it was not a tax in great detail. In the sausage making that is the legislative process it seems should the house acquiesce that is sufficient. Impossible that Scalia would leave that out as ammo for his "regulation not tax" position. The Thomas dissent in its entirety: I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the IndividualMandate is beyond the power granted to Congress un-der the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate“economic activity [that] substantially affects interstatecommerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545 U. S. 1, 67–69 (2005) (THOMAS, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedentedclaim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.

You need not fear. To me the tax section of Roberts opinion makes a much more compelling case than anything that has ever been advanced under the commerce clause. And as predicted, Scalia's word splicing, textualist, never functional, analysis in his dissent was absurd. Scalia basically consented this was within the taxing power (without reaching much analysis on the point) but that since it doesn't use the word tax it is not a tax. He says at one point if they added "in the alternative it is not a penalty but a tax" those magic words would have done the trick. What and joke he's become taking his textualism to the extreme.

LOL holy God Issa is in rare form CSPAN has never been so entertaining. What a dick. Epic fake-yield of time there.

And looks like that is that.

Dante is under the impression that our healthcare system was working well w/ out "government" that we somehow only now have? Government is always in healthcare. They've just took a step to make things better.

Contempt vote to happen on CSPAN soon. Issa further spewing garbage as I type.