Why the mandate was valid under taxing power

[DC Tom]

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.

 

Like I said...I'm giving you the benefit of the doubt. But I've learned from long experience: do it yourself. No one does my research for me.

 

(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.

 

Either way what you read is my best edit of the heart of Roberts reasoning re: mandate. It is important if people now care about the constitution it's awesome that they may be interested in understanding the opinions. (which is a good thing btw even if you are an originalist/textualist/"dead document" guy...)

 

Scalia always struck me as a little bit out there in his reasoning, too.

 

Roberts, I have to say, is turning out to be a pretty decent Chief Justice. Agree or disagree, every opinion I've read from him has been cogent and soundly reasoned, and he manifestly is judicial before political.

[dayman]

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.

[LeviF]

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.

Scalia is one of my favorite justices, but he pisses me off once in a while with his picking-and-choosing w/r/t his style of jurisprudence (Smith v. United States [91-8674], 508 U.S. 223 [1993] comes to mind).

[ExiledInIllinois]

Scalia is one of my favorite justices, but he pisses me off once in a while with his picking-and-choosing w/r/t his style of jurisprudence (Smith v. United States [91-8674], 508 U.S. 223 [1993] comes to mind).

 

 

Than he is not a good justice if he cherry picks... Says something about him, letting politics get in the way.

[LeviF]

Than he is not a good justice if he cherry picks... Says something about him, letting politics get in the way.

Like I said, it's really only once in a while.

 

And you're delusional if you don't think every justice does it.

[Rob's House]

Roberts did some mental gymnastics to come up with that. He cites some Decisions of questionable constitutionality, comes up with an absurd analogy about taxing home-owners for not having certain windows (which is both dissimilar in principle to the decision he's trying to draw a parallel to, & a questionable conclusion), then as the lynchpin of his argument merely opines that the constitution allows a federal tax on inactivity, but rather than supporting his statement he simply says that it is clear so as to avoid having to provide a reason on which to base the belief that the constitution allows the government to tax you for being alive. When they list 3 reasons it's usually because they don't have 1 that's worth a damn.

 

Perhaps John Roberts wanted to secure his legacy with the media, or maybe he has some other agenda that I don't know about. But no one with a triple digit IQ and at least a passing familiarity with the constitution could accept the pile of **** he just put on paper unless they really really wanted to.

[John Adams]

Roberts is in the eye of this storm and everyone ignores the 4 others. Just because he switched "sides?"

[DC Tom]

Roberts is in the eye of this storm and everyone ignores the 4 others. Just because he switched "sides?"

 

And because he wrote the majority opinion.

[Rob's House]

Roberts is in the eye of this storm and everyone ignores the 4 others. Just because he switched "sides?"

What's your point?

[John Adams]

What's your point?

 

It's interesting that everyone is vilifying Roberts because they see this as some sort of betrayal, but no one is attacking the justices who joined Roberts. It took 5 and yet there's only talk of impeaching one.

 

That he authored the opinion is no shock--he pulled rank to write it because it's the most important opinion in years.

[Rob's House]

It's interesting that everyone is vilifying Roberts because they see this as some sort of betrayal, but no one is attacking the justices who joined Roberts. It took 5 and yet there's only talk of impeaching one.

 

That he authored the opinion is no shock--he pulled rank to write it because it's the most important opinion in years.

I can't speak for everyone, but as for me I expected better of him. You already know the others are socialists who seek to reframe the constitution as a foundation for a socialist society, and they're fairly open about it. Roberts plays himself off as a guy who is interested in the rule of law and is smart enough to know better. With this decision & the foolishness he used to justify his decision it's hard to reconcile this with who he pretends to be. As far as SC decisions go his is hardly the greatest stretch of logic to find its way into the law, but when we needed him to protect the constitution & ultimately the structure of our society, he chose to go the other way for whatever reason & it's very disappointing.

[3rdnlng]

It's interesting that everyone is vilifying Roberts because they see this as some sort of betrayal, but no one is attacking the justices who joined Roberts. It took 5 and yet there's only talk of impeaching one.

 

That he authored the opinion is no shock--he pulled rank to write it because it's the most important opinion in years.

 

Only one person is proposing impeaching him.

[DC Tom]

That he authored the opinion is no shock--he pulled rank to write it because it's the most important opinion in years.

 

No, but it is why he gets the heat: his name's on it. No one said it was fair.

 

 

And the idea of impeaching him for this is so off-the-wall that it doesn't even deserve serious comment.

[dayman]

Roberts did some mental gymnastics to come up with that. He cites some Decisions of questionable constitutionality, comes up with an absurd analogy about taxing home-owners for not having certain windows (which is both dissimilar in principle to the decision he's trying to draw a parallel to, & a questionable conclusion), then as the lynchpin of his argument merely opines that the constitution allows a federal tax on inactivity, but rather than supporting his statement he simply says that it is clear so as to avoid having to provide a reason on which to base the belief that the constitution allows the government to tax you for being alive. When they list 3 reasons it's usually because they don't have 1 that's worth a damn.

 

Perhaps John Roberts wanted to secure his legacy with the media, or maybe he has some other agenda that I don't know about. But no one with a triple digit IQ and at least a passing familiarity with the constitution could accept the pile of **** he just put on paper unless they really really wanted to.

 

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?

[Rob's House]

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?

I do think the tax power argument is the best one and minimizes the constitutional usurpation that would have arisen had it been upheld under the commerce clause. In short, it's an excise tax. It's just the first time an excise tax has been placed on existence.

[3rdnlng]

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?

 

Was it a tax when they voted on the act?

[LeviF]

Was it a tax when they voted on the act?

According to the SCOTUS, yes.

[John Adams]

Clarence Thomas made the unarguable point that the commerce clause already gives Congress permission to legislate just about anything. This is just another step in that progression. From now on the argument will go: If there's money involved in a bill, the legislation is a tax, ergo constitutional.

[dayman]

Clarence Thomas made the unarguable point that the commerce clause already gives Congress permission to legislate just about anything. This is just another step in that progression. From now on the argument will go: If there's money involved in a bill, the legislation is a tax, ergo constitutional.

 

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.

[DC Tom]

Is the tax so punitive as to amount to a penalty?

 

That not only strikes me as a foolish attempt at blurring a distinction, it also strikes me as an end-run around Article 1, Section 9. Can we argue now that a bill of attainder isn't a bill of attainder, because it's not punitive enough to be a penalty, hence it's a tax?