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On The Mandate: The Taxing Power Escape Route for the SCOTUS

At balkinization, Jack Balkin points to his Atlantic article in which he discusses a 1950 taxing power case that seems clinching to me with regard to whether the individual mandate penalty is constitutional as a valid exercise of Congress' taxing power. I'm surprised it was not discussed more (and feel remiss in not having discussed it myself.) Balkin writes:

It also doesn't matter that the real purpose of the tax is to regulate behavior. Lots of taxes are designed to do just that -- think about taxes on polluters as an example -- and federal taxes on drugs are designed to keep people from buying or selling them. In 1950, the Court upheld a tax on marijuana, explaining that "a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary." "Nor does a tax statute necessarily fall," the Court added, "because it touches on activities which Congress might not otherwise regulate" under its other enumerated powers. So even if the mandate is beyond the commerce power, it can still be a constitutional exercise of the power to tax and spend for the general welfare.

The 1950 case Balkin is referring to is U.S. v. Sanchez:

In their motion to dismiss, which was granted without opinion, defendants attacked the constitutionality of this subsection on the ground that it levied a penalty, not a tax. The validity of this levy is the issue here. In enacting the Marihuana Tax Act, the Congress had two objectives: "First, the development of a plan of taxation which will raise revenue and at the same time render extremely difficult the acquisition of marihuana by persons who desire it for illicit uses and, second, the development of an adequate means of publicizing dealings in marihuana in order to tax and control the traffic effectively." S. Rep. No. 900, 75th Cong., 1st Sess. 3. To the same effect, see H. R. Rep. No. 792, 75th Cong., 1st Sess. 2.

[...] It is obvious that 2590, by imposing a severe burden on transfers to unregistered persons, implements the congressional purpose of restricting traffic in marihuana to accepted industrial and medicinal channels. Hence the attack here rests on the regulatory character and prohibitive burden of the section as well as the penal nature of the imposition. But despite the regulatory effect and the close resemblance to a penalty, it does not follow that the levy is invalid.

First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 300 U.S. 506, 513 -514 (1937). The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 276 U.S. 394 (1928). Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. v. Hamilton, 292 U.S. 40, 47 (1934):

From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment."

These principles are controlling here. The tax in question is a legitimate exercise of the taxing power despite its collateral regulatory purpose and effect.

(Emphasis supplied.) My understanding is that Sanchez continues to be good law (but see Leary v. US..) Why was this argument not emphasized by the government? It's a good question (I never understood why the Anti Injunction Act argument was abandoned.) Balkin offers these thoughts on that point:

The government's position was more complicated, and evolved over time. The Justice Department always included the tax power argument in its briefs, but rarely devoted much attention to it. At first the government argued that lawsuits challenging the mandate were barred by the Tax Anti-Injunction Act, which says that taxpayers cannot seek injunctions against taxes but must first pay the tax and then sue for a refund. That would mean that constitutional challenges could not begin in earnest until after 2014, when the mandate takes effect. But it also meant that if courts wanted to uphold the mandate on the merits, they would have to find a way to get around the Tax Anti-Injunction Act. This gave them reasons not to treat the mandate as a tax.

After two district courts struck down the mandate, the government's litigation strategy changed. It worried that states would begin to delay implementation and it sought a quick resolution of the constitutionality of the ACA. To that end, the government began to argue that the Tax Anti-Injunction Act did not apply because the mandate was not a "tax" for purposes of the act. This made it harder to push the tax power theory. As Justice Samuel Alito remarked in the oral argument, "General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax." Technically, the the two positions are consistent: The tax power, which includes taxes, duties, imposts, excises and other devices for raising revenue, could be and probably is far broader than the definition of a "tax" in a particular statute. Still, Alito's comment showed the government's rhetorical difficulty.

From my perspective, that dog won't hunt. WINNING the case was by far the most important thing. Sacrificing a compelling argument over concerns in delay in implementation simply can not be justified against the potential catastrophe of losing the case. Speaking as a practicing litigator, I could not disagree more strongly with the rationale Balkin offers for the government (I doubt Balkin endorse the strategy.) Who made the call? Probably not Donald Verrilli, who has taken much heat for his performance at oral argument. But Verrilli could end up being a fall guy. We'll see.

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    I'm neither a lawyer nor a legislator, (5.00 / 2) (#9)
    by Anne on Mon May 07, 2012 at 12:21:32 PM EST
    but doesn't it seem that when the legislation was being formulated, some wickedly smart legal minds should have been brought to bear to advise where the pitfalls were, how better or best to shape the legislation to make it, if not bulletproof, at least fortified with legal Kevlar?

    This seems like an integral part of due diligence, one that, when done right, puts the government at an advantage when the inevitable assaults on the legislation begin - but I get the feeling that the government was less prepared for this assault than it should have been.  I feel like it was working harder to shape the story we were all going to read than it was to formulate a solid legal argument.

    And that makes me wonder, sometimes, who's running this show - and if there has been a conscious decision to give short shrift to substance in favor of optics and politics: what will generate the best headline, and how can it be used to boost poll numbers?

    Feel free to tell me I'm not seeing this as I should, but this is the way it's hitting me, at least today.

    wickedly smart legal minds (1.00 / 4) (#13)
    by Abdul Abulbul Amir on Mon May 07, 2012 at 12:36:49 PM EST
    .

    Why bother, once you believe that anything you do is constitutional?  As speaker Pelosi so famously stated that we had to pass the bill to find out whats in it.  

    Parent

    Factually false (5.00 / 1) (#29)
    by gyrfalcon on Mon May 07, 2012 at 11:12:12 PM EST
    You really have to stop getting your news solely from Limbaugh and Hannity.

    Parent
    If you recall the discussions and (none / 0) (#12)
    by BTAL on Mon May 07, 2012 at 12:31:33 PM EST
    rationale that was offered up during the bill's debate, the Speaker and Dem party leaders went to great lengths to specify that the mandate penalty was not a tax.  In short to answer your question, there was a lot of mental effort applied to the language used.  They (the leadership) knew that tax language would add even more animosity towards the bill prior to passage.

    Parent
    This is true, BTAL, but the rhetoric (5.00 / 2) (#14)
    by Peter G on Mon May 07, 2012 at 12:51:03 PM EST
    about whether the individual mandate was a "tax" (in either the Anti-Injunction Act sense or in the constitutional sense) was purely political. Whether the law is constitutional (which it clearly is) depends on what the law actually does, not on what members of Congress say about it in debate.  There is controversy on the Supreme Court as to whether what the members say in committee and on the floor is even relevant (Scalia says it is not even that), but no one contends it is especially important, much less determinative.

    Parent
    Please correct me but (none / 0) (#17)
    by BTAL on Mon May 07, 2012 at 01:38:16 PM EST
    doesn't the SCOTUS attempt to determine the intent of Congress and the law based upon what specific language Congress chose to use?  Also, if SCOTUS cannot use the official floor statements of Congress in its task of determining intent, how has it used "non-official" writings and letters of the founders in the past without being criticized?

    Parent
    Yes, the courts seek to determine (none / 0) (#18)
    by Peter G on Mon May 07, 2012 at 01:55:24 PM EST
    the meaning of legislation based on "what specific language Congress chose to use" in the words of the legislation itself.  Most members of the Supreme Court, and nearly all lower court judges, also believe that one tool for resolving ambiguities in the legislative language (if there is any) can be the "legislative history" of that bill.  However, there is no such thing as "the official floor statements of Congress," if by "official" you mean "authoritative."  There are floor statements of individual legislators, one or more of whom may even be authors and/or sponsors of the legislation being debated, but these are not "official" in any legal sense. Nor are the "committee reports" that analyze bills coming to the floor after committee hearings and review.  As for the Founders, you are referring to writings use to interpret the Constitution, not to interpret legislation.  That's a whole different kettle of fish.

    Parent
    But not always (none / 0) (#28)
    by gyrfalcon on Mon May 07, 2012 at 11:11:12 PM EST
    We recently had a federal judge rule against VT in its attempt to get our one ancient and unsafe nuclear plant to shut down when it was supposed to because she decided to read up not just on what was said on the floor and in commitee in the legislature but news reports and interviews of the legislators' point of view and decided the legislators' motivation, not the language of the law, was impermissible.

    It's left everybody here just open-mouthed with astonishment.

    Parent

    You highlight this (5.00 / 1) (#11)
    by BTAL on Mon May 07, 2012 at 12:27:27 PM EST
    It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed.
     

    When the mandate is: a) imposing a fine specifically by the precise language Congress intentionally chose to use.  b) attempts to deal with inactivity vs activity - which the highlighted paragraph and cited case addresses.

    When the mandate is: (5.00 / 1) (#15)
    by Dan the Man on Mon May 07, 2012 at 01:00:00 PM EST
    a) imposing a fine specifically by the precise language Congress intentionally chose to use.

    Since Congress did not use the word "fine" while you act like Congress did, you seem to have not read the precise language Congress intentionally chose to use.

    attempts to deal with inactivity vs activity - which the highlighted paragraph and cited case
    addresses.

    Congress taxes "inactivity" all the time.  For example, if you don't get married (i.e. you are not engaging in the "activity" of marrying), you might have to pay more income taxes than someone who has engaged in the activity of marrying.  Or are you saying when Congress imposes a higher income tax on unmarried people than on married people, that's unconstitutional also?

    Parent

    Penalty and fine can be (none / 0) (#16)
    by BTAL on Mon May 07, 2012 at 01:35:14 PM EST
    synonymous.  The point that it was specifically positioned as not a tax - even categorically by Obama when George Stephanopoulos whipped out the dictionary definition on him.

    Please link me up with the tax code language that specifically states that Congress is intentionally taxing the un-married as a penalty or its intent to force people into marriage.

    Parent

    Dan responded, completely correctly, (none / 0) (#19)
    by Peter G on Mon May 07, 2012 at 01:59:26 PM EST
    to exactly what you said, BTAL. You are not responding to what he actually said, so your "challenge" to him (so to speak) is invalid.

    Parent
    So you say penalty=fine (none / 0) (#20)
    by Dan the Man on Mon May 07, 2012 at 02:20:40 PM EST
    Congress did not say that.  Just some random commenter called BTAL on Talkleft is saying that.  Who cares?

    The point that it was specifically positioned as not a tax

    Question: suppose Congress were to say it were to impose a TAKS on something or other.  And later on in the law, the law says TAKS is the same as "tax".  Would you say such a "taks" would be unconstitutional because the word "tax" was not magically written in the exact way you wanted it to?

    even categorically by Obama when George Stephanopoulos whipped out

    The word "tax" as used in political speak is different than what is a "tax" as used in the constitution.  Even Scalia agrees with this.  Here's a quote from Scalia:  "But fees, you know, license fees, fees for a hunting license, everybody knows those are taxes."

    So if Obama were to hike the parking fee for Yellowstone Park by 1 penny, even Scalia would agree this would be a constitutional use of the "tax" power even though the word "tax" was not used.

    But if Obama were to deny that the 1 penny Yellowstone parking fee hike was a tax hike, and BTAL on Talkleft were to say "even Obama categorically denied it was a tax Nah Nah Nah", most of us would understand what Obama and Scalia were talking about and wonder why BTAL was so weird he couldn't understand something so simple.

    Please link me up with the tax code language that specifically states that Congress is intentionally taxing the un-married as a penalty or its intent to force people into marriage.

    No one's being "forced" to buy health insurance.  They just might be required to pay extra taxes based on their income if they don't - just like no one is forced to get married, they just might be required to pay extra taxes based on their income if they don't.  Du-uh.

    Parent

    Seems To Me... (5.00 / 1) (#21)
    by ScottW714 on Mon May 07, 2012 at 03:09:11 PM EST
    ...that using the IRS to enforce the 'whatever you want to call it' is pretty telling as to how they viewed it.

    And as mentioned, marriage is one, but the big one and the one that really irks me, is being essentially penalized for not having kids.  Not having babies is penalized by the Fed, not that I think it's fair, but it's established law.  And BTAL that is not forcing me to have babies, it means the Fed thinks some behaviors in society are worth rewarding, usually one that are fairly expensive.

    Don't hear the right all up in arms over that one.  More selective non-sense.

    Parent

    Yup - they don't seem to mind (none / 0) (#23)
    by ruffian on Mon May 07, 2012 at 04:15:36 PM EST
    being rewarded for their religious beliefs of non-impeded procreation. That is not the state getting involved in their religion.

    Parent
    Actually (none / 0) (#24)
    by jbindc on Mon May 07, 2012 at 04:36:28 PM EST
    The deduction you get for having kids isn't nearly as much as you pay out for their "upkeep and maintenance."

    The one that really gets to me is that because I rent, I don't get to take a deduction, even though I am essentially paying my landlord's mortgage.

    Parent

    the marriage one bothers me more (none / 0) (#25)
    by CST on Mon May 07, 2012 at 04:39:49 PM EST
    if only because if you are married with no kids, you are probably saving a bunch of money on things like rent, food, etc... compared to us non-married folks.  So you're essentially getting money for something that is inherently less expensive than single life anyway.

    I agree the kids deduction is different because that one you probably need.

    Parent

    Not following you. (none / 0) (#38)
    by Gandydancer on Tue May 08, 2012 at 07:48:09 AM EST
    If you marry your bedmate, how does that save you a bunch of money on rent and food?

    Parent
    That one confused me, too! (none / 0) (#39)
    by Anne on Tue May 08, 2012 at 08:54:37 AM EST
    All I can think is that somehow married people are more likely to buy a home, and therefore get the mortgage interest deduction, which means smaller net outlay for housing.

    The food thing?  It's been my experience (many years married, two kids, now grown, but one and her fiancé living with us while they save for a house) that one person eats a lot less expensively than a family, and I'm not aware of any tax breaks for families that defray the cost of food.  

    Having kids is way more expensive than any exemption one gets to take; yes, there's a child care credit, but it's not like the government is paying most of us to have kids.  

    Even having a house is way more expensive - the repairs and maintenance don't fall on a landlord, they fall on the homeowner.  And there's property taxes - while they reduce taxable income, they still have to be paid.

    Parent

    cooking for 2 (none / 0) (#41)
    by CST on Tue May 08, 2012 at 09:40:11 AM EST
    from my experience the food price per person definitely goes down.  Obviously if you are cooking for kids with no income that doesn't count (hence I said married, no kids).  And generally speaking when you combine all your finances and possesions with someone else's you need less of your own for the day to day stuff because the two of you still only need one lightbulb, etc...  I guess what you're saying is it's not the marriage itself that's saving people money it's co-habitation, but my point is, it's certainly not more expensive to be married with no kids, and you also get a tax benefit - for what?

    Again, I realize this changes with kids, but to me that's a very seperate thing from being married.

    Parent

    The origin of the "advantage" (none / 0) (#57)
    by Peter G on Tue May 08, 2012 at 08:10:31 PM EST
    for married couples filing jointly (that is, after DOMA, federally-recognized married couples) lies in efforts to moderate the unintended, somewhat paradoxical "marriage penalty" -- an artifact of the progressive income tax rate structure.  It has nothing to do with a presumed lower cost of living.

    Parent
    Until it was recently cut by the GOP state leg. (none / 0) (#50)
    by DFLer on Tue May 08, 2012 at 03:16:00 PM EST
    renters in Minnesota shared in their landlord's mortgage rebate via a program called 'renter's rebate. It was nice, and helpful, but gone now.

    Parent
    It was not just... (5.00 / 2) (#27)
    by bmaz on Mon May 07, 2012 at 05:37:01 PM EST
    It was not just in relation to the AIJA that the government directly took a position contrary to arguing the mandate was a tax, they intentionally did so in the crafting of the final law that was passed as the ACA.  This potential flaw and infirmity was known. People within the Judiciary Committees discussed it. This direction was taken for, at least by my understanding, purely political and tactical purposes to satisfy the interests necessary to obtain passage.  And, then, there is the not so shaded attempt by many to conveniently cast aside the arguments made by the government in relation to the AIJA as if it "was just a joke" or some other form of curious nullity. That is just not the way it works, especially in a hostile court.

    At some point, legally, you lie in the bed you have made; Armando is exactly correct in that regard.  This thing is not a tax because the government has consistently maintained it is not a tax. That is their bed.

    Obamacare mandate (1.25 / 4) (#1)
    by gadfly on Mon May 07, 2012 at 10:45:33 AM EST
    Sometimes we have to look at, not what has been, but what will be.  Already we have a controversial rule created by Obama's administrators that will force religious affiliated organizations to either abandon their freedom of conscience or pay a fine of up to $2,000 per employee.

    The rule issued by the Department of Health and Human Services, as part of the department's implementation of the sweeping Affordable Care Act of 2010, mandates that religious-affiliated charities, schools and hospitals provide coverage for controversial contraceptive products.

    These people are un-elected and now they will take our liberties from us and charge us for the privilege. I think it improbable that the Constitution was written to include such tyranny.

    Obamacare legislation was poorly written to grant broad powers to the HHE Secretary and that power also must be taken away permanently. Most importantly, however, is the simple fact that the American economy cannot now or ever bear the burden of this never-ending socialistic rampage. Europe is dying as we speak and the world's greatest nation will soon follow under the continued weight brought by unbridled government extravagance.

    This comment is filled with falsehoods (5.00 / 2) (#2)
    by Big Tent Democrat on Mon May 07, 2012 at 11:04:47 AM EST
    to numerous to rebut.

    I refer readers to my post on the controversy over the separation of church and state at daily kos for a full treatment on this point..

    Parent

    BTD - can you provide a direct link (none / 0) (#5)
    by Peter G on Mon May 07, 2012 at 11:56:52 AM EST
    to your DK comment on the church-state issue?

    Parent
    Here's one (none / 0) (#22)
    by Big Tent Democrat on Mon May 07, 2012 at 03:36:29 PM EST
    of many - link.

    Parent
    I read your D-Kos essay, BTD, (none / 0) (#26)
    by Peter G on Mon May 07, 2012 at 05:34:31 PM EST
    and I think it nails the issue in terms of democratic (small "D") political philosophy.  As a legal matter, let me try to explain briefly why "Gadfly" (and the bishops) are wrong. From the 1870s (in cases concerning the federal government's legal attack on Mormon polygamy) to the present, the Supreme Court has held that the government has no  special obligation to justify imposing a burden on religious exercise through a "law of general applicability" -- a law that is not targeted a religion or at any particular religion. There was one exception, a brief hiatus during the Warren Court to the beginning of the Burger Court (basically, 1963-1972), when the doctrine was different. During that decade, the Court held in a few cases that the government must show that a law imposing a burden on the free exercise of anyone's religion -- by requiring them to do something (which everyone similarly situated has to do) that their religion prohibits, or to refrain from doing something (that everyone otherwise similarly situated is required by law to refrain from doing) that their religion requires -- can only be justified by a "compelling state interest" and even then, only if the law uses the "least restrictive means" to accomplish its valid objective. (Even under this test, the government was permitted to deny conscientious objector status to the draft, as well as conscientious objector discharges from the military, to sincere religious objectors whose beliefs did not fit a Congressionally-crafted definition of conscientious objection.  And pacifist objections to paying taxes that go substantially to fund the military were also consistently rejected. Etc., etc.)  In 1990, the Supreme Court expressly overruled and rejected that test for all purposes, and went back to the original 1870s test - religious beliefs are protected from infringement via laws of general applicability, but religiously motivated (or compelled) action (or inaction), by its nature, cannot be.  Like it or not, that is American Constitutional Law, and any claim by the bishops that such provisions as the birth-control clause of the ACHA infringe their First Amendment rights is just rhetorical posturing, not a position that could prevail in any court.  
        That said, there is a federal statute -- passed in 1993 (the "Religious Freedom Restoration Act") in response to the 1990 Supreme Court decision I mentioned above -- that grants an exemption on religious grounds pursuant to the Warren Court test for any and every religious objection to each and every federal statute, program or regulation.  The Supreme Court has upheld the validity of that statute, under Congress's power to regulate the limits of its own programs.  So to the extent that any provision of the ACHA genuinely infringes on the sincere religious actions of any Catholic person or institution, the exemption or accommodation that s/he or it needs is already written into the law.
         For both of these reasons, the objection that was or is being advanced is utterly bogus, legally speaking.

    Parent
    Not quite following you. (none / 0) (#36)
    by Gandydancer on Tue May 08, 2012 at 06:52:18 AM EST
    Is or is it not bogus that the proposed application of "the birth-control clause of the ACHA" (is it in the text, or just HHS fiat?) to religious institutions, broadly defined, is a violation of RFRA?

    Parent
    No, nothing about the ACHA is a "violation (none / 0) (#53)
    by Peter G on Tue May 08, 2012 at 04:03:23 PM EST
    of RFRA."  My point is that to the extent that compliance with the ACHA would require a person or institution to violate his/her/its religious scruples, that person or institution is entitled to invoke the protections of RFRA and thereby possibly gain an exemption.  In other words, the argument that ACHA is invalid, in whole or in part, for violation of the First Amendment's Free Exercise Clause is bogus under settled Supreme Court doctrine.  And the argument that ACHA will cause anyone's religious rights to be violated -- even as such rights were ever protected in America under the most protective regime that ever existed, that is, as if we were back in the 1963-1972 window -- is also bogus, because RFRA is there to protect them, just as it is with respect to any federal legal obligation or prohibition.  So the Bishops have no complaint that is entitled to any consideration, imho.

    Parent
    You ignored my distinction between... (none / 0) (#61)
    by Gandydancer on Tue May 08, 2012 at 08:57:10 PM EST
    ...the HHS mandate and the ACHA proper.

    Your position, as I understand it, is that RFRA does not limit what HHS may mandate, but merely allows persons to claim exemptions. But the text (http://www.law.cornell.edu/uscode/text/42/2000bb-1) is rather different.

    (a) In general
    Government shall not substantially burden a person's exercise of religion [unless it]
    (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling governmental interest.

    Obtaining judicial relief in each case is itself a substantial burden, and it appears to me unlawful for HHS to promulgate regulations that do not a priori take account of RFRA concerns.

    Parent

    I don't think that's how RFRA (none / 0) (#63)
    by Peter G on Tue May 08, 2012 at 09:31:50 PM EST
    is applied in practice.  I believe the objector is expected to make the claim for an accommodation or exemption -- or else raise RFRA in defense of any official action against him/her/it for non-compliance.  I ignored your distinction between the statute and the implementing regulation because it makes no difference to the point I was discussing. RFRA would apply equally to either.

    Parent
    If the law that you point to... (none / 0) (#69)
    by Gandydancer on Wed May 09, 2012 at 04:21:23 PM EST
    ...as obviating any complaint about the HHS mandate is being applied, in practice, in a way that excessively burdens those it exempts from excessive burden, then the complaints are not bogus. QED

    Parent
    I do not believe that any court (none / 0) (#71)
    by Peter G on Wed May 09, 2012 at 09:49:46 PM EST
    will agree with you, in finding unreasonable the slight burden of having to object that a generally applicable legal obligation is inconsistent with your own particular religious scruples, before the government has an duty to accommodate those scruples or else exempt you.

    Parent
    The question is whether HHS can... (none / 0) (#73)
    by Gandydancer on Thu May 10, 2012 at 06:50:03 AM EST
    ...ignore RFRA in formulating its regulations. Maybe a court will ignore the plain text of RFRA and decide HHS can. Or not.

    Parent
    YAWN... (none / 0) (#3)
    by ScottW714 on Mon May 07, 2012 at 11:37:41 AM EST
    ..Just another right wing hack more interested in tossing out catch phrases than making any sort of argument.

    Parent
    I'm still left wondering (5.00 / 4) (#6)
    by CST on Mon May 07, 2012 at 11:59:51 AM EST
    when birth control became a "controversial contraceptive product" again.  I could have sworn when I checked the date today it said 2012 not 1950.

    Parent
    Seems to Me... (none / 0) (#4)
    by ScottW714 on Mon May 07, 2012 at 11:44:47 AM EST
    ...as a person not in any sort of legal field that this SCUTUS decision can be better predicted by party lines then precedence, law, of even rational thought...

    I don't see this court siding with Obama on this issue regardless of the arguments made.  To me the Citizens decision proved this court is incapable of disregarding party affiliation or using common sense.

    I would put it this way ... (5.00 / 2) (#7)
    by Peter G on Mon May 07, 2012 at 12:03:47 PM EST
    The question is whether the AHCA cases will be decided on legal or political lines.  Overwhelmingly, the Supreme Court's cases are decided by legal analysis, not politics (whether you agree with the majority's legal reasoning or not).  A tiny handful of cases -- often less than one per year -- are decided on legally-indefensible, almost mock-legal grounds, that can be explained only politically.  Bush v Gore is a paradigm example.  Citizens United was another.  I fear, but am not assured, that we are in for another such instance here.  I dare to hope, however, that the clearly superior legal reasoning that says the law is valid will win out in the end.

    Parent
    Thanks for the pontification (5.00 / 1) (#30)
    by bmaz on Mon May 07, 2012 at 11:22:47 PM EST
    But, no, the :constitutionality" of, if nothing else, the mandate is nowhere near clear cut. I do not care how much bleating its supporters impose, it simply is truly novel and is an open question.  It may well end up passing muster, it may not; but I am sick of hearing people say how stinking "clear" it is. That is simply an unmitigated load of bull.  

    First off, it is was all that "clear", the Supreme Court would not have treated it with the almost unheard of allotment of oral argument time and dissection.  Secondly, even the vaunted "conservative judges who upheld the ACA", such as Silberman and Sutton, both clearly noted that the mandate, as constructed, was "novel" and that existing law may not square with it at all.  Just because they felt constrained, by their best interpretations, does not, by any stretch of hyperbole, take their resultant decisions into the unquestionably "clear" realm.  To say it does is to, like an ostrich, belie the consideration given by the Supremes to date.

    Maybe the Supreme Court will, indeed, ultimately uphold the kit and kaboodle.  But to say it is all so blindingly clear is to ignore the obvious in front of you and not particularly compelling argument.

    Parent

    Thanksfor the bleating (1.00 / 1) (#31)
    by Big Tent Democrat on Mon May 07, 2012 at 11:56:30 PM EST
    You're full of it of course.

    Parent
    That was a juvenile response (none / 0) (#32)
    by Romberry on Tue May 08, 2012 at 05:40:07 AM EST
    Rated as deserved.

    Parent
    with me.

    From the comment you rated a 5 -

    "I do not care how much bleating its supporters impose"

    My comment made a point abut the rudeness of bmaz's response to Peter G.

    I think your own juvenile nature was revealed  in this exchange.

    Parent

    Yes, of course I am (none / 0) (#33)
    by bmaz on Tue May 08, 2012 at 05:50:25 AM EST
    Because it is simply sacrilegious for any liberal to not fall in line with the precious groupthink that the mandate is "obviously constitutional". Well, it is not; it may ultimately be determined so, but as of now, it is indeed a legal controversy yet to be determined.  From my perspective, the relentless attempts to paint it as a fait accompli that, should it possibly be decided otherwise, would be the most heinous politicization of SCOTUS in history is, itself, ridiculous politicization.  For my part, I will accept as valid whatever decision the Supreme Court makes, either way.

    I am sure you vehemently disagree, I would expect nothing less.

    Parent

    I was making a point (5.00 / 1) (#35)
    by Big Tent Democrat on Tue May 08, 2012 at 06:19:29 AM EST
    about your rudeness to Peter G., who is as nice a commenter as there is at Talk Left.

    I love you bmaz, I really do, but Talk Left is different than what you and I normally do.

    Please adjust accordingly.

    Parent

    Honestly, (5.00 / 2) (#42)
    by bmaz on Tue May 08, 2012 at 10:13:02 AM EST
    I think you are right, I was a bit sharp elbowed and PeterG has my apology.  I have been having some knock down drag outs on this in other forums with long time thick skinned lawyers and I wandered in here and fired off a response maybe appropriate for there but not here.

    I am also a bit defensive as I am, along with maybe Turley, about the only one on the left that thinks there is real merit to both sides of the argument, and have been saying so since before the argument.  That is no reason to be harsh though.  Quite frankly, I probably owe you an apology as well. And a hat tip because as noted above, you at least acknowledge the problem with how the govt has tried to play it too cute by a half on how they have framed the tax issue.  Even that is pretty rare on our side of the aisle.

    Parent

    This is one of the reasons we love you (none / 0) (#43)
    by Big Tent Democrat on Tue May 08, 2012 at 11:11:27 AM EST
    That and your penchant for telling it like it is.

    You may remember the silly e-mail group we were once both in where truth telling was not so welcome.

    It's welcome from me.

    Parent

    Ugh... (5.00 / 1) (#48)
    by bmaz on Tue May 08, 2012 at 12:42:58 PM EST
    Yeah, I had forgotten about that. Heh.

    Parent
    blush (none / 0) (#58)
    by Peter G on Tue May 08, 2012 at 08:11:41 PM EST
    I Hear Ya (none / 0) (#10)
    by ScottW714 on Mon May 07, 2012 at 12:22:38 PM EST
    But the examples used were huge, and important, much like this one.  So they follow the law all the time except when it really counts...

    Just seems like even thinking this is going to be decided by anything other than politics is crazy IMO.

    Parent

    Remember (none / 0) (#70)
    by NYShooter on Wed May 09, 2012 at 09:42:57 PM EST
    that during G.W. Bush's  Administration, when confronted with the quandary that many of their proposals were antithetical to facts, logic, reason, and historical evidence, they responded with, "we make our own reality."

    So, we have the right wing, tea party types (I refuse to call them "Conservatives") justifying their opposition to evolution with, "it's only a theory."

    So, the Supreme Court also has its one-size-fits-all shield, " Sui Generis."

    Parent

    Perhaps, after reading Balkinization, (none / 0) (#8)
    by oculus on Mon May 07, 2012 at 12:20:27 PM EST
    the Solicitor General will request re-argument?!!!!

    Here is one answer to my earlier inquiry:

    Philip Elman argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and Melva M. Graney.
     [Sanchez, italics added.]

    Balkin keeps blogging about it (5.00 / 1) (#54)
    by Peter G on Tue May 08, 2012 at 05:41:38 PM EST
    as he gets new ideas, or comes up with new arguments, because (imho) he believes that the Justices' law clerks read the most highly respected legal blogs (including his own).

    Parent
    LOL! (none / 0) (#55)
    by Zorba on Tue May 08, 2012 at 05:48:23 PM EST
    Thanks, Peter.  I needed the laugh.   ;-)

    Parent
    I actually didn't mean my comment (5.00 / 1) (#59)
    by Peter G on Tue May 08, 2012 at 08:13:00 PM EST
    to be funny.  Glad you enjoyed it though.

    Parent
    Heh, yes... (none / 0) (#60)
    by bmaz on Tue May 08, 2012 at 08:22:56 PM EST
    ...the latest one at Jack's joint is by a guest blogger, Brian Galle, who somewhat incredulously argues that the clear way out for the Supremes, who he must think are just dying to uphold the mandate by some method, even if contrived, is that they should treat it all as NOT a tax for purposes of the AIJA portion of the decision and then turn on their heels and treat it AS A TAX under the mandate portion.  See, it's all good that way!  

    Jeebus.

    Parent

    Balkin quotes Sanchex, but seems to... (none / 0) (#37)
    by Gandydancer on Tue May 08, 2012 at 07:21:52 AM EST
    ...have the case exactly backwards. Sanchez held that a tax is still a tax, even if the result looks like a penalty. He wants to conclude from this that a penalty is a tax because it looks like a tax. :::facepalm:::

    He then proceeds to quote Sanchez' quote of Magnano on the lack of limits on the utility of the taxing power, but doesn't seem to have looked at the holding, "The statute here under review is in form plainly a taxing act, with nothing in its terms to suggest that it was intended to be anything else. It must be construed, and the intent and meaning of the legislature ascertained, from the language of the act, and the words used therein are to be given their ordinary meaning unless the context shows that they are differently used." The ordinary meaning of the language of the insurance mandate declares that it is not a tax, and under the holding Balkin is relying on it should not be construed as a tax.

    The whole idea that the SCOTUS needs an "out" is also bizarre. Unless you start with the assumption that the five are in the wrong legally the obligation to avoid a 5-4 does not obviously fall on them.

    Congress said in law the penalty is a tax (none / 0) (#40)
    by Dan the Man on Tue May 08, 2012 at 09:09:37 AM EST
    The ordinary meaning of the language of the insurance mandate declares that it is not a tax

    Actually, Congress specifically declared in law that the penalty was a tax.  The law says of the penalty that it must be "assessed and collected in the same manner as taxes" under section 6671 of the Tax Code and the penalty is also a tax under section 6201 of the Tax Code. So the penalty is a tax because Congress said it was so.

    Parent

    Actually (none / 0) (#44)
    by jbindc on Tue May 08, 2012 at 12:05:13 PM EST
    Quoting your words:

    assessed and collected in the same manner as taxes
    would indicate that it is NOT a tax, by Congress' own words, no?

    Parent
    And at oral arguments (none / 0) (#45)
    by jbindc on Tue May 08, 2012 at 12:16:37 PM EST
    Even some of the liberal justices were questioning that it is a tax.  Now, they could have been asking -  just to get the question answered so they can then uphold the law, but it wasn't just the conservatives who were skeptical.

    Justice Breyer says (p. 16):

    "Now, here, Congress has nowhere used the word "tax." What it says is penalty. Moreover, this is not in the Internal Revenue Code "but for purposes of collection."

    Justice Ginsburg says (p. 19):

    "The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law, rather than to raise revenue. And this is not a revenue-raising measure because, if it's successful, they -- nobody will pay the penalty, and there will be no revenue to raise."


    Parent
    Uh, why? (none / 0) (#49)
    by Dan the Man on Tue May 08, 2012 at 01:37:35 PM EST
    "assessed and collected in the same manner as taxes" would indicate that it is NOT a tax, by Congress' own words, no?

    Uh, why?  Are you saying taxes are not assessed and collected in the same manner as taxes?  Surely you can't believe in anything that silly right?

    Also, you missed the part where the penalty is also a tax under section 6201 of the Tax Code.

    Parent

    Seems to me (none / 0) (#51)
    by jbindc on Tue May 08, 2012 at 03:24:34 PM EST
    If they said it was a tax, then they would have said "it's a tax".  The way it reads is this is a penalty that is to be collected as the same manner as taxes.

    Surely you can't be that silly to see that it isn't that obvious - otherwise this would have been settled when the first lawsuit was thrown out.  Oh wait, this went to the Supreme Court, and my guess is, even they won't be able to agree.

    Parent

    Tax Code (none / 0) (#52)
    by Dan the Man on Tue May 08, 2012 at 03:50:21 PM EST
    If they said it was a tax, then they would have said "it's a tax".

    Also, you missed the part where the penalty is also a tax under section 6201 of the Tax Code.

    The way it reads is this is a penalty that is to be collected as the same manner as taxes.

    Sure, lot of things are collected as the same manner as taxes.  Like, taxes.

    Surely you can't be that silly to see that it isn't that obvious - otherwise this would have been settled when the first lawsuit was thrown out.

    Where did I ever say it was obvious?

    Oh wait, this went to the Supreme Court, and my guess is, even they won't be able to agree.

    If you get 2 lawyers in a room, you will end up with at least 3 arguments about everything.

    Parent

    You are transparently being willfully obtuse. (none / 0) (#56)
    by Gandydancer on Tue May 08, 2012 at 08:09:16 PM EST
    If Congress passes a tax it is completely superfluous to declare that it will be collected as a tax. If it is stated that something is to be collected as a tax the clear implication is that it is not a tax.

    And 6201 (http://www.law.cornell.edu/uscode/text/26/6201) doesn't appear to say what you want us to think it says.

    Parent

    Tax Code (none / 0) (#62)
    by Dan the Man on Tue May 08, 2012 at 09:14:27 PM EST
    If Congress passes a tax it is completely superfluous to declare that it will be collected as a tax.

    Congress labeled something a "penalty" but wanted to be doubly sure it would be understand by everyone it's equivalent to a tax.  That's why Congress declared specifically it's collected/assessed as a tax.

    And 6201 doesn't appear to say what you want us to think it says.

    6201 says: "all taxes (including interest, additional amounts, additions to the tax, and assessable penalties)".

    So taxes include assessable penalties.  Since the ACA penalty is an assessable penalty, it's a "tax" as defined in 6201.

    Parent

    As I said, 6201 doesn't appear to... (none / 0) (#64)
    by Gandydancer on Wed May 09, 2012 at 06:11:23 AM EST
    ...mean what you think it means. You do realize "assessable penalty" is a term of art? It is not to be confused with "additions to the tax", which are not taxes, but which the revenue code may refer to as "taxes", I kid you not. E.g.,
    § 301.6659-1   Applicable rules.
    (a) Additions treated as tax. Except as otherwise provided in the Code, any reference in the Code to "tax" shall be deemed also to be a reference to any addition to the tax, additional amount, or penalty imposed by chapter 68 of the Code with respect to such tax. Such additions to the tax, additional amounts, and penalties shall become payable upon notice and demand therefor and shall be assessed, collected, and paid in the same manner as taxes.

    Also, re:

    Congress labeled something a "penalty" but wanted to be doubly sure it would be understand by everyone it's equivalent to a tax.  That's why Congress declared specifically it's collected/assessed as a tax.

    This is nonsense. Congress was quite determined to prevent as many people as possible from concluding that the mandate was a tax. They declared it a penalty which just happened to be collected by the IRS. That's what the law says and that's the way the courts should interpret it, iaw the very holdings that Jack Balkin cites.

    Parent

    You are transparently being willfully obtuse. (none / 0) (#65)
    by Dan the Man on Wed May 09, 2012 at 09:14:50 AM EST
    You do realize "assessable penalty" is a term of art?

    So you're saying taxes include assessable penalties, but assessable penalties aren't included as taxes right?

    It is not to be confused with "additions to the tax",

    Who was doing the confusing?

    which are not taxes, but which the revenue code may refer to as "taxes",

    Sure, that's because 6201 says taxes include additions to the tax and assessable penalties.  I think you're getting it.

    I kid you not.

    Thanks for the clarification.


    Congress was quite determined to prevent as many people as possible from concluding that the mandate was a tax.

    I try to discern what Congress intended by reading the actually text of the legislation and not by mind reading.  Since the law specifically states the penalty is to be "assessed and collected in the same manner as taxes", I have no problem with saying Congress wanted it to be understood it's equivalent to a tax.  But if you're going to act like you have a God's eye view of what Congress really intended, I'm not going to question your judgment.

    Parent

    Actually.... (none / 0) (#66)
    by bmaz on Wed May 09, 2012 at 09:34:58 AM EST
    What Gandydancer said is almost exactly what was conveyed by people at both the HEW and SJC committees at the time the bill was in final drafting.  They were actually desperate to have it not be a "tax", and the reason it was affiliated with the IRS at all was because there was no alternative bureaucracy, nor funding available to create one, with which to collect and enforce the penalty. There is a legislative history out there, and it does not support the proposition that the mandate is a tax.

    Parent
    Forgive me for saying so (none / 0) (#67)
    by Peter G on Wed May 09, 2012 at 11:51:22 AM EST
    but I think this entire (and apparently endless) conversation about the technical definitions of "additions to tax" etc. in the Internal Revenue Code and its implementing Treasury Regulations is a total waste of bandwith, and has nothing to do with anything to do with the validity of the health insurance reform law or with the likely decision of the Supreme Court, however it comes out.

    Parent
    I think that was *my* point... (none / 0) (#68)
    by Gandydancer on Wed May 09, 2012 at 04:00:05 PM EST
    ...about Balkin's theory. If you understand at this point, and did not before, that BigTentDem was posting approvingly about nonsense, then I've accomplished something. If your point is that logic makes your head hurt then I am prepared to concede that I am wasting it on you.

    Parent
    My comment was addressed to you, (none / 0) (#72)
    by Peter G on Wed May 09, 2012 at 09:54:34 PM EST
    to Dan the Man, and to jbindc, equally. No, you did not persuade me of anything.  Also, I live by logic, so no, it does not "make my head hurt."  But by all means, do stop wasting your wisdom on me; I wouldn't want to burden you with all that unrewarding effort.

    Parent
    Your fact-free comment was... (none / 0) (#74)
    by Gandydancer on Thu May 10, 2012 at 06:58:02 AM EST
    ...certainly a waste. If that's all you can contribute, please don't. I wish this software had an "Ignore" button, but it doesn't. So if you have nothing relevant to say, stifle yourself.

    Parent
    Good law, but would SCOTUS care? (none / 0) (#46)
    by Addison on Tue May 08, 2012 at 12:22:12 PM EST
    Even if the government had pushed forward with the clear legal argument (which would've muddled the political argument), do you think that the court would've been swayed by Sanchez? I don't. Look at the questions the Justices asked. They weren't about this topic, they were about limiting principles and broccoli. Offering up Sanchez as an answer to those questions seems like it would have proved insufficient, given where the justices' heads were at.

    I can see why they de-emphasized the tax... (none / 0) (#47)
    by magster on Tue May 08, 2012 at 12:41:14 PM EST
    argument from a political perspective. Imagine what we will hear from June to November if the Supreme Court upholds the law because it is a "TAX" (cue evil gopher turning around you tube video).

    What a gift to Republicans in a campaign year to label Obama's crowning achievement as a new tax. Which is why I think that this is a very likely outcome.

    Big Tent Democrat and Jack Balkin are remiss (none / 0) (#75)
    by citizenjeff on Fri May 11, 2012 at 03:20:24 PM EST
    Although it's true a tax could be a tax without calling it a tax, at least one lower court ruled two significant factors reveal the intent of Congress here:

    1. The particular way "tax" is used in some portions of the Affordable Care Act, versus how "penalty" is used in other portions.

    2. Where "tax" was used in earlier versions of the bill, it was replaced by "penalty" later.

    Even if the court's logic is faulty, the ruling is certainly pertinent. As such, I wonder why Jack Balkin and Big Tent Democrat have failed to address it.

    No court has ever ruled that even when Congress has indicated it doesn't want a penalty to be treated as a tax, it must nonetheless be treated as a tax just because Congress is authorized to impose such an economic mandate as a tax.

    Well... (none / 0) (#76)
    by bmaz on Sat May 12, 2012 at 07:41:22 PM EST
    ..BTD's ultimate views may be that it ultimately could have been painted as a tax, and he clearly articulates that he is of the opinion it might should have been so argued, BUT he deserves healthy credit for admitting that what Balkin, Rausch and others are painting is not credible in light of how the government has phrased the point and argued it to SCOTUS. So, I am not sure it is fair to put BTD in the same boat as Balkin here.

    Parent
    BTD is in the same boat with Balkin because... (none / 0) (#77)
    by citizenjeff on Sun May 13, 2012 at 12:13:27 PM EST
    With respect to the purported constitutionality of the mandate, BTD calls Balkin's argument "clinching." BTD disagrees only "with the rationale Balkin offers for the government[`s]...strategy." The latter has nothing to do with the former, and it's the former position I'm addressing.

    Parent