Is the SCOTUS "ACA = Tax" Ruling a Bad Precedent?

[Virgil Showlion]

(This question originally appeared as part of a lengthier debate here.)

DJ: Why don't you clarify your position and explain to us why the SCOTUS ruling on the ACA wouldn't constitute a strong precedent in favour of, for example, mandating the purchase of government-approved "green devices" or "carbon offsetting" technology? (In particular, assume the federal government imposed stiff fines on any citizen not exporting at least 8 MWh of approved green energy onto the power grid.)

In your view, what factor would make this example sufficiently different from the ACA that the SCOTUS ruling wouldn't serve as a strong precedent in its favour?

As another specific example, suppose location-tracking smart phones grew to be considered "indispensable" technology in terms of monitoring the health of the user, helping to locate the user in cases of an emergency, giving the user the ability to contact somebody in case of an emergency, etc.  Suppose the US federal government wished to impose stiff "emergency offset" fines on citizens not carrying (approved) smart phones. The same question above applies.

As you may know, Richard isn't the only one worried about the ACA ruling becoming a catch-all precedent.

ETA: Also, Richard: if you want to tear apart Obamacare, do it on the basis of its (deficit-goosing) costs and its role as an impediment to true socialized (a.k.a. "single payer") healthcare in the US. You don't have to look to possible future precedents to see the act screwing American citizens.

[djAdvocate]

this thread has nothing to do with the ACA.  i have already answered your question as much as i intend to do so at this time in post 127.  if you want me to elaborate, start a thread on the ACA, and i would be happy to do so.

tyia

[Virgil Showlion]

ywimc

[djAdvocate]

i am no constitutional expert, so i don't really know why my opinion matters on this subject, but here is how i interpreted the ruling.

the ruling enables the universal mandate to be applied for health insurance.  that is clear.  it allows it to function as a tax, not as a fee/purchase of product/etc.  the question is: does this "precedent" apply narrowly to things like insurance, or more broadly to other products, like meat and cars.

to answer this question, i would first direct you to the idea of marginal utility.  if there is no social benefit derived from collective pooling of resources, then there is no essential purpose for a mandate to do so.  i sort of have a Maslow view of this problem: that if the collective pooling fulfils no basic need, we have no business doing it publicly.  health insurance is such a need.  most other things are not.

secondly, what is often forgotten about the ACA is that it doesn't have anything to do with the mechanics of care, only the funding mechanism.  the way insurance works (in general) and the way, say, collecting taxes for the purpose of defense or highways work, is so similar, in my way of thinking, that they could easily be mistaken.

finally, i don't think this is nearly the precedent that the right does.  mandatory insurance is already done in 47 states.  this idea has been tested for over half a century.  i don't know of any challenge to it.  Medicare is a national insurance program.  again: few voice objections to it.  the idea that a fairly moderate version of this, with much higher utility, is somehow a UNIQUE moral outrage, or "harmful" to "100%" of the public is just false.  it is a rather blase precedent that has been tested both nationally and locally for half a century, with little objection.

edit: my conclusion is that this is an extension of existing law that applies narrowly to resource pooling for universal needs, not a mandate to force people to buy lawnmowers or other "products".

which brings us back to Obama: the only possible reason that it is so "objectionable" this time.....

[Virgil Showlion]

Auto insurance is already mandated in 47 states. It applies specifically to people who own cars. Health insurance is mandatory in only a handful of states, and unlike auto insurance it isn't a responsibility accompanying a privilege such as the ability to drive a car or own a home.

The argument about the PPACA being similar to Medicare is legitimate in the context of "Why are you so opposed to the ACA when you're for Medicare?", but it doesn't have any bearing on the SCOTUS ruling. To the best of my knowledge, the ACA's resemblance to Medicare wasn't a factor in the Justices' decision. The lack of resemblance to Medicare won't affect any future rulings. Or at least there's nothing I can see in the ruling that suggests it would.

I don't understand what marginal utility has to do with anything, but you seem to be using it in the sense of (plain old) utility. As in: if there's no collective need/use for a mandate, the government won't mandate it. Which is why I gave two specific examples where the government could easily argue that it's in the public's interest to participate whether they want to or not.

Decentralized power generation is far more efficient and robust than centralized generation; everybody uses power; hence everyone putatively benefits from the requirement that all households (or neighbourhoods) generate a certain minimum amount of power. Ergo, utility.

Everybody is at risk of being in an emergency, being lost, being in a situation where they need to be located, or being in a situation where monitoring of their vital signs could save their life. Mandating that every person carry a compliant smartphone on their person is an acceptable sacrifice for the general well-being of the people. Ergo, utility.

I can also make compelling arguments in favour of fines on people who transact using anything other than credit and debit cards (which includes barter, cash, and virtual currencies, and which is proposed in whitepapers making their rounds as we speak), fines on not owning a bank account, fines on parents who home school their children, fines on existence (a.k.a. carbon taxes), fines on families that live outside of urban areas, fines on families that refuse to regularly vaccinate themselves or their children, fines on not petting snow leopards once every six months*. As times get tough, a lot of people are going to be awed and astounded at the things world governments deem indispensable in fulfilling collective needs.

It's irrelevant whether the mandate concerns the funding mechanism rather than the mechanics of a behaviour. You can work around any of the above examples using the same logic.

We're using the carbon fines to fund green technology research.

We're using the transaction fines to defray the costs of prosecuting fraudsters, money launderers, and counterfeiters. Et cetera, et cetera.

The only people who won't be driven into compliance with the mandates are the super rich who can afford to blow thousands of dollars a year on fines (or "offsets") that buy them the right to act and conduct business as they please. The Al Gores of the world. The rest of everyone will be out of luck. Comply or become destitute. Your choice.


*admittedly I made this one up

[djAdvocate]

Virgil: i meant for ALL THREE of those things to be used together: A+B+C.

you are arguing separately, and that is a weak rebuttal.

i am arguing that you need to have high social value on a nearly universal need AND
that this is ONLY about collectively funding (through individual, private contributions) that need, not providing for it directly AND
that we have done this many times with other collective needs, including healthcare.

THEREFORE, i don't see the ACA as any sort of wild eyed piece of socialism that hangs like an Albatross on Obama and Roberts.  rather, i see it is as a market based extension of what has been done for half a century.  edit: i also see it as a way of funding Reagan's unfunded mandate.  if you are going to mandate that hospitals accept people no matter what their insurance status, shouldn't you make it so that everyone is able to obtain insurance, so that those events CAN BE covered?  otherwise, you are kinda begging for trouble, right?  the logical extension, of course, is universal insurance.  i think that is a very civilized goal.

i think it is a pretty coherent argument, Virgil.  would it hurt to give me a bit of credit for it.  after all- i didn't avoid you.  i answered you directly.  just like you like.  i didn't mince words.  i came right out and said what i thought.  a little encouragement, here, please.  it is good for relationship building. 

__________

your hyperbolic conclusion is unhelpful to your argument, by the way.  the whole idea behind the ACA is to prevent people from becoming destitute.  if it has the opposite effect, i will be to the degree that it fails it's promise to become universal, not the degree to which it works.  but, for the record, i do like snow leapords (sic).

[Virgil Showlion]

You're arguing that the ACA isn't a radical departure from mandated funding for other socialized needs, and that it's a civilized goal. OK, fine.

I also agree with you that funded initiatives are better than unfunded ones (although since the ACA is just heaping billions onto your federal deficit, we're going to have to make believe that it's a funded initiative).

But then you seem to be making the leap to "Ergo, since the ACA was so desperately needed and a logical next step, the SCOTUS ruling will only serve as a precedent for future mandates that are desperately needed and logical next steps." And I'm telling you it just don't work like that. If the government wants to put something in, the ruling doesn't discriminate based on how much people want or need it.

As much as we may or may not approve of the ruling's applicability to the ACA, it has far broader implications.

Why, you ask? What makes it such a milestone? What makes it different from, say, a nationwide tax on picket fences?

Let's ask ourselves:

Besides the ACA, what are examples of the US government taxing or penalizing citizens for not doing something that's clearly elective?

Not filing income taxes is one--and most people begrudgingly accept income taxes because obviously government needs at least some tax revenue to operate.

Not filling out a national census form is another. Most people begrudgingly accept this duty because it doesn't cost anything.

The military draft is a third, and I believe you've gone on record along with a great many others here saying that you'd refuse to fight under some circumstances.

Depraved indifference to human suffering is another. It's illegal to walk by a baby in a dumpster without doing something or informing the police.

These are American "freedom taxes" imposed by the vaunted social contact. If Joe Q. Yankee does absolutely nothing besides sit in a culvert eating rats his entire life, the government nevertheless requires him to do these things. In other words, "freedom taxes" are taxes/duties purely of collective benefit (that is, having no individual benefits beyond the individual's part in the collective) that cannot be avoided by any means short of renouncing citizenship.

You'll note that the four "freedom taxes" mentioned have been in effect since the very foundation of the United States. You'll also note that the requirement to purchase health insurance clearly wasn't put into effect along with them. In fact I can't think of a single new freedom tax levied on the American people since the Great Depression. Can you?

Freedom taxes are particularly dangerous and particularly loathed because (as I've pointed out) they're of no direct benefit to the individual, they can't be avoided, and they can very accurately be characterized as "forced service to society", even if most people acknowledge that a bit of forced service all around is a good thing.

And therein lies the reason the precedent is so dangerous. It serves as a legal foundation for arbitrarily creating and imposing freedom taxes. Where you get your faith that freedom taxes will only be imposed for mandates that you would approve of is beyond me, especially with TPTB salivating at the prospect of soaking the world with carbon taxes, 24/7 surveillance, and Agenda 21 health and education mandates, to name but a few.


As for giving you credit for your argument, consider my encouragement to be my not telling you that your rebuttal is weak and your conclusions are hyperbolic.

[EVT1]

Virgil- I understand your argument, but why? 

It goes directly to the function of government- and there is a fundamental disagreement there.

You should join PBP and start pooling your ammunition for the eventual fall of the US government . Such a precarious perch we live on

[djAdvocate]

Virgil: i never said that the ACA was "desperately needed".  what i claimed is that the need it serves is way down on Maslow's pyramid.

desperately = something tragic will happen without it.  i am not sure that is true.  what is VERY MUCH TRUE is that people will continue to be bankrupted just for getting ill.  does that seem fair to you?  or are you one of those folks that think that the unfortunate should be flushed down the drain with the bad planners (don't think i am kidding about this for an instant- there are MANY on this board that have articulated PRECISELY that position)?

i want to live in a society where EVERYONE has access to AFFORDABLE healthcare.

honestly, i don't think the argument is more complex than that.

if the ACA doesn't serve that goal, it at least started the conversation.

[djAdvocate]

Virgil: i think we disagree on "clearly elective".  medical care is NOT clearly elective.  it is a human need, at one point or another.  what is clearly elective is whether someone else pays for it or not.  the system we had before the ACA was such that if you had a non-elective medical condition, and could not pay for it, that the costs would be socialized.  the future doesn't have to look like that.  but in order for it to NOT look like that, EVERYONE has to be insured.

agree or disagree?

[djAdvocate]

Virgil: two more things.....

what you call "freedom taxes", i call "collective interests".  it is what nations and governments are built on.  i think that adequate, affordable, accessible healthcare should be on this list.  if you don't, i don't give two whits- particularly since YOUR country DOES.

second i was suggesting that you give some positive reinforcement occasionally.  it might jumpstart what i used to think of as a friendship.  but you can keep wielding the stick instead as if i was some sort of probate, if you wish.    just keep in mind that others are watching, and that leaders are always judged by how they use or abuse their authority, despite their obliviousness to that simple truth.

[Virgil Showlion]

You're doing a fine job debating, DJ.

You've got me on the ropes.



Moving on:

Easily 95% of your three responses is a defense of socialized healthcare. I like socialized healthcare. I don't think the ACA aspires to it, but that's another matter entirely. And in any case, this isn't a debate on the merits of socialized healthcare. It's an examination of the precedent established by the SCOTUS re freedom taxes.

Your argument seems to be summarized in your first post: you believe this ruling has no broader implications than the ACA. It's no more complex than that.

Why you're so confident the precedent won't be used to bootstrap other initiatives the government deems to be in the collective public interest, I don't know. There certainly isn't any language in the ruling that limits its applicability to healthcare only.

Or perhaps you've silently conceded that this is a bad precedent with broader implications, but it was needed to usher in quasi-kind-of-sort-of-socialized healthcare, which makes it the lesser of two evils. I can accept that. I think you'll be shocked and amazed at the broader implications, but I can at least understand your position.

As for "clearly elective", I mean that the mandate isn't imposed by any natural law. A man cannot choose whether he wants to eat food, find shelter, dress warmly in winter, etc., presuming he wishes to live more than a few days. These mandates persist in the absence of society. Paying taxes, purchasing health insurance, joining an army, etc. do not have this property. An individual can choose to eschew them and (barring punishment imposed by the government) live to a ripe old age as has been done in the Americas since time immemorial. Hence by "clearly elective", I mean "not imposed by any natural law".

[AgeOfEnlightenmentSCP]

The ACA does aspire to socialized medicine- it is specifically crafted to collapse what's left of private market insurance and healthcare so we can move to one-size-fits-all government-run healthcare administered by bureaucrats like at the VA, but with the IRS as the collection agency. It's a planned disaster, but of course proponents of government run healthcare will blame it on the failure of the so-called "free market" in spite of the fact they're strangling the free market in taxes and regulations.

Obama - Remarks to AFL - CIO
"I happen to be a proponent of a single-payer health care plan. The United States of America--the wealthiest country in the history of the world, spending 14 percent--14 percent of its gross national product on health care and cannot provide basic health insurance to everybody and that's what Jim is talking about when he says, 'Everybody in. Nobody out.' A single payer health care credit--universal healthcare credit. That's what I'd like to see, but as all of you know, we may not get there immediately. Because first we have to take back the White House and we've got to take back the Senate and we've got to take back the House."

Obama - Remarks - 8/4/07
l healthcare system signed into law by the end of my first term as president and build off that system to further to make it more rational..."

"By the way, Canada did not start immediately with a single payer system. They had a similar transition step. "

Obama- New Hampshire Public Radio 11/21/07

OBAMA: It's a transitional system building on the existing systems that we have.
HOST: Transitional to what?
OBAMA: Transitional, hopefully, because the system is currently a patchwork of inefficiency that over time I would want to see Medicaid, Medicare, the Children's Health Insurance Program (SCHIP)--all those integrated more effectively.

Obama - Public Remarks 4/3/07
"Let's say that I proposed a plan that moved to a single payer system--Let's say Medicare plus. Essentially, everybody can buy Medicare, for example..."

"Transitioning a system is a very difficult and costly and lengthy enterprise. It's not like you can turn on a switch and you go from one system to another. So it's possible that up front, you wouldn't need not just-- you might need an additional ninety or a hundred billion dollars a year."

Obama - (SEIU Healthcare Forum) - 3/24/07

"But I don't think we're going to be able to eliminate employer coverage immediately. There's going to be potentially some transition process. I can envision a decade out or 15 years out or 20 years out.."

Obama - Public Remarks - 1/27/05

"There's no denying that part of the solution in the health care arena as we transition and deal with the legacy systems that we've inherited will probably require some additional money."

Obama - Remarks to American Medical Association - 6/15/2009

"The public option is not your enemy. It is your friend...Let me also address an illegitimate concern that is being put forward by those who are claiming a public option is somehow a Trojan horse for a single payer system."

Obama - (SEIU Healthcare Forum) - 3/24/07
"My commitment is to make sure we've got universal health care for all Americans by the end of my first term as president..."

"I would hope that we could set up a system that allows those who can't go through their employers to access a federal system or a state pool of some sort...but I don't think we're going to be able to eliminate employer coverage immediately. There's going to be potentially some transition process. I can envision a decade out or 15 years out or 20 years out.."

Rep. Barney Frank (D - MA) - 7/27/09

"I think if we get a good public option, it could lead to single payer and that's the best way to reach single payer."

Rep. Jan Schakowsky (D - IL) - 4/18/09

"And next to me was a guy from the insurance company who then argued against the public health insurance option saying, 'It wouldn't let private insurance compete--that a public option will put the private insurance industry out of business and lead to single payer.' He was right. The man was right."

[b2r]

  Administration: the success of ACA shrinks the economy 2.9% in first quarter of this year...and it was cold! 

[djAdvocate]

Virgil:

you tend to talk in absolutes.  i don't believe i said that it has NO implications for anything OTHER than the ACA.  i think it has implications for any sort of public need that requires OR is best suited to large scale public financing.

i offered several as examples: our public highway system, medicare, and one i have already forgotten. 
but there are many others of course: the space program, defense, the judicial system, social security.  these are all socialized systems in which public needs are met by universal funding.  i think the GOAL of ObamaCare is precisely that.  Obama has stated it himself, as Paul just pointed out. 

you can take a cynical view that the ACA is an OBSTRUCTION to universal (aka socialized) insurance.  i can see some merit to that perspective.  but i think it will eventually give way to that, just as much as the hystronical (just made that up) right does.

thus, my point is this: the government already universally taxes for items of public concern.  for me, that is not something to be outraged about.  it is kindof what government is there for.  so, i am not really getting why the precedent is such a big deal.

oh, and no, i don't consider eating, or anything else on Maslow's first level to be "elective" in any sense of the term.

[djAdvocate]

Jun 25, 2014 12:23:39 GMT -5 b2r said:

  Administration: the success of ACA shrinks the economy 2.9% in first quarter of this year...and it was cold! 

not sure what you are laughing about.  this is pretty bad news for everyone.  do you hate America, b2r? 

[Aman A.K.A. Ahamburger]

Jun 25, 2014 14:45:35 GMT -5 djAdvocate said:

Jun 25, 2014 12:23:39 GMT -5 b2r said:

  Administration: the success of ACA shrinks the economy 2.9% in first quarter of this year...and it was cold! 

not sure what you are laughing about.  this is pretty bad news for everyone.  do you hate America, b2r? 

[djAdvocate]

Jun 25, 2014 15:39:37 GMT -5 Aman A.K.A. Ahamburger said:

Jun 25, 2014 14:45:35 GMT -5 djAdvocate said:

not sure what you are laughing about.  this is pretty bad news for everyone.  do you hate America, b2r? 

not getting this, either.  what exactly does that represent?

[djAdvocate]

note to the board: check out Paul's 2007 comment from Obama about the cost of the system: $90-100B/year.  is that not almost exactly what it will end up costing, according to most projections?

[Aman A.K.A. Ahamburger]

Jun 23, 2014 21:50:40 GMT -5 djAdvocate said:

Jun 23, 2014 21:17:14 GMT -5 @richardintn said:

ETA: Focus on the lollipops and ignore the broken arms all you like.

hopefully the broken arm will get fixed by an affordable insurance policy.  the lollypop is just a parting gift. 

[Lizard King]

Is it bad form to introduce into this debate the expert opinion of the four Justices dissenting in NFIB v Sebelius?

www.law.cornell.edu/supremecourt/text/11-393#writing-11-393_DISSENT_5

"Our cases establish a clear line between a tax and 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.’ ” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931) ). 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. We have never held that any exaction imposed for violation ofthe law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt{s} the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922) ."

This is an excerpt from a more sweeping dissent, but one that addresses specifically the precedent set in construing the individual mandate as a tax. Arguably, the bad precedent is one of jurisprudence: Congress clearly and correctly construed the mandate as a regulatory penalty, and SCOTUS ought to have recognized this. Muddying the clear legislative distinction between tax and penalty does indeed have serious consequences, not least for the potential scope of power given to the IRS thereby; it also allows the legislative branch to cite its power under the broadly-constructed Spending Clause where properly it were intra vires only under the narrower Commerce CLause.

In my view, this does indeed constitute at least two slippery slopes, although there is grounds for optimism that the dissent may become important ammunition for future courts, as Justice Harlan's dissent in Plessy v Ferguson did, for example.

[/s][/a]

[Virgil Showlion]

Jun 26, 2014 15:30:11 GMT -5 Lizard King said:

Is it bad form to introduce into this debate the expert opinion of the four Justices dissenting in NFIB v Sebelius?

www.law.cornell.edu/supremecourt/text/11-393#writing-11-393_DISSENT_5

"Our cases establish a clear line between a tax and 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.’ ” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931) ). 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. We have never held that any exaction imposed for violation ofthe law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt{s} the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922) ."

This is an excerpt from a more sweeping dissent, but one that addresses specifically the precedent set in construing the individual mandate as a tax. Arguably, the bad precedent is one of jurisprudence: Congress clearly and correctly construed the mandate as a regulatory penalty, and SCOTUS ought to have recognized this. Muddying the clear legislative distinction between tax and penalty does indeed have serious consequences, not least for the potential scope of power given to the IRS thereby; it also allows the legislative branch to cite its power under the broadly-constructed Spending Clause where properly it were intra vires only under the narrower Commerce CLause.

In my view, this does indeed constitute at least two slippery slopes, although there is grounds for optimism that the dissent may become important ammunition for future courts, as Justice Harlan's dissent in Plessy v Ferguson did, for example.

It's an extremely relevant precedent, Jim. I don't know if/why the SCOTUS ignored it.

If they were aware of it, I suppose as many as five of them somehow felt the scope of the precedent wasn't sufficient, or (more likely) that the insurance opt-out penalty wasn't a penalty.

Do you know if any of the Justices reference NFIB v Sebelius? Particularly the five supporting Justices?

Thanks for the insights, and equally so for the ruling's implications re the IRS and legislative branch.

[973beachbum]

Jun 24, 2014 23:46:16 GMT -5 djAdvocate said:

Virgil: i think we disagree on "clearly elective".  medical care is NOT clearly elective.  it is a human need, at one point or another.  what is clearly elective is whether someone else pays for it or not.  the system we had before the ACA was such that if you had a non-elective medical condition, and could not pay for it, that the costs would be socialized.  the future doesn't have to look like that.  but in order for it to NOT look like that, EVERYONE has to be insured.

agree or disagree?

I want to disagree with something not exactly on topic.  Before ACA and everyone having coverage you did not get treated regardless of your ability to pay.  People in car accidents who were wheeled into the ER get treated, but the person who went to the ER for stomach pains could have been told they had cancer and wasn't treated for it.  They were given a referral to see a specialist who would only start treatment after they had determined how they were going to pay.

Of course there are programs to help people pay for things like cancer but you have to find them and then apply and hope you get the funding.  I know of one person who did that and by the time they get the funding the cancer had spread.

Anyone not believing me look up the Diamonds thread and see how many problems she has because she couldn't afford healthcare and she won't be treated until she secures the payment first.

[djAdvocate]

the immorality of having people die rather than get lifesaving treatment is rarely considered in this debate.

[Virgil Showlion]

This isn't a debate about whether the ACA was/is a step in the right direction. It's about the ramification of the precedent set to get it in.<br><br>FWIW, if (when) the US goes broke and has to cut Medicaid, Medicare, and PPACA subsidies by 50% (during a period of skyrocketing demand and double-digit inflation, no less), the hundreds of millions of people left without access to medical care at that point aren't going to care that your hearts were in the right place when you started heaping hundreds of billions onto the federal deficit for their benefit.<br><br>So don't come wagging your finger at me about morality. The belief that taxes will go up a little, retirement age will go up a little, budgets will be trimmed here and there, and everything will be peachy is a fantastic fiction. There's nothing moral about grinning and prophesying that everything will turn out OK without any justifiable basis for the belief. <br>

[Lizard King]

It's an extremely relevant precedent, Jim. I don't know if/why the SCOTUS ignored it.

If they were aware of it, I suppose as many as five of them somehow felt the scope of the precedent wasn't sufficient, or (more likely) that the insurance opt-out penalty wasn't a penalty.

Do you know if any of the Justices reference NFIB v Sebelius? Particularly the five supporting Justices?

Thanks for the insights, and equally so for the ruling's implications re the IRS and legislative branch.

I don't know if I misunderstood the original post, but NFIB v Sebelius was the case that declared the individual mandate penalty was, in defiance of plain language, norms of jurisprudence, common sense, and even the logic of its own ruling, a tax, purely and simply because to do otherwise would have been unavoidably to strike down the whole of the law, a result for which there simply wasn't a quorum upon the bench.

The majority opinion, authored by Chief Justice Roberts, held as follows:

1) That the litigation could precede notwithstanding the proscriptions in the Anti-Injunction Act (which is what normally prevents hoi polloi from disputing the findings of the IRS, at least a priori), because - and this is an astonishing admission in the light of the following - the ACA explicitly labels the mandate as a penalty rather than a tax. It's worth bearing in mind that longstanding precedent has established a standard of review that's applicable here: the SCOTUS overreaches whenever its construction of a law does violence to the plain meaning of the language set down by the legislative branch. The judiciary are not allowed to play "what-if" games and rewrite the law from the bench, and this means that, in this particular, a mandate explicitly and repeatedly termed a "penalty," often specifically in contrast to "taxes" enacted by the same law, cannot reasonably be construed as a "tax" itself. The Roberts opinion acknowledges this point in granting standing for the petitioner to make a claim at all, and then jettisons it arbitrarily when considering that same claim.

2) In Robert's own words:

"The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."

On a simple reading of the legislative language (such a characterization being relative in the context of such a labyrinthine piece of legislation), the reasonableness of this characterization is highly suspect. On a passing understanding of the legal distinction between a "tax" and a "penalty," clearly alluded to in Alito's dissent, the characterization is not at all "reasonable" - it is simply false.

It's worth pointing out that the Roberts opinion clarifies that the individual mandate is not a "direct tax" - and so not subject to apportionment among the several states according to population - that is to say, it is not a tax on either property or capitation. It is, in the history of the United States, the only "tax" effectively levied on every citizen that is not considered a capitation tax (they usually are, since the definition of a capitation tax is one levied on every individual citizen).

From Wikipedia:

"In a general sense, a direct tax is one imposed upon an individual person (juristic or natural) or property (i.e. real and personal property, rental profits, livestock, crops, wages, etc.) as distinct from a tax imposed upon a transaction. In this sense, indirect taxes such as a sales tax or a value added tax (VAT) are imposed only if and when a taxable transaction occurs. People have the freedom to engage in or refrain from such transactions; whereas a direct tax (in the general sense) is imposed upon a person, typically in an unconditional manner, such as a poll-tax or head-tax, which is imposed on the basis of the person's very life or existence, or a property tax which is imposed upon the owner by virtue of ownership, rather than commercial use."

Notice that, in general, an indirect tax is one that the individual can avoid by refraining from the taxed activity. The individual mandate is unique in that it can only be avoided by engaging in the mandated activity. This is a hugely significant inversion of the normal relation between taxation and liberty. There is an absolutely massive difference between "do it, and we'll draw a percentage off the costs of doing it into the commons for the common good" and "do it, or else."

[Lizard King]

Jun 27, 2014 10:26:53 GMT -5 djAdvocate said:

the immorality of having people die rather than get lifesaving treatment is rarely considered in this debate.

In the legalistic debate of what troubling precedents are set by the mischaracterization of a penalty as a tax?

It's probably because the (unquestionable, to my mind) immorality of having people die rather than get lifesaving treatment (as happens when the government rations care, directly or indirectly, in order to control costs... SOMEBODY doesn't get the care they need in every system in the world) is entirely unrelated to the debate at hand. One windmill at a time, Sancho Panza.

[Lizard King]

Jun 27, 2014 12:07:33 GMT -5 Virgil Showlion said:

This isn't a debate about whether the ACA was/is a step in the right direction. It's about the ramification of the precedent set to get it in.

FWIW, if (when) the US goes broke and has to cut Medicaid, Medicare, and PPACA subsidies by 50% (during a period of skyrocketing demand and double-digit inflation, no less), the hundreds of millions of people left without access to medical care at that point aren't going to care that your hearts were in the right place when you started heaping hundreds of billions onto the federal deficit for their benefit.

So don't come wagging your finger at me about morality. The belief that taxes will go up a little, retirement age will go up a little, budgets will be trimmed here and there, and everything will be peachy is a fantastic fiction. There's nothing moral about grinning and prophesying that everything will turn out OK without any justifiable basis for the belief.

We live in an era where the moral high ground is confused with remoteness from material consequences of the moral position extolled.

[djAdvocate]

Jun 27, 2014 12:54:26 GMT -5 Lizard King said:

Jun 27, 2014 10:26:53 GMT -5 djAdvocate said:

the immorality of having people die rather than get lifesaving treatment is rarely considered in this debate.

In the legalistic debate of what troubling precedents are set by the mischaracterization of a penalty as a tax?

dude, you know i was speaking more generally than that.  and i am fine, btw.  hope you are, as well.

edit: i wasn't "finger wagging" for the record.  i was pointing out that there is a larger debate here than the one posited in the OP.  we are not discussing it here.  that is FINE.  but that doesn't change the fact that it exists, outside of this lofty/arcane discussion.  oh, and beachbum SPECIFICALLY MENTIONED that his comment was "off topic", in case you didn't notice.  my reply was to that post...only.

[Lizard King]

And I was pointing out that that "larger debate" isn't on this thread. It's, you know, larger than that.

So we're all agreed. What a happy circumstance with a weekend hoving into view!