General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsCan the President still say that the mandate is not a "tax"??
After the Supreme Court decision, where the Chief Justice made the winning argument for the Administration, the President won the case because Chief Justice Roberts said that Congress had the authority to tax and voted to uphold the Healthcare Act.
However, it is a two-edged sword. The President won his battle before the Supreme Court but only on the condition that it is a tax. From that perspective, the Republicans could declare a political victory, since they get to run against Obama's huge "tax increase".
So, was it really a victory for President Obama and the Democrats? The Democrats still do not want to call it a "tax" but if the Chief Justice had not ruled the way he did, the entire bill could have gone under?
At the most, it is a Pyrrhic victory. The Democrats have to accept that it was a tax increase and fight on those grounds, or the Republicans will pummel them with the "big-spending liberal" charge. From this perspective, which Party won the Supreme Court decision?
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treestar
(82,383 posts)President Obama and staff are smart enough to answer this question. It is not a "tax increase" for one thing. It's a tax on a behavior. And you get something specific in return for the tax. As such, that can be identified moreso than in general what we get in return for our taxes.
kentuck
(111,078 posts)Congress has the authority to tax. Otherwise the entire bill would have gone under if Roberts had voted with the other 4 conservative judges. A Pyrrhic victory carries a heavy cost. In this case, it will be labeled a huge "tax" on the people. In that sense, the Democrats could pay a heavy political price for the "victory".
BumRushDaShow
(128,837 posts)
Volaris
(10,270 posts)And EVERY TIME one of my idiot 'bagger relatives opens their mouth about Obamacare, they are going to be forced to watch the REPUBLICAN candidate for President explain how Mass. (and now America) adopted a Republican solution to an issue near and dear to the hearts of liberals.
This might not be the knife that wins The President re-election, but it IS the knife that causes the R-MNY-BOT (version 2.0) to lose it.
Fuck em.
treestar
(82,383 posts)The ACA remains in effect. Its positive attributes can be touted.
razorman
(1,644 posts)on the president's chance for reelection. If the Repubs can successfully campaign on the "tax hike" angle, it may help them. Considering the SCOTUS ruling, President Obama cannot claim that the mandate is not a tax, and have the ACA still held constitutional. That fight is over. He now has to figure a way to effectively combat the "tax raiser" label.
treestar
(82,383 posts)The Obama campaign is capable of positive spin on the health care plan.
Rs would say Obama is raising taxes anyway. They say that every four years.
A Pyrrhic victory (/ˈpɪrɪk/) is a victory with such a devastating cost that it carries the implication that another such victory will ultimately lead to defeat. Someone who wins a "Pyrrhic victory" has been victorious in some way; however, the heavy toll and/or the detrimental consequences negates any sense of achievement or profit. There is, therefore, no reason to celebrate.
Contents [hide]
1 Origin
2 Examples
3 See also
4 References
How anyone can say the law being upheld is a pyrrhic victory is beyond all. So it would have been better to have it knocked down? The average voter sees a "winner" here and that is better than the Rs being able to say there is a tax hike under a Democrat (something they would have said anyway).
razorman
(1,644 posts)The voting public will have to decide which to believe. I hear the R's talking about a "silver lining" in their defeat on this issue. It has them plenty riled up. It looks like a lot of conservative fence-sitters will now back Romney because of this. Frankly, I do not see much of the same anger or enthusiasm on our side. It has me worried. What the general public believes or doesn't believe is irrelevant, if they don't bother to vote.
zbdent
(35,392 posts)Mitch McConnell & company appear to be the President, not Obama. They get daily press conferences when they want to attack Obama or whichever Dem makes a minor faux pas, all the while ignoring Romney's "I like to fire people" statement.
treestar
(82,383 posts)Yet it is still possible to win. They did it in 2008.
People are already feeling effects of the benefit of the ACA.
Beartracks
(12,809 posts)
kelly1mm
(4,732 posts)"And you get something specific in return for the tax." What exactly do I get?
treestar
(82,383 posts)That will cover catastrophic losses. Look, we can understand rabid hatred of insurance companies in general. But they don't deny every single claim. If they do, they at least have some reason.
You don't have car insurance either, right, since you get "nothing" in return for it.
kelly1mm
(4,732 posts)don't have a health insurance policy. Not having a health insurance policy and thus paying the tax does not get you anything health insurance wise (or any other benefit). The tax goes to general revenue.
treestar
(82,383 posts)The government is friggin' going to subsidize it if your income is low enough.
the tax is for people so stubborn they won't buy health insurance even though they can afford it. The idiots who think they are young and/or healthy and therefore can risk it. Then we pay for them when they go to the ER.
drm604
(16,230 posts)Do you have a cite for that?
treestar
(82,383 posts)expenses we can't handle in the course of things. That is why we buy them.
drm604
(16,230 posts)Look at the entire context of this subthread.
kelly1mm stated:
"And you get something specific in return for the tax." What exactly do I get?
Your reply to her query was:
That will cover catastrophic losses.
treestar
(82,383 posts)1. People rich enough to pay medical expenses out of pocket
2. People who can afford insurance but stubbornly insist they don't want to be "forced" to be covered
3. People who are so dumb they see no value in an insurance policy, (until they end up with a huge hospital bill, for which they blame "the insurance companies" the "health care corporations" and "the CEOs."
drm604
(16,230 posts)But where did you get the part about them receiving catastrophic coverage in exchange for paying the penalty, or did I misunderstand your post?
treestar
(82,383 posts)Paying for the coverage, with or without subsidy depending on income, would mean you'd have coverage for catastrophes (unexpected illnesses or accidents for which you would incur huge medical bills beyond your income).
The ACA is to make sure you are insured against those kinds of expenses. If you can't afford it, the government helps you. Why that has to be looked on as forcing you to do something awful and unfair is beyond astonishing, and that is what so many posters keep doing. So they will pay the penalty and the rest of us will continue to pay indirectly for their ER visits when things get bad. All because they were too stubborn to take a benefit. Just because they hate insurance companies so much.
girl gone mad
(20,634 posts)Woohoo.. a winning political argument if ever there was one. Misbehaving by not purchasing unaffordable insurance? There's a tax for that!
"And you get something specific in return for the tax."
No, you get nothing if you pay the tax. You get to help pay for hospital claims insurers deny, something which used to be covered primarily by Medicare and Medicaid. One less obligation for the elites to have to worry about. Oh joy.
treestar
(82,383 posts)It likened it to mortgage deductions or credits for education. The tax system is used to encourage a certain behavior. That is permissible under the constitution, as a valid exercise of the taxing power.
None of this is to say that the payment is not intended to affect individual conduct. Although the payment willraise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. See W. Brownlee, Federal Taxation in America 22 (2d ed. 2004); cf. 2 J. Story, Commentaries onthe Constitution of the United States §962, p. 434 (1833) (“the taxing power is often, very often, applied for otherpurposes, than revenue”). Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns. See United States v. Sanchez, 340 U. S. 42, 44– 45 (1950); Sonzinsky v. United States, 300 U. S. 506, 513 (1937). Indeed, “[e]very tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.” Sonzinsky, supra, at 513. That §5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.
Opinion of ROBERTS, C. J.
Cite as: 567 U. S. ____ (2012) 37
Opinion of the Court
Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote,for example, purchasing homes and professional educations. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding theindividual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.
drm604
(16,230 posts)So it's not unaffordable.
Motown_Johnny
(22,308 posts)four others upheld the law under the commerce clause and the other four voted to overturn the law.
So he can still debate the issue with things like "If this is a tax, then it comes with an automatic tax break for 99% of Americans".
On the other hand, he can no longer "absolutely reject" the idea.
*Edit* I said 99% and it could be more like 98%. Time will tell so for now I will concede the point.
Broderick
(4,578 posts)You do know it's not free...?
Wounded Bear
(58,645 posts)
Current projections say that only 2% of the population will be hit by the penalty "tax".
girl gone mad
(20,634 posts)2% might be possible if you only consider a very narrow window in time. Over months and years, however, a far greater percentage of people will be hit with the tax as they change employers, become unemployed, or are forced to drop insurance due to some other unforeseen circumstance.
Motown_Johnny
(22,308 posts)That is what the argument is about.
Most of the law is about things like forcing the insurance companies to pay out at least 80% of revenue on health care procedures. This helps pay for some of the increased care.
Yes the expansion of Medicaid will cost some tax dollars but that is more of a redirection of funds other than a new expenditure. People who are already paying for health insurance have increased premiums because of the uninsured using the Emergency Room and never paying the bill. Admittedly this now comes out of tax dollars instead of going through private insurance so it could be represented as a tax increase. Over all this should decrease those costs because the private companies are still skimming a percentage of that as a profit while the Government will have lower overhead (as Medicare and Medicaid already have).
I would rather see that tax/penalty go towards a public option so that these people would still have some form of insurance. The conservatives don't like that because so many people would opt for the government care that it would hurt their insurance company donors.
Yes, this is a tax in the same way that a tomato is a fruit. It is, but it still kinda isn't.
Broderick
(4,578 posts)I offer health insurance to my employees. Even reasonably paid folks opt out because they can't afford it. Will be trying to explain how the law will benefit them.
Motown_Johnny
(22,308 posts)I would suggest estimating the adjusted income for some of your employees and plug it in. Then compare that to what they are paying now.
You may be surprised.
Broderick
(4,578 posts)B2G
(9,766 posts)With 50 million unisured, do you really think 99% of them will choose to purchase insurance?
And if they do, what happens when you dump that many people into healthcare system at the same time?
Motown_Johnny
(22,308 posts)And it isn't all into one system at the same time. Medicaid will take a lot of them.
We are just talking about insurance here, they are not all showing up at the same doctor's office on the same day.
kentuck
(111,078 posts)They could argue that.
hughee99
(16,113 posts)when a government agency imposes a fine on someone for non-compliance, are they really imposing a "tax" now? They may have been given the power to levy fines, but not to tax, which is a power that lies specifically with congress according to the constitution.
treestar
(82,383 posts)It is just a tax, meant to affect behavior, like a cigarette tax.
Poll_Blind
(23,864 posts)...the Republican party a great deal of ammunition in an attempt to win the war they wage on Obama. I can only assume that it was the price he extracted in order to switch. It's hard to imagine that Roberts made a decision like this completely on his own. There's a certain type of diabolic brilliance to it which I kind of doubt he's capable of on his own.
I'm not sure a clear cut "winner" or "loser" was revealed, only opportunities that both sides will try to exploit as much as they may before election day.
PB
kentuck
(111,078 posts)Indeed.
I think Roberts weighed this very carefully and came to the conclusion that the ACA mandate was a "tax" and would help the Republicans in the election. The President would get to claim a "victory" but it would be short-lived.
Democrats have been running from the "tax" issue for years so it will be interesting to see how they address it? I have little doubt but that this is the way the Repubs will spin it.
Poll_Blind
(23,864 posts)...liberal outcome. That's a line from a piece in today's Seattle times. I'm going to pull out a little section of it for ya:
Neal Katyal, the former acting solicitor general who argued the Obama administration's side in the health care cases in several appeals courts, said that Roberts' majority opinion opened the door to potentially important changes in the law that could restrict federal power as it has been understood since the New Deal.
Ilya Somin, a George Mason University law professor, said on the Volokh Conspiracy legal blog that the health care case "gives supporters of limits on federal power some useful ammunition, despite also dealing us a painful defeat."
In addition, Roberts' ruling has helped refocus the public debate over the law and gave Republican opponents ammunition for calling it a big tax increase they would try to repeal.
The whole piece can be read here:
http://seattletimes.nwsource.com/html/politics/2018572349_apustherobertscourt.html
PB
kentuck
(111,078 posts)
Skidmore
(37,364 posts)who won't. It is a fine, not unlike those who refuse to purchase car insurance.
David__77
(23,369 posts)And are you so sure that these people can "afford" to purchase policies? Per a formula?
B2G
(9,766 posts)The wealthy have or will purchase insurance. The poor will get it though Medicaid or have it paid entirely through subsidies.
The middle class will bend over.
Warren Stupidity
(48,181 posts)Most people in any definition of the middle class are working at jobs that come with health insurance as a benefit. They will not be affected at all by the mandate.
Arkana
(24,347 posts)and if they can't they can afford to pay the penalty.
MjolnirTime
(1,800 posts)Obama won again. I thought you'd be used to it by now.
ChazII
(6,204 posts)
Nye Bevan
(25,406 posts)the President has to agree with him? That would be a peculiar theory.
kentuck
(111,078 posts)and it is in the opinion.
Nye Bevan
(25,406 posts)The other four in the majority did not use the "tax" argument.
kentuck
(111,078 posts)and he still doesn't think it is a tax, even though, ACA would be dead right now if the Chief Justice did not rule that it was constitutional only because Congress had the authority to tax?
Nye Bevan
(25,406 posts)but only one of these five said it was a tax.
Nice quick summary that also happens to be true.
"Because he wrote the majority opinion...and it is in the opinion."
...wasn't the relevant opinion.
...by upholding the ACA under the taxing power, he thereby rendered the holding on the limits of the commerce clause vulnerable to a court with one less conservative justice treating that aspect of the opinion as dicta (dicta are parts of a written SCOTUS decision that are unnecessary to the foundation of the result actually reached, and therefore merely in effect, commentary rather than binding precedent). The conservative wing of the court has used this tactic frequently over the past 30 years to incrementally chip away at decisions off previous more liberal SCOTUS decisions.
This is yet one more reason the 2012 Presidential election is so important, as will be 2016: to strangle Roberts "incremental radicalism" in the crib via SCOTUS appointments.
http://www.dailykos.com/comments/1104692/46626759#c9
Ginsburg said this in her concurrence. He has a discussion of how it's supposedly not Dicta, it it was in the part of the decision that he wrote for himself alone. It can still be important, though, because Roberts is right in a sense as he said in III.D that the CC analysis is logically prior.
Where it's outclevered, and consistent with being dicta, every concern he had with commerce clause "expansion" and broad federal power (dread broccoli), somehow stopped mattering where the text gave even less room for manoeuver. Congress regulate anything it wants if it imposes penalties for noncompliance, as long as it relates to other commercial regulations. Sounds a lot like the "substantial effects" test and the NP clause.
As constructed, Roberts' relevant opinion will make it extremely easy to sell single payer.
kentuck
(111,078 posts)But still, the Democrats would have to accept that they have the authority to tax and regulate anything it wants and be ready to accept the political consequences. Will these Democrats ever progress to that point?
Also, I would agree that Roberts' opinion would make it a lot easier to sell single payer. The only thing that would hinder that from happening would be the lack of will power by the Democrats.
ProSense
(116,464 posts)"But still, the Democrats would have to accept that they have the authority to tax and regulate anything it wants and be ready to accept the political consequences. Will these Democrats ever progress to that point?"
...can make the argument Verrilli made and also point out the facts related to Roberts' shift as Schumer did: http://www.democraticunderground.com/1002887119
One thing is certain, Republicans are going to try to argue that it's a tax increase, but that puts Mitt in a bind: http://www.democraticunderground.com/1002887389
kentuck
(111,078 posts)...the Democrats would need the courage to make the argument. Do you think they have the courage to defend the Verrilli argument? They are very scared of the word "taxes".
rufus dog
(8,419 posts)the four others in the Majority did not say it was a tax. The four in the minority said it was not a tax. Roberts was the lone Justice to say it was under taxing authority.
Funny, before I bought a house nobody claimed I was being taxed for not buying a home, but as a renter I paid out 12k plus per year as a living expense without and tax break. When I bought a house I actually lowered my living expenses due to a tax break!
girl gone mad
(20,634 posts)The White House argued that it was a tax. It was their lawyer who presented this argument to the Supreme Court.
Read the ruling.
“The reforms also threaten to impose massive new costs on insurers, who are required to accept unhealthy individuals but prohibited from charging them rates necessary to pay for their coverage. This will lead insurers to significantly increase premiums on everyone. The individual mandate was Congress’s solution to these problems. By requiring that individuals purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premiums on average will be higher than their health care expenses.”
“Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables ... That is not the country the Framers of our Constitution envisioned.”
“It is estimated that four million people each year will choose to pay the IRS rather than buy insurance ... We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.”
zoechen
(93 posts)Here is a partial transcript
<snip>
With Scalia:
JUSTICE SCALIA: The president said it wasn't a tax, didn't he?
GENERAL VERRILLI: Well, Justice Scalia, what the -- two things about that. First, as it seems to me, what matters is what power Congress was exercising. And they were -- and I think it's clear that the -- they were exercising the tax power as well as -
JUSTICE SCALIA: You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power. I'm just addressing the first.
GENERAL VERRILLI: What the president said -
JUSTICE SCALIA: Is it a tax or not a tax? The president didn't think it was.
GENERAL VERRILLI: The president said it wasn't a tax increase because it ought to be understood as an incentive to get people to have insurance. I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not.
With Kagan:
JUSTICE KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?
GENERAL VERRILLI: I don't think that that's a fair characterization of the actions of Congress here, Justice Kagan. On the -- December 23rd, a point of constitutional order was called, too, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to 39 on that proposition. The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power.
It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's -- not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.
<snip>
Read more
http://firstread.msnbc.msn.com/_news/2012/06/29/12481922-how-verrilli-may-have-won-over-roberts?chromedomain=nbcpolitics
kentuck
(111,078 posts)The decision and its political consequences are starting to come into focus.
4th law of robotics
(6,801 posts)supporters will have to argue simultaneously that it is constitutional because it is a tax while denying that it is a tax.
I love these kind of issues.
Nye Bevan
(25,406 posts)One guy by himself calling it a tax doesn't mean that we have to.
Tierra_y_Libertad
(50,414 posts)...distasteful to most voters.
pinto
(106,886 posts)(FactCheck.org)
Posted on June 28, 2012 , Updated on June 29, 2012
http://factcheck.org/2012/06/how-much-is-the-obamacare-tax/
Good overview of the specifics of the act ~ pinto
(ed to add link, duh)
dkf
(37,305 posts)The government has made itself responsible for the crappy behavior of insurance companies because they are forcing us to use them.
That is the one thing about being forced to buy car insurance...not many have big problems with their car insurance claims. But health care? It's not transparent at all and doing something not quite right, like going to the wrong doctor to stitch your wound, lands up costing thousands (true story btw).
If the goal was to get more people covered, I guess Dems won. If the goal is to provide good health care at a reasonable cost, we are now dependent on private insurers to create that outcome. Good luck to us.
B2G
(9,766 posts)It is payment for a service you choose to purchase.
dkf
(37,305 posts)B2G
(9,766 posts)I didn't see 'now' in your title. Sorry. 
PB
Warren Stupidity
(48,181 posts)lonestarnot
(77,097 posts)still_one
(92,131 posts)If it is a premium or a tax it is affordable for most, and for those where it isn't they don't have to pay it
flamingdem
(39,313 posts)then the "tax" idea will take a back seat. It will be massively popular.
dkf
(37,305 posts)They make too much to qualify for traditional Medicaid and make too little so that subsidies still keep it unaffordable.
Thus it is left to the states.
BootinUp
(47,139 posts)
ashling
(25,771 posts)Her opinion makes a whole lot more sense.
JoePhilly
(27,787 posts)And the Dems helped them get it.
Everything else is noise.
pennylane100
(3,425 posts)Call it anything you want but remember that it is considered a win for Obama and the millions of people that will benefit from it.
I am sure you mean well, but we should not be worrying about possible republican talking points. We need to make sure that we frame the message on our terms and if we can make voters understand, as Joe Biden so eloquently put it, "This is really a big fucking deal" As one thing we have learned since our supreme court VICTORY is the more people know about how it benefits all of us, the more they like it.
kentuck
(111,078 posts)This is really a big fucking deal. Is that all we need to say to sell it?
Personally, since it is a "tax" issue, I would tell the people what they are getting with the legislation and that if it happens to cost more, we will not ask the poor and middle class to pay, but rather those that reaped huge rewards from low tax rates for the last 30 years. Yes, if we need more money to pay for it, we will ask those at the very top to pay more. There. I said it.
Warren Stupidity
(48,181 posts)Your op appears to assume that taxes are bad.
kentuck
(111,078 posts)But I do not think the majority of Democrats in the House or Senate think the same way about taxes as you and I. I think they are scared shitless to even talk about taxes. They are afraid of losing their careers. But that is another issue entirely...
sad sally
(2,627 posts)like a tax, it must be a tax).
Staying with this subject (taxes) but veering a bit from your op, if the President and Democrats bend (which they've been known to do once or twice) and extend the Bush/Obama tax cuts and the FICA holiday for another year or two or ten, the "burden" of the health insurance tax will be less of a blow.
Kicking the can down the road is the best political game all like to play ('member all those children and grandchildren will be much better off - smarter too - they can solve these messy problems much better than today's nincompoops).
girl gone mad
(20,634 posts)Do you believe that regressive taxes are fair?
Warren Stupidity
(48,181 posts)You don't pay the tax if you are poor. you only pay it if you have too much income to qualify for subsidized insurance and are not covered and do not chose to purchase insurance. Seems rather not terribly regressive to me.
Fumesucker
(45,851 posts)One is roughly middle class and the other is not remotely so.
PotatoChip
(3,186 posts)Republicans have been claiming that President Obama is a 'tax and spend' kind of guy since long before he was even elected. Their sheeple believed it then and still do to this day.The President never had the vote of those types to begin with. So what difference does it make now? 
Life Long Dem
(8,582 posts)You choose to smoke you are taxed. You choose to be a freeloader you are taxed. Which happens to be less than 1% in Taxachusetts.
kentuck
(111,078 posts)...that since it was ruled constitutional because of Congress' authority to raise taxes, then it can be voted on in the next Congress and defeated with a simple majority of 51 votes in the Senate by reconciliation. They don't even have to win the Senate - all they need is a couple of Blue Dog Democrats to go along with them - if they can get it up for a vote.
So, this is their plan. If they hold the House, and win the Senate and the WH, they will repeal the entire bill by simple majority. That is their dream. Is it possible?
bigtree
(85,986 posts). . . and giving so much credence to the one who claims it's a tax/ it's just a political ploy from the bench; much like Scalia's politicking in his summary. They can all shove it. This President has nothing to be defensive about regarding taxes. Why should republicans be able to speak down to Democrats and others about what constitutes a tax; or how the tax code affects average Americans? All they want is a higher break for their rich brethren in loot.
Seems to me that you defeat your own political reasoning by beginning your premise with a right-wing Justice's manipulative summary and projecting the republicans' argument forward for them.
bluestateguy
(44,173 posts)There are also taxes in that bill on tanning bed salon visits, medical equipment makers and high income taxpayers under Medicare.
It takes taxes to run a government. Deal with it.
kentuck
(111,078 posts)There is no free lunch.
girl gone mad
(20,634 posts)In our modern money system, federal taxation is primarily the means by which the federal government controls inflation.
Considering that we are in an economic era defined by debt-deflation, the federal government probably shouldn't be raising taxes on the middle class and working poor. Worse, I think it's foolish to promote policies which push more money into the FIRE sector since finance and insurance are strangling the productive economy.
bigtree
(85,986 posts). . . can't he just as credibly align his view with the others who based their affirmative vote on the Commerce clause, for instance? Of course, he can.
kentuck
(111,078 posts)That was the rationale for the 5th and deciding vote.
With that said, I appreciate your argument because we are going to need it.
zoechen
(93 posts)Verrilli, the Solicitor General arguing the case on behalf of the administration made the argument that it was a tax.
4 votes were a lead pipe cinch to vote to uphold if Verrilli would have argued that the mandate is constitutional because my cats farts smell like motor oil.
There were also 3 lead pipe cinches in the other direction. In the end there was only one vote in question and as it turned out nearly everyone was wrong, Kennedy went with the minority, Roberts went with the majority citing Verrrilli's and the administrations argument.
Just get over it, the administration claimed before passage that it is not a tax and then when it came down to brass tacks argued that it is a tax.
Own it and move on.
Edited to clarify that this post isn't aimed at Kentuck.
former9thward
(31,974 posts)Obama's OWN lawyer argued it was a tax at the Supreme Court. That was the government's position.
The heart of Verrilli’s argument, that the mandate should be considered justified under the Congress’ taxing power, seemed to center on this point, which he made twice that day -- that the mandate would be administered by the Internal Revenue Service, the agency responsible for taxation.
“With respect to the question of characterization,” Verrilli told Justice Scalia, “the -- this is -- in the Internal Revenue Code, it is administered by the IRS; it is paid on your Form 1040 on April 15th.”
A few minutes later, pressed by Justice Roberts, he reiterated the point. “t is in the Internal Revenue Code,” Verrilli said. “It is collected by the IRS on April 15th.”
http://firstread.msnbc.msn.com/_news/2012/06/29/12481922-how-verrilli-may-have-won-over-roberts?lite
kentuck
(111,078 posts)It persuaded Roberts.
Yes, it takes 5 votes to make a majority. Roberts stated that Congress indeed had the power to tax. The Administration stayed away from the tax issue until the last day. Perhaps it was a necessity or else it would have failed. And what would we be talking about today?
What is the big deal whether or not it is about taxes?
zoechen
(93 posts)Tax.
To many Americans the word is anathema.
Heck, nobody "enjoys" paying taxes but most understand that it is the price one must pay for a functioning democracy.
But this thing is being portrayed as the single biggest tax hike in the history of the republic, I think it's going to be a hard pill to swallow for a great many people.
I also think attempts to spin this as anything other then a tax after the administration argued that it was, before the Supreme Court, is going to go down in flames.
And that, my friends, reminds me of 2010.
bigtree
(85,986 posts)That wasn't his central and overriding argument, by any means; but a fall back one where he trumps the Justices who can't abide by his other arguments -- like the Commerce clause provisions and authority.
He's being pressed by Scalia here who isn't going to accept his other reasoning. Verrilli's saying that even opponents in Congress acknowledged and highlighted its tax element, and that the Court must recognize the law as within Congress' authority; if ONLY on that basis ALONE.
Verrilli:
to Scalia: "The president said it wasn't a tax increase because it ought to be understood as an incentive to get people to have insurance. I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not."
to Kagan: "The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power."
"It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's -- not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis."
and more from Scalia:
JUSTICE SCALIA: You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?
GENERAL VERRILLI: It -- it used its powers together to solve the problem of the market not -
JUSTICE SCALIA: Yes, but you didn't need that.
GENERAL VERRILLI -- providing affordable coverage -
JUSTICE SCALIA: You didn't need that. If it's a tax, it's only -- raising money is enough.
GENERAL VERRILLI: It is justifiable under its tax power.
JUSTICE SCALIA: Okay. Extraordinary.
zoechen
(93 posts)<snip>
When the Affordable Care Act reached the Supreme Court, Verrilli insisted that the government's briefs should present two alternative grounds for upholding the law's insurance mandate. The first argument was that the law was valid under Congress' power to regulate interstate commerce. His fallback argument rested on Congress’s power to impose taxes.
<snip>
So if we assume that the commerce clause was his only arguement he would have lost and the mandate would have struck down, that would have prestaged the complete colapse of ACA.
So what he did was set up a buffet of options, Roberts found one of the administrations arguements fell within constitutional grounds.
The Congresses right to levy taxes.
Read more
http://www.latimes.com/news/politics/la-pn-scorned-after-oral-arguments-on-healthcare-verrilli-emerges-a-winner-20120628,0,7731384.story
Edit: To correct a poor choice of words.
bigtree
(85,986 posts)The tax element was just a base justification and validation of Congress' authority. It doesn't make it an overriding element of the legislation just because some critics harped on it. Good for the lawyer using their overemphasis on the tax point to rope the Court in. There is certainly other justification to let it stand, outside of pointing to their tax authority, but it was a clever and lawyerly tactic to make certain they used EVERYTHING in their defense available.
I think that, outside of these few exchanges, Verelli made his case on other justifications, but, if if took pointing to even the opposition's bleating about the tax element to pass the thing, so be it. It doesn't alter the president's central arguments at all; outside of the weak argument that it's taxing effect would fall on that 2% or so who either opt to pay the fine or failed to obtain coverage for other reasons.
zoechen
(93 posts)If Verelli had not made an argument to view the mandate as a tax and given that as a choice it would have been struck down 5-4 with Roberts and Kennedy in the majority.
If the sole arguement was the commerce clause the whole thing would have gone down in flames.
kentuck
(111,078 posts)And it has been reported that Roberts switched his opinion late in the game.
However, the Repubs would have to win the Senate and the White House in order to repeal the law. Since it is a tax creation of Congress, it could be repealed by a simple 51-vote majority in a reconciliation vote. However, that is a big "IF"..
bigtree
(85,986 posts)Last edited Mon Jul 2, 2012, 02:49 AM - Edit history (1)
. . . not politically or materially; especially when it only applies to the 2% or so who opt out or fail to obtain insurance for other reasons.
I have an insurance lapse fine that I haven't been able to pay the Motor Vehicle Admin.. It's going to be collected, anyway, by garnishing part or all of the money I expect to get back from my tax return. That doesn't make it a tax; it's still a motor vehicle insurance fine.
former9thward
(31,974 posts)It was not just some sideshow as you seem to put it.
bigtree
(85,986 posts)it is certainly a sideshow.
It's a penalty collected by the IRS, just like they collect other fines. Calling the mandate a tax is just a lie.
former9thward
(31,974 posts)Quite a charge. Of course coming from an anonymous internet poster one should not be surprised. You say 2%. That is what the boosters are saying now. I doubt that is how it is going to work out. The mandate to buy insurance from a third party for profit company affects 100% (that is more than 2%).
bigtree
(85,986 posts)the law does have an element of taxation to it. the lawyer pointed that out. That element gives Congress authority to impose the mandate, but it's still as I described; a fine which is collected through the tax system. It's also not the only thing giving Congress authority as some of the other Justices recognized. How tiresome to have to answer such bullshit over and over . Wallow in it, because you're completely wrong.
madrchsod
(58,162 posts)markpkessinger
(8,392 posts)Forbes has an article that points out this critical distinction. Similarly, a penalty imposed on a taxpayer for failing to file taxes is not, of itself, a tax, but the authority to impose that penalty arises directly out of Congress' taxing authority.
zoechen
(93 posts)That it was a tax and they won on the merits of that arguement.
Was it a mistake to make that argument?
kentuck
(111,078 posts)the entire bill would have been declared unconstitutional. It was a card they had to play.
zoechen
(93 posts)It's time to move past this thing and explain to the people why this ACA thing is good.
The more that the issue remains a tax question with 4 months to go to the election is going to be an "albatross on our necks".
Just own it and move on.
markpkessinger
(8,392 posts)The Solicitor made the argument on behalf of the administration that it is a tax and that is what allowed Roberts to find it as being constitutional.
Again I ask you, was it a mistake to make that arguement?
kentuck
(111,078 posts)Or to have the mandate called a tax?
I don't think the final decision was as clear-cut a victory for Obama or as clear-cut a defeat for the Repubs. The Repubs have a good chance of winning the Senate since so many seats up for re-election are Democratic. Barack Obama could be the only thing that saves the ACA from being repealed, since they could repeal it with a simple reconciliation vote in the Senate if Romney were the President.
Frankly I think this is already written to the supreme court records, that can't be changed.
As you note, if the Repubs gain leverage then the whole thing remains in doubt.
Continuing to bicker about wether this is a tax or whatever is a loser.
The administration admitted it was a tax during oral arguments and to continue to try to make it look like something different is not going to pass the smell test.
markpkessinger
(8,392 posts)The Solicitor argued both that it was a tax AND that even if it were not a tax, it would nevertheless be authorized under Congress' taxing authority. And btw, what "allowed" Justice Roberts to find the law constitutional was the Supreme Court's power of judicial review. Supreme Court justices, when considering issues of Constitutionality, are not bound by the arguments made by the parties.
From the transcript of oral arguments (p.44 ff., emphasis added)
GENERAL VERRILLI: Yes.
JUSTICE SOTOMAYOR: I have to look for a case that involves the issue of whether something denominated by Congress as a penalty was nevertheless treated as a tax, except in those situations where the code itself or the statute itself said treat the penalty as a tax. Do you know of any case where we've done that?
GENERAL VERRILLI: Well, I think I would point the Court to the License Tax Case, where it was -was denominated a fee and nontax, and the Court upheld it as an exercise of the taxing power, in a situation in which the structure of the law was very much the structure of this law, in that there was a separate stand-alone provision that set the predicate and then a separate provision in closing -
JUSTICE SCALIA: But fees, you know, license fees, fees for a hunting license, everybody knows those are taxes. I mean, I don't think there is as much of a difference between a fee and a tax as there is between a penalty and a tax.
GENERAL VERRILLI: And that, and -- and I think in terms of the tax part, I think it's useful to separate this into two questions. One is a question of characterization. Can this be characterized as a tax; and second, is it a constitutional exercise of the power?
With respect to the question of characterization, the -- this is -- in the Internal Revenue Code, it is administered by the IRS, it is paid on your Form 1040 on April 15th, I think -
JUSTICE GINSBURG: But yesterday you told me -- you listed a number of penalties that are enforced through the tax code that are not taxes and they are not penalties related to taxes.
GENERAL VERRILLI: They may still be exercise of the tax -- exercises of the taxing power, Justice Ginsburg, as -- as this is, and I think there isn't a case in which the Court has, to my mind, suggested anything that bears this many indicia of a tax can't be considered as an exercise of the taxing power. In fact, it seems to me the License Tax Cases point you in the opposite direction. And beyond that your -the -- it seems to me the right way to think about this question is whether it is capable of being understood as an exercise of the tax.
JUSTICE SCALIA: The President said it wasn't a tax, didn't he?
GENERAL VERRILLI: Well, Justice Scalia, what the -- two things about that, first, as it seems to me, what matters is what power Congress was exercising. And they were -- and I think it's clear that -- that the -- the -- they were exercising the tax power as well as -
JUSTICE SCALIA: You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power. I'm just addressing the first.
GENERAL VERRILLI: If the President said -
JUSTICE MSCALIA: Is it a tax or not a tax? The President didn't think it was.
GENERAL VERRILLI: The President said it wasn't a tax increase because it ought to be understood as an incentive to get people to have insurance. I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not.
JUSTICE GINSBURG: A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk -- risk pool before they need medical care, and so it will be successful. If it doesn't raise any revenue, if it gets people to buy the insurance, that's -- that's what this penalty is -- this penalty is designed to affect conduct.
The conduct is buy health protection, buy health insurance before you have a need for medical care. That's what the penalty is designed to do, not to raise revenue.
GENERAL VERRILLI: That -- that is true, Justice Ginsburg. This is also true of the marijuana tax that was withheld in Sanchez. That's commonly true of penalties under the Code. They do -- if they raise revenue, they are exercises of the taxing power, but their purpose is not to raise revenue. Their purpose is to discourage behavior. I mean, the -- the mortgage deduction works that way. When the mortgage deduction is -- it's clearly an exercise of the taxing power. When it's successful it raises less revenue for the Federal Government. It's still an exercise of the taxing power. So, I don't -
JUSTICE KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said this is not a tax, and the question is why should that be irrelevant?
GENERAL VERRILLI: I don't think that that's a fair characterization of the actions of Congress here, Justice Kagan. On the -- December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to39 on that proposition.
The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power. It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's -- not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.
CHIEF JUSTICE ROBERTS: Why didn't Congress call it a tax, then?
GENERAL VERRILLI: Well -
CHIEF JUSTICE ROBERTS: You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is -- in the Internal Revenue Code it is collected by the IRS on April 15th. I don't think this is a situation in which you can say -
CHIEF JUSTICE ROBERTS: Well, that's the reason. They thought it might be more effective if they called it a penalty.
zoechen
(93 posts)For the most part anyway.
The Solicitor General made three arguments, the last of which was the idea of this being upheld on the basis of congresses power of leving taxes.
You cannot escape the fact that it was the presidents representative in this proceeding that asserted that Congresses power of taxation is what won the day.
Be my guest and argue what you will, you can't spin what happened.
It's on paper.
David__77
(23,369 posts)It is something that must be paid to the government via the IRS. Sorry, but any reasonable person is going to consider that to be a tax. Defensively pretending it to be something else is silly and counterproductive.
soccer1
(343 posts)But it's not a tax increase for all American people to pay for those who don't buy insurance. The "tax" is a method for collecting the penalty imposed on those who won't purchase health insurance.
soccer1
(343 posts)penalty and the government can use it's taxing power to collect the penalty. If a person does not file an income tax return they would face a penalty. When the penalty is collected by the IRS it is not called a tax...it's called a penalty. The IRS is the "collection agency" for the federal govt. I'm a reasonable person and I don't see the penalty as any kind of tax.
unblock
(52,195 posts)cherokeeprogressive
(24,853 posts)lumberjack_jeff
(33,224 posts)kentuck
(111,078 posts)...that it is not a tax. {{ Breaking}}
spanone
(135,818 posts)and it's an honest victory.
MADem
(135,425 posts)And why would the Dems have to "accept it was a tax increase" when RMoney's OWN PEOPLE are saying it isn't?
I think it would be helpful if you go back to 2007 and start looking at ALL the footage of RMoney signing the healthcare bill and holding press availabilities and touting what he did in Massachusetts. Pay very close attention to all his talk about "free riders" and "personal responsibility" and so forth...
Your effort to snatch defeat from the jaws of a very fine and unanticipated victory won't fly.
Go do some Youtubing, you'll see.
NYC_SKP
(68,644 posts)It stands constitutional muster as analogous to a tax only in that it's collected by congressional legislation, but it's not a tax.
If you are eligible for support, you don't pay it, and if you opt into a health plan, you don't pay it.
You only pay it if you shirk your responsibility to play by the rules.
It was a victory, not even a pyrric one.
bigtree
(85,986 posts)then walk away. It's a foolish game played here by folks using a conservative argument, complete with all of the distortions and bullshit. I'm done. i couldn't care less now if they understand.
NYC_SKP
(68,644 posts)...when it is a penalty, a consequence, only to be applied to people with wealth and/or income who CHOOSE not to participate.
girl gone mad
(20,634 posts)Right, all of those evil "free-riders" who can't afford insurance but pay their own medical costs.
NYC_SKP
(68,644 posts)
From NPR:
CORNISH: For months, Democrats had expressly argued that the penalty charge under the new law was not a tax and it seems as though the court has described it as a tax, so what do you consider this?
PELOSI: What I call this is the free rider provision.
Call it what you will, but the fact is that some people who will not, even though they're younger and healthier and have some resources, decide they're invincible and they're not going to pay into a system.
So, when they get sick, then they think they can just dip into it and that makes it more expensive for other people. And so, in order to eliminate the free rider piece of this, there's a penalty to be paid if you don't want to participate. Call it what you will. What it does is lower cost for the American people and it's a fair way to go.
http://www.npr.org/2012/06/28/155936587/rep-pelosi-ted-kennedy-can-rest-in-peace#
http://www.breitbart.com/Big-Government/2012/06/28/Pelosi-Trashes-the-Uninsured-Free-Riders
