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With Unlimited Taxing Authority, Who Needs the Commerce Clause?

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In a decision with so many moving parts that Rube Goldberg would be envious, the U.S. Supreme Court last week upheld Obamacare’s individual mandate. Writing for a majority of the Court, Chief Justice John Roberts concluded that the mandate is a tax rather than a penalty. As a tax it passes constitutional muster. As a penalty it does not.

Obamacare’s Medicaid expansion provision did not fare as well. The Court struck down as unconstitutional Congress’ attempt to force states to provide significantly increased coverage or lose all federal Medicaid funding. In the wake of the Medicaid ruling, states have begun to opt out of providing the additional coverage. The absence of state participation will necessarily impact the precarious payment formula for the costly health care package. The extent remains to be seen.

So far, most of the media attention surrounding the Court’s decision has centered on its political implications in this election year. Obamacare is an unpopular law made even more so last Thursday when the scarlet “T” was emblazoned on its virtual forehead. Recognizing the downside of having passed the single biggest tax increase in American history, the White House continues to mischaracterize the mandate as a penalty.

Beyond the persistent mislabeling, Obama’s primary argument in favor of his signature piece of legislation is a variation of Nancy Pelosi’s failed rallying cry. Back in 2010 the former speaker stated, “we’ll have to pass the health care bill so that you can find out what is in it”. Obama has turned that into “you’ll love it when you understand it”. Nancy’s spiel didn’t sell two years ago and the president’s won’t do any better now.

Recognizing the riskiness of the recast wait-and-see pitch, the administration has a third response to Obamacare critics. The legislation is not an issue in this election because Romney successfully pushed universal healthcare, including an individual mandate, as governor of Massachusetts. The theory here is that two wrongs cancel each other out as if neither happened so there’s nothing to talk about.

It is way past time to point out the fundamental flaw in Obama’s “Romney did it, too” dismissal. Namely, a state deciding to implement universal health care for its citizens is not the same thing as the federal government forcing it on all states and their citizens. It’s a little matter of states’ rights versus the overreaching of Congress in attempting to dictate the intricacies of life from afar. As the Medicaid expansion ruling points out, Congress is not in the business of being in our business in all places or at all times.

But, the most far-reaching effect of the Supreme Court’s Obamacare ruling is not the impact on this year’s election. The response in the voting booth this fall will prove much less important than the Court’s unlimited expansion of Congress’ taxing authority. In pronouncing the individual mandate a tax rather than a penalty, the Court’s majority argued speciously and in a marked departure from previous case law. The ruling did strike down the administration’s Commerce Clause claim of authority. But, that matters not at all when the power to tax is unrestrained.

Joined by Justices Ginsberg, Breyer, Sotomayor and Kagan, Chief Justice Roberts used a 90-year old, infrequently cited, case as his only stake in the ground. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), a child labor law decision, declared a congressionally defined tax to be a penalty and invalidated it. In changing the characterization of the tax to that of penalty, the Drexel Furniture case employed three factors: (1) whether the financial burden is heavy, (2) whether its imposition requires the intent to misbehave and (3) the nature of the government agency charged with enforcement.

Applying these considerations, the Obamacare Court found that the mandate is a lesser financial burden than purchasing health care insurance. It requires no bad intent on the part of those who must pay it. And, it is enforced by the IRS, not the FBI or other law enforcement agency. According to the Court’s majority, these circumstances, taken together, point to the mandate as being a tax rather than a penalty. But, according to the four dissenting justices, this conclusion is spurious, ignores decades of high court opinions and impermissibly denies congressional intent.

Justices Scalia, Kennedy, Thomas and Alito make compelling arguments as they strip away the logical veneer from the majority’s legal constructs. Citing dozens of cases and statutes, the dissenters point out that the amount of the levy is inconsequential as is the fact that it is income-based. While the requirement of intent does point to a penalty, its absence does not suggest a tax. And, finally, the IRS collects penalties as a routine part of its charter.

Even with the strength of this portion of the dissent’s rejoinder, there are two arguments of greater persuasive force against the mandate as a tax. The first is also found in the dissent. The other is mentioned, and dismissed, almost as an afterthought by the chief justice.

The dissent’s most profound counter argument is that the decision usurps the federal taxing authority reserved by the Constitution to Congress alone. Not only does Obamacare refer to the mandate as a penalty in eighteen separate places, Congress explicitly rejected the idea of it being a tax. An early draft of the legislation did label the mandate a tax. But, that characterization was changed to one of penalty in later versions and in the final version. With all of the horse trading that was required to barely pass the legislation, branding it a tax would have sounded the death knell.

So, the Court’s mandate-as-tax is not merely the strained interpretation of a statute in order to save it, which is permitted, it is an intrinsic rewrite of the statute, turning it into something other than Congress intended. As such, it amounts to judicial legislation, which is not permitted. And it means that the Court has morphed itself into the tax-levying branch of government, which also is not permitted.

Perhaps the most potent argument against the mandate ruling is the fact that the Court’s tax applies to acts of omission rather than commission. While the majority found this dichotomy fatal to the application of the Commerce Clause, it had no trouble decreeing it under Congress’s taxing authority.

At the end of the mandate discussion, Chief Justice Roberts touches upon the tax omission/commission conflict. He makes three feeble arguments for allowing Congress to tax acts of omission while placing no limitations on the type of omissions that may be taxed. The ruling is a stunning no-holds-barred grant of authority that permits Congress to compel personal behavior of any kind. Against that panorama of power, the Commerce Clause is but drab window dressing.

One can only hope that a future Supreme Court decision, like the election results this fall, will restore sanity to our federal branches of government.

See you on the left-side.

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About Sidney and Riley

  • Desert Rat

    what is supposed to be going on in that cartoon? It’s nonsensical.

  • http://www.lettersfromus.com/ Sidney and Riley

    What’s going on it supposed to be nonsensical although probably not in the way that you mean. The upper half of the comic is a representation of the Supreme Court Justices. The icons (labelled with the first initial of the last names) are situated according to the required seniority with the most senior justices on the bottom row. The letters along the bottom part of the comic are abbreviations of the pieces of the opinion. So, e.g., IM stands for Individual Mandate. The myriad of arrows between the justices and the letters represent the very confused nature of the ruling. In fact, many justices disagreed with each other on several of the issues. The 196 page opinion is one of the worst in recent years.

  • Glenn Contrarian

    About the Obamacare ruling – it means my sons will have access to quality health care, that the health insurance companies will not deny them care due to lifetime caps or because of preexisting conditions.

    But of course y’all on the Right thinks that’s communist or something.

  • http://www.lettersfromus.com/ Sidney and Riley

    We agree with you that people should have access to quality, affordable health care throughout their lives and not be denied because of pre-existing conditions. According to many polls, most people agree with that as well. Among those people, the difference between right, left and center is how to accomplish those goals.

    The issue we have with the Supreme Court’s ruling is not about universal health care coverage. It is strictly a disagreement with the unlimited taxing authority it grants to Congress. Based on this ruling Congress can force people to make the choices Congress wants or pay a tax. One critic used the example of forcing people to buy broccoli whether they wanted to or not. It’s kind of a silly example, but only kind of. It does point out the problem with the ruling.

  • Zingzing

    Tobacco and gas have taxes on them (beyond sales tax).

  • http://www.lettersfromus.com/ Sidney and Riley

    Yes, they do. The difference between a cigarette tax, for example, and the taxing authority the Supreme Court has just authorized is the difference between regulating behavior and forcing behavior. Some states tax the purchase of cigarettes and use part of the money for health care funding. Others simply tax a nasty habit in order to discourage it. Either way, it’s an action – the act of smoking – that’s being taxed. You choose to smoke, you get taxed.

    The Supreme Court ruling allows taxing someone to force them to act. Using the broccoli example, you don’t like broccoli so you don’t buy it. Congress decides its good for you and that you should buy it. So, you get taxed until you start buying broccoli. That’s an example of the problem with the ruling. It’s the difference between you choosing to do what you want to do and Congress making the choice for you.

  • http://cinemasentries.com El Bicho

    maybe Igor posted his explanation over at another site.

    It’s adorable how all these amateur legal scholars are enamored with the broccoli example that they are blinded to how obviously incomplete it is. It doesn’t take into account those who don’t want broccoli now then show up needing it and receiving though they can’t afford it, driving up the cost for the rest of us who knew we needed broccoli in the first place.

  • Clav

    Tobacco and gas have taxes on them (beyond sales tax).

    But no one is forcing you to buy them…

  • Glenn Contrarian

    But you are forced to buy car insurance in order to own a car. Of course, no one’s forcing you to have a car, but in most of the nation, owning a car is not really a choice. Try living out in the country without a car and you’ll see what I mean.

  • http://www.lunch.com/JSMaresca-Reviews-1-1.html Dr. Joseph S. Maresca

    The question now is whether or not Obamacare will allow you to use the Hill Burton Act free or significantly reduced health care cost as a replacement for actually purchasing a health insurance policy.

    Hill Burton requires filling out an application and qualified applicants get free or significantly reduced cost health care. The government still has 172 Obligated Hill Burton Facilities. The idea behind Hill Burton was to exchange forgiveness of the medical facility mortgage for free or significantly reduced health care costs to the poor. The program has worked for 66 years. It should be funded more significantly. We need to test in the Courts whether or not Hill Burton coverage for a family will suffice over purchasing a health insurance policy. If it does, then the question of a penalty is moot.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re comment #7, first, we agree that the broccoli example is kind of lame, but it’s also less emotional than the individual mandate so it’s used instead. The principle is that Congress should not have the power to force people to act in a way that Congress approves. Saying you can’t to do something (like murdering your neighbor) is qualitatively different than saying you must do something (like buying broccoli). The limitations on individual choice in the latter case are profound. In that regard, Supreme Court cases serve two purposes. The first is to decide the issue at hand. The second, and often more important, is their use as precedent for future decisions. The unlimited taxing authority aspect of the Obamacare decision is, therefore, very troublesome.

    The point about getting to eat broccoli only when we develop a taste for it – and not paying for it all along – is addressed by the four dissenting justices. They give several examples of how that could be handled without violating constitutional strictures. Here are two of them. The newcomers would have to pay higher premiums for a period of time. And/or the new comers would have to pay a surcharge as a buy-in of sorts to begin eating broccoli. There are other ways to accomplish the goal as well.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re comment #10, our understanding of Hill Burton is limited. It’s based on articles on the HHS website. But, it seems (contrary comments are solicited), that the people once covered by Hill Burton are those who today are included under both current Medicaid coverage and the Medicaid Expansion provisions of Obamacare. Those subject to the Individual Mandate are not eligible for Medicaid based on income. They make too much money.

  • Igor

    The ‘brocolli’ discussion is a red herring. As far as I know there is no law, real or pending, to force you to eat brocolli.

    It’s just an analogy (or simile, or metaphor, take your pick) which is invalid in both law and logic. The only way ANY analogy could work is if everyone agreed on (1) the emotional neutrality of the analogue, and (2) it’s applicability to the syllogism under consideration. Brocolli fails at both.

    I’m surprised that Scalia, a jurist once to be admired, volunteered this lame argument. Perhaps his estimation of the wit and perceptiveness of the public has sunk even lower, or perhaps he’s just getting senile.

  • http://www.lettersfromus.com/ Sidney and Riley

    In fairness to Justice Scalia, broccoli isn’t his analogy. But, it has been debated (individual mandate v. broccoli) in articles on the web for months. Just google: individual mandate + broccoli. The point of its use here is not to take a side in that debate. If we – the commenters – thought about it, we could come up with a better analogy.

    But, perhaps the point that you’re making – we don’t want to put words in your mouth – is that there is no good analogy meaning that the ruling is limited to the Obamacare facts and will not be broadly applied in future cases. Given the current composition of the Court, that’s a reasonable bet.

  • http://danmillerinpanama.wordpress.com Dan(Miller)

    re #13 — The point of the broccoli analogy is that the Congress could mandate its purchase or the purchase of anything else under its taxing powers. Were it to do so, because Courts look to the constitutionality of laws rather than to their soundness or desirability as policy, there would be no predicate for judicial review. As Chief Justice Roberts stated in his opinion,

    We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

    . . . .

    “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

    He is of course correct in that view as to the scope of judicial review. However, the decision appears to extend the power to tax purchases to the power to tax failures to purchase. To that end, the Roberts’ decision specifically cites a power to tax the non-purchase of gasoline as existing and as supportive of the ObamaCare mandate. As far as I know, the Congress had never previously taxed failures to purchase.

    I find that novel authority offensive now with both the Executive Branch and half of the Legislative Branch in the hands of Democrats. Do keep in mind that the same offensive authority will persist when the wicked Republicans have the same or even more pervasive power.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #15, we agree completely with the comments. But, we have a question for Mr. Miller. Given the fact that the Court had never before changed a Congressionally-imposed penalty to a tax (see the dissenting opinion) and given the fact that the Court relied only on the Drexel Furniture case for its three-pronged “test” to morph the individual mandate into a tax, do you think that the decision is a resulted-oriented expedient and therefore not likely to be broadly applied in the future?

    We think so for the above reasons and for another one. The individual mandate decision was really a 4-4-1. Four justices generally against, 4 generally in favor and 1 swing vote – Roberts. The sections of his opinion that you quote clearly state that he viewed this issue as a political one that should be decided in the voting booth. However, to get there, he agreed to the judicial usurpation of the legislative branch’s taxing authority (again, see dissenting opinion). The latter puts the Court squarely in the middle of the political process that Roberts claims to renounce. Given the internally inconsistent nature of his opinion, it does not seem that he intended it to have broad application.

  • http://danmillerinpanama.wordpress.com Dan(Miller)

    Re # 16, It was a result-oriented decision at least to the extent that Mr. Chief Justice Roberts had to struggle to find a way to uphold a mandate which he acknowledged was beyond the power of the Congress to enact pursuant to the Commerce Clause. I would have to search a bit for exactly what he said, but the substance was that if any basis, no matter how tenuous, can be found in the Constitution that differs from that on which the Congress relied — and indeed is one rejected by the Congress — we will rely on it out of respect for congressional authority.

    I think the Court’s majority looked too hard and found something not there. My analysis of the decision is here should you be interested. Will this precedent have broad application? That depends on what the Congress does. How high is too high for a tax? That does not appear to be a question the Roberts Court wants to tackle. How absurd is any other congressional enactment? Ditto. What happens if no part of the Constitution had previously been construed to permit the Congress to do something? Based on the ObamaCare decision, how far will the Court go in deference to the Congress? How much deference is too much deference?

    Over the years, precedents established by the Supreme Court have a tendency to grow rather than to shrink in potency and application. I fear that that will happen in the present context.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #17, we read the legal analysis in your article and, of course, concur except with the “hopeful aspect” given at the end – that Congress and future presidents will be better behaved so as to prevent the logical consequences of the Obamacare decision.

    Our hopeful aspect that is the decision goes the way of People v. Sirhan, 7 Cal.3d 710 (1972), wherein the California Supreme Court upheld Sirhan’s conviction for the assassination of Robert Kennedy. Politically speaking, there was absolutely no way the conviction was going to be overturned. But, to affirm it, the liberal Court had to make some very interesting fourth amendment interpretations. Suffice it to say, that case was not a favorite of the Court in later decisions. Stare decisis is not always what it’s cracked up to be. Hopefully.

  • http://danmillerinpanama.wordpress.com Dan(Miller)

    RE #18 — Thanks. However, I am not at all hopeful that future Congresses and Presidents will be better behaved. That’s why I said, with the word “may” in italics,

    The only hopeful aspect of the ObamaCare decision is that it may encourage greater wisdom in electing our CongressCritters and Presidents. I hate to end on a sour note, but how likely does that seem?

    Some Presidents and some CongressCritters will probably be better and some will probably be worse. However, laws once enacted tend to be extended, rather than to be restricted in scope and intrusiveness. Laws with significant delegations of authority to Federal agencies and departments are probably among the worst in that regard, and there are many of them.

  • troll

    …why do I get the feeling that under a different administration this whole mandate thing would be parsed as an heroic attempt to curb the massive free-rider problem?

  • http://danmillerinpanama.wordpress.com Dan(Miller)

    Re #20 — It might well be. Please see my Comment #17.

  • Glenn Contrarian

    Last I recall, the individual mandate was itself a measure to overcome the “massive free-rider problem”…and it was only when Obama bought off on it that the GOP – which invented it and had supported it for well over a decade – suddenly rejected it.

    But of course the GOP’s above such petty acts like rejecting their own policies if they think it would stop a Democratic president from succeeding, right?

  • Igor

    This contorted “Mandate” thing is a consequence of the USA Political System propping up our decrepit Potemkin “Private Healthcare System”, when it should be abandoned in favor of Single-Payer Universal healthcare, which assesses everyone more fairly through a given taxation system.

  • Glenn Contrarian

    “assesses everyone more fairly”???? You SOCIALIST! You COMMUNIST! How DARE you even begin to imply that there should be fairness in ANYthing in America! You know very well that Romney is filthy rich because he (like Trump and the Koch brothers) EARNED and DESERVE every penny of the inheritance they got from their dads!

  • Zingzing

    “But no one is forcing you to buy them…”

    You drive a car?

    But my real point is what’s the difference? If you don’t buy car insurance or health insurance, it costs someone else down the line… If you buy tobacco (sometimes) or gas (the roads, the environment, and gotta pay the gas company their tax write offs), it costs something somewhere down the line,

  • Zingzing

    But what’s the real line of division between right and wrong here, clavos? You know uninsured people cost the rest of us money. So if it is really a tax, which the GOP wouldn’t have said last week, but hey, we’re in a whole new political world now, what makes this “tax” so onerous? Because it makes people pay for something they don’t buy? It’s a strange thing, I’ll admit. But why the distinction? No one’s really going to make you pay if you don’t buy broccoli. So don’t bring that up. Real world things, please…

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #25 & 26, Clavos can respond with his view, but we’d also like to answer from the view of legal precedents. The issue is that once a rule of law is defined by the Court, it will be used in later decisions to uphold other (in this case) acts of congress that coerce people to act in the way that congress prefers. Historically, taxes are levied based on the value of goods and services purchased. You buy something, you pay a tax. The notion that you can be forced to pay a tax for not buying something turns the notion of taxing on its head.

    Let’s say you don’t own a home. You’re a renter instead. Congress decides that homeownership is in the best interests of the country – it stimulates the depressed construction industry, it lowers the cost of money due to greater demand, etc. So, Congress levies a “home” tax on people who don’t own them. That’s just an example. The problem with listing a lot of them is that Congress has never been given this authority before so how it will be used remains to be seen. But, the last thing we need is to give Congress more control over our daily lives. And this is unlimited control.

  • Arch Conservative

    Sidney, sooner or later you will come to the realization that most of the regular posters on this website are a lost cause. You must have better things to do than trying to explain something as simple as how Obamacare sets a dangerous precedent for the government to control more and more of our lives to these fools.

  • http://www.squidoo.com/lensmasters/IanMayfield Dr Dreadful

    The ACA is an absurdly inefficient, bureaucratic, Rube Goldberg-esque way of going about it but it does at least achieve the desired goal, which is to provide everyone with access to affordable health care.

    It’s roughly analogous to this TV remote control, which does its job of turning the TV on but does so in a way that’s infinitely less efficient than just about any other method we can conceive of.

    We shouldn’t fret too much, though. All new inventions are relatively inefficient to begin with. (We’ll gloss over here that universal health care actually isn’t a new invention and has been working perfectly well in dozens of countries for decades, but perish the thought that Americans should actually adopt a good idea from some foreigner.) But they are tweaked with and experimented with and improved over time until they work far better than their predecessors. Today’s cars, for example, operate thousands of times more efficiently than Benz’s early automobiles. (Except, again, here in the US, where for some reason having a car that operates with as much fuel inefficiency as possible is seen as a badge of pride by some people.) If you all don’t throw the baby out with the bathwater, you’ll eventually end up with a system that works a lot better and with less fiscal – and ideological – pain.

    Finally, a cheeky question for our taxophobic conservative friends: isn’t it funny how, although taxes have been around since we humans first started to organize ourselves into civilizations, the world has somehow, freakishly, managed not to end?

  • http://cinemasentries.com/ El Bicho

    “sooner or later you will come to the realization that most of the regular posters on this website are a lost cause.”

    well, that explains what set off the irony alarm when you consider the source

  • Igor

    The ACA is a confused mess because the republicans in congress steadfastly refused to provide any balancing initiatives (I suppose for fear of any kind of Obama success) and help while the ACA was under consideration. Odd, because most of the ACA comes from past republican ideas, even including Romneycare.

    The republicans shot themselves in the foot.

  • Zingzing

    Sidney, homeowners get tax breaks that renters don’t get, which amounts to the same thing. Of course, this new thing is only a “tax” now that someone phrased it that way. I’m not sure I like the idea, but time will only tell if lawmakers intend to use this precedent as you say they will. I don’t think it would be politically smart to do so.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #28 & 29, Arch, we believe in the substance of our blogs and post them for others to read so that we can engage in a meaningful exchange of ideas. Of course, we’ll get slammed by one liners from folks who aren’t interested in discourse. It comes with the territory. And if that’s all there was, you’re right, we’d have tons of better things to do. But, it isn’t.

    Dr Dreadful, we agree that your argument is the biggest practical argument in favor of Obamacare. And we’ve heard it before from our friend (yes, real ones) who believe that the warts will be removed over time. We disagree that it can be fixed and our disagreement with you and others goes right to the heart of the matter. Forget whether the individual mandate is a called a tax, a penalty, a fee, a surcharge or something else. It’s money for the insurance companies and big pharma to subsidize the additional coverage for pre-existing conditions among other things. That makes it a band-aid on a symptom of problem that government bureaucrats in hugely bloated government regulatory structure won’t solve. The whole health care payment system needs to be changed at its core. That’s the subject of another blog.

  • http://www.squidoo.com/lensmasters/IanMayfield Dr Dreadful

    The whole health care payment system needs to be changed at its core.

    Agreed, but that’s been tried many times before, always with strenuous resistance from the same quarters. What’s different now?

    I’d say that if Obama and the ACA have at least brought the true scale of the healthcare problem in America into the light of day and have got people to accept that it is a major problem and to start thinking and talking about it, then it’s still a landmark achievement even if Romney wins in November and Congress promptly repeals the whole thing.

  • http://www.lettersfromus.com/ Sidney and Riley

    We agree completely with your assessment that health care reform, regardless of the form it ultimately takes, will be Obama’s legacy. And deservedly so.

    Our hope, which may be ridiculously foolish, is that reform efforts stop building on the status quo.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #32, Zingzing, we agree that it wouldn’t be politically smart. But, intelligence has never been a qualification for office. We’ll have to wait and see, just as you say, and use the power of the voting booth which is pretty much all we’ve got.

  • Zedd

    Every BODY gets sick.

    Find the right analogy to make your point and then we’ll have a great discussion.

  • Glenn Contrarian

    S & R –

    Then what do you feel would be a real and practical solution? Single-payer, like myself and my fellow liberals support? The reasons that the individual mandate was chosen were that (1) the CBO scored it as essentially deficit-neutral or better whereas single-payer was not, and (2) the individual mandate was a strongly conservative idea (Heritage Foundation et al) and Obama had assumed they’d support their idea…but as soon as Obama agreed with the individual mandate plan, the conservatives turned against it en masse.

    So…do you have a better idea? We’ve heard all about “repeal and replace”, but Romney and company have thus far refused to define the “replace” part of the slogan.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #37, Everyone may get sick, but that fact played no role in the Court’s decision. Take a look at it. The second link in the blog is to the text of the Court’s opinion, including, as well, all of the dissenting opinions. It can be downloaded as pdf file. See pages 41 – 45 of the pdf file. They contain the Court’s opinion upholding the mandate as a tax. Roberts, for the majority, applied only three criteria – those stated in the blog. Nothing more. And none of them included the fact that anyone, let alone everyone, gets sick.

    So, our previous example of a “home” tax levied on renters applies. If Congress decides that homeownership is in the best interests of the country and levies a tax on renters to support the residential construction industry, the tax can pass constitutional muster. The money may go to the lending industry – banks and mortgage companies – to reduce the lending rates for those who buy homes. In fact, the Court doesn’t care whether the tax is in the best interests of the country. If the country doesn’t agree, the voting booth is the remedy.

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #38, Mr. Contrarian, we agree that repeal and replace, without an actual replacement, is sophistry. In fact, if there is to be a change it should be via a replacement.

    Since the blog wasn’t about repealing Obamacare, give us a couple of days to think about the replacement. We do agree with the goals of Obamacare, just not with the implementation. But, arguing against the implementation without a reasonable alternative makes for a hallow argument.

  • http://danmillerinpanama.wordpress.com Dan(Miller)

    Glen, re #38 — here’s my two cents worth. From a constitutional perspective, I have no objection to tax payer funded universal medical care. That was not enacted in 2009 (with Democrat control of both houses of the Congress and of the Executive Branch) because the tax payers who would have had to foot the bill were thought unlikely either to accept it or to reelect those who brought it upon them. It should not have been enacted for that reason, because the impact of the necessary additional taxes would have been devastating to the economy and because it has not worked well in other developed countries (e.g. Britain).

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #38, again. We did some research on better health care reforms than Obamacare. A day or two isn’t much time but there is a lot of information on the web. From our research to date, the single payer system that you prefer does get high marks from several quarters. However, we prefer Consumer-Driven Health Plans because we believe that, in the long run, they will provide better coverage at lower price points. That does assume proper implementation.

    The problems faced today by the Canadian single payer system, we believe, are unavoidable and difficult to solve permanently. Those problems include an aging population (which the U.S. faces as well) and a reduction in funding from Ottawa, leaving the Provinces with a greater financial burden. This will result in increasing the tax burden. It seems that the CDHP would do a better job of holding costs down.

  • Kyle

    Congress cannot tax individuals for inaction. Ie. the cigarette tax only affects you if you purchase cigarettes. Whereas, the “tax” mandate in the healthcare act penalizes someone for inaction. Recently, I was discussing this with a colleague who happens to be an attorney. His rebuttal to me was that if you fail to pay your yearly federal income tax you will be penalized by the IRS by the imposition of an additional tax. Therefore, he says, that this shows that the government has the power to tax someone for inaction. In this case, the inaction is not paying your taxes.

    Can anyone help me understand the difference between the tax levied on the failure to pay taxes and the “tax” in the healthcare legislation to be levied if an individual chooses to not buy health insurance?

  • http://www.lettersfromus.com/ Sidney and Riley

    Re #43, Kyle, we have an attorney in our pack although we don’t talk about it much. Who would? Anyway, we don’t believe that the IRS can tax the failure to pay taxes. The IRS can penalize the failure to pay – which includes two types of penalties: failure to file and failure to pay. The IRS can also charge interest on the failure pay. And, of course, the tax that wasn’t paid is still due.

    Please ask your attorney friend to give you the citation to the Internal Revenue Code section that permits taxing the failure to pay tax. Then please pass it along.

  • Igor

    42-S&R: do you have anything more than beliefs and assumptions?


    However, we prefer Consumer-Driven Health Plans because we believe that, in the long run, they will provide better coverage at lower price points. That does assume proper implementation.

  • http://www.lettersfromus.com/ Sidney and Riley

    Igor, it’s difficult to have anything more than beliefs and assumptions with legislation that is yet to be passed or implemented. The same is true today with most of Obamacare. It’s pretty much a wait-and-see. This is particularly true since much of the specifics are yet to be written by federal regulators. So, how that turns out, as of today, is based on assumptions.