Obamacare punishments as a tax

Thanks to Todd, who helps me with the technical side of this blog, for stepping in with the news emergencies while I was away.  You’ve discussed how the Supreme Court upheld Obamacare in its insurance purchase mandate.  Litigation on other Obamacare issues is getting under way.  (There are now 23 lawsuits against the contraception and abortifacient mandate.)

What do you think about conservative Chief Justice Robert putting the best construction on Obamacare by construing its penalties as a tax?  The reasoning was that people who refuse to buy health insurance will face a penalty, but it is being collected not by a court, as with a fine, but by the Internal Revenue Service.  Therefore, it is as if a tax has been imposed, which you can get out of if you buy health insurance.

The bill itself never calls the penalties a tax, nor did its authors or President Obama himself (who specifically said it was not a tax).

Is this logical?  Is this a proper function of a court opinion, to construe a bill despite its wording so that it can pass constitutional muster?

Some people are praising Justice Robert for his Solomonic compromise.  Some conservatives are saying that at least he ruled against the overly-broad application of the Commerce Clause, which can subject just about everything to government supervision since just about everything has economic implications.  This was, in fact, the basis of the administration’s defense of Obamacare, that Congress can make laws regarding interstate commerce.  The court ruled that forcing people to buy something is not commerce, as such.  But since that argument was found specious, Justice Robert kindly supplied an argument of his own that he could accept, even though the administration’s lawyers didn’t make it.   Some Republicans are saying that, at least, defining Obamacare as a tax can allow them to score political points by attacking President Obama and the Democrats as having raised taxes.

But this strikes me as a very dangerous ruling.  What other behavior could the Executive Branch require using the tax code to enforce fines apart from the safeguards of the Judicial Branch?  Could General Motors get bailed out by imposing a tax on everyone who does not buy a Chevy?

Also, does anyone know whether the Affordable Health Care Act was initiated in the House of Representatives, rather than the Senate?  Tax bills have to begin in the House.  Maybe this bill did, coincidentally, have that origin, even though it was never presented as a tax bill.  If not, since the Supreme Court declared it a tax bill, I’d think it would have to have been.

At any rate, this strikes me as a crisis not only with the Constitution–with the executive, legislative, and judicial branches all mixed up and infringing on each other–but with language itself, creating new meanings (“tax”) for existing words (“penalty”).

The Wall Street Journal: A Vast New Taxing Power – WSJ.com.

And the ruling on the health care law is…

Today, the Supreme Court will announce its decision on the 2010 health care bill. According to the official schedule, the ruling won’t have occurred by the time this post goes live — and it certainly hasn’t happened as I actually write this post on Wednesday night — so I don’t have a lot to say about the decision right now. But presumably you all will, as events unfold.

If you’re reading this before the decision has been announced, you can read SCOTUSblog’s helpful summary of what exactly we’re waiting for. Law junkies can also follow SCOTUSblog’s live coverage of the event throughout the day – they’ve even created a backup site in case their main site gets flooded with viewers.

So, did the Supreme Court get it right?

The right to lie about your accomplishments?

Though easily overlooked in all the discussion about the health care decision, the Supreme Court is announcing its decision in other cases today, as well. Perhaps most interesting is United States v. Alvarez, in which the issue is (as summarized by SCOTUSblog):

Whether a federal law that makes it a crime to lie about receiving military medals or honors violates the First Amendment’s guarantee of the right to free speech.

I assume we all agree that it is morally wrong for a person to lie about what honors they have received. The question is: should this moral failing also be criminalized? And, perhaps an even more important question is: why or why not? What criteria must a moral failing meet in order to merit criminalization?

Presidential lawlessness

Charles Krauthhammer on how President Obama is acting lawlessly, doing something that he himself earlier said would be unconstitutional:

In late 2010, he asked Congress to pass the Dream Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.

When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. “Now, I know some people want me to bypass Congress and change the laws on my own. . . . But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

That was then. Now he’s gone and done it anyway. It’s obvious why. The election approaches and his margin is slipping. He needs a big Hispanic vote and this is the perfect pander. After all, who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress’s exclusive Article I power to legislate.

With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. . . .

Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law.

It is shameful that congressional Democrats are applauding such a brazen end run. Of course it’s smart politics. It divides Republicans, rallies the Hispanic vote and preempts Marco Rubio’s attempt to hammer out an acceptable legislative compromise. Very clever. But, by Obama’s own admission, it is naked lawlessness.

via Charles Krauthammer: Obama’s amnesty-by-fiat — naked lawlessness – The Washington Post.

Romney’s Vice-Presidential pick?

If we are going to do our traditional “guess the vice-president” game, we’d better hurry, since, reportedly, Mitt Romney will announce his choice before the Republican convention.

It seems to me that the conventional wisdom that the vice president doesn’t matter is wrong on several levels.  The person who holds that office has assumed the presidency quite often, not just when the president dies in office but as the heir apparent as the next party nominee.  In light of that, the casual way presidential nominees have tended to pick their running-mates seems to me to be unconscionable.  And if the office itself is “not worth a warm bucket of spit,” as one statesman described it, that is due, in part, to few of the office holders taking advantage of its potential.  The president of the Senate–that is, the person who presides over the deliberations and who can break a tie vote–could be a powerful position, especially when the body is closely divided as will probably be the case after this election.  I think, at the very least, that the conventions should nominate and elect the vice presidential candidates.

Back to our game:  In addition to guessing who Romney’s running-mate will be, I’d like to hear who you would like it to be.  That is, who would make you feel better about voting for the Romney ticket?

Amnesty and the economy

From Victor Davis Hanson:

Economically, why would we formalize nearly a million new legally authorized workers when unemployment is approaching its 41st consecutive month over 8 percent — especially when Democrats used to label 5.4 percent unemployment as a “jobless recovery”? Here in California, the slowing of illegal immigration, due mostly to the fence and tough times, has led to steep wage hikes for entry-level and farm labor, and given a little more clout to Americans in so-called unskilled-labor fields. In other words, it really is true that the real beneficiaries of border enforcement are low-paid Hispanic-Americans and African-Americans who become more valued when they are not competing with virtually unlimited numbers of illegal-alien workers.

via Are We in Revolutionary Times? – By Victor Davis Hanson – The Corner – National Review Online.


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