Obamacare

[Caesar]

Which type of tax does this fall under: direct (apportioned), excise, or income?

excise.

I have to go play COD.

http://msnbcmedia.msn.com/i/msnbc/Sections/NEWS/scotus_opinion_on_ACA_from_msnbc.com.pdf Link to the opinion. It's good reading if you are into this kind of thing.

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[Caesar]

Which type of tax does this fall under: direct (apportioned), excise, or income?

page 40 answers this.

 

[NickNaylor]

Your personal opinion on whether it was structured as a tax is not corroborated by the overwhelming evidence that it was - from the fact that the solicitor general argued that it was crafted as such to the ruling itself. You are a smart enough guy to know that you don't really have the knowledge to look at the tax code or the legislation well enough to make such a bold claim.

Then why would legislators specifically use the word "penalty" instead of tax throughout the entire bill? Why would legislators pander to constituents saying "penalty" instead of tax if they actually intended the penalty to be a tax?

The dissenters in the opinion talk about this at length. I suggest you check that out. It's not a "bold claim." It's actually extremely straight forward, and interpreting the penalty as a tax is the more circumlocuitous route. Again, look at the opinion and check out how Roberts' opinion is laughably nonsensical in this regard. The fact that the IRS collects the penalty doesn't make it a tax. Other than that fact you've yet to provide any support demonstrating why it's a tax.

(sent from my phone - please forgive typos)

 

[tiedyeddog]

Then why would legislators specifically use the word "penalty" instead of tax throughout the entire bill?

Politics, man. No politician likes to raise taxes and no one votes for people who raise taxes. Disguise it as something else = win.

I am not sure how intentional this was by the democrats tbh, but previous case law makes it evident that it doesn't matter what it's referred to by the legislature. A tax is a tax.

 

[UCFKnight]

If the SCOTUS says it's a permissible tax, it's a permissible tax. They don't take what Obama said in his stump speeches into account when they make rulings.

Oh wow. What about the people who actually wrote it? You're reasoning is completely off base, but I have no more energy this week to argue on these boards.

 

[UCFKnight]

Politics, man. No politician likes to raise taxes and no one votes for people who raise taxes.

That's not true at all.

 

[tiedyeddog]

That's not true at all.

Ok, sorry, maybe I should have dumbed that down for you.

It would have been bad PR for democrats to target the middle to lower classes with a "tax", in which the rich are insulated from because they have extra money to purchase health insurance in the first place and better jobs.

Find me a politician who has pushed for increased taxes for all, especially the lower to middle class.

 

[NickNaylor]

Politics, man. No politician likes to raise taxes and no one votes for people who raise taxes. Disguise it as something else = win.

I am not sure how intentional this was by the democrats tbh, but previous case law makes it evident that it doesn't matter what it's referred to by the legislature. A tax is a tax.

Exactly - but unfortunately I don't think political difficulties makes it acceptable for the legislature to side-step the constitution.

It does make it evident - but, again, the dissenters make a much stronger case than Roberts IMO in demonstrating that this penalty isn't a tax.

Just check out this flip-flopping. Here's Roberts' argument what discussing why the SCOTUS can hear the case in the first place (i.e., arguing that the penalty isn't a tax). Please forgive the crappy formatting - I didn't feel like going through and removing all of the citations.

The penalty for not complying with the Affordable Care Act’s individual mandate first becomes enforceable in 2014. The present challenge to the mandate thus seeks to restrain the penalty’s future collection. Amicus contends that the Internal Revenue Code treats the penalty as a tax, and that the Anti-Injunction Act therefore bars this suit.

The text of the pertinent statutes suggests otherwise. The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” §7421(a) (emphasis added). Congress, however, chose to describe the “hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”

Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).

Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.” See Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37 (1922); Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 779 (1994).

The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate. See Bailey v. George, 259 U. S. 16 (1922) (Anti-Injunction Act applies to “Child Labor Tax” struck down as exceeding Congress’s taxing power in Drexel Furniture).

Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act. For example, 26 U. S. C. §6671(a) provides that “any reference in this title to ‘tax’ imposed by this title shall be deemed also to refer to the penalties and liabilities provided by” subchapter 68B of the Internal Revenue Code. Penalties in subchapter 68B are thus treated as taxes under Title 26, which includes the Anti-Injunction Act. The individual mandate, however, is not in subchapter 68B of the Code. Nor does any other provision state that references to taxes in Title 26 shall also be “deemed” to apply to the individual mandate.

Amicus attempts to show that Congress did render the Anti-Injunction Act
applicable to the individual mandate, albeit by a more circuitous route. Section 5000A(g)(1) specifies that the penalty for not complying with the mandate “shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.” Assessable penalties in subchapter 68B, in turn, “shall be assessed and collected in the same manner as taxes.” §6671(a). According to amicus, by directing that the penalty be “assessed and collected in the same manner as taxes,” §5000A(g)(1) made the Anti-Injunction Act applicable to this penalty.

The Government disagrees. It argues that §5000A(g)(1) does not direct courts to apply the Anti-Injunction Act, because §5000A(g) is a directive only to the Secretary of the Treasury to use the same “ ‘methodology and procedures’ ” to collect the penalty that he uses to collect taxes. Brief for United States 32–33 (quoting Seven-Sky, 661 F. 3d, at 11).

We think the Government has the better reading. As it observes, “Assessment” and “Collection” are chapters of the Internal Revenue Code providing the Secretary authority to assess and collect taxes, and generally specifying the means by which he shall do so. See §6201 (assess- ment authority); §6301 (collection authority). Section 5000A(g)(1)’s command that the penalty be “assessed and collected in the same manner” as taxes is best read as referring to those chapters and giving the Secretary the same authority and guidance with respect to the penalty. That interpretation is consistent with the remainder of §5000A(g), which instructs the Secretary on the tools he may use to collect the penalty. See §5000A(g)(2)(A) (barring criminal prosecutions); §5000A(g)(2)(B) (prohibiting the Secretary from using notices of lien and levies). The Anti-Injunction Act, by contrast, says nothing about the procedures to be used in assessing and collecting taxes.

...

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this
suit, and we may proceed to the merits.

So, the penalty is most definitely not a tax, right? Wrong. He later then argues that it is a tax in order to legitimize the penalty under the taxing power:

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017. Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Patient Protection and Affordable Care Act (Apr. 30, 2010), in Selected CBO Publications Related to Health Care Legislation, 2009–2010, p. 71 (rev. 2010).

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.

Our precedent reflects this: In 1922, we decided two challenges to the “Child Labor Tax” on the same day. In the first, we held that a suit to enjoin collection of the so-called tax was barred by the Anti-Injunction Act. George, 259 U. S., at 20. Congress knew that suits to obstruct taxes had to await payment under the Anti-Injunction Act; Congress called the child labor tax a tax; Congress therefore intended the Anti-Injunction Act to apply. In the second case, however, we held that the same exaction, although labeled a tax, was not in fact authorized by Congress’s taxing power. Drexel Furniture, 259 U. S., at 38. That constitutional question was not controlled by Congress’s choice of label. We have similarly held that exactions not labeled taxes nonetheless were authorized by Congress’s power to tax. In the License Tax Cases, for example, we held that federal licenses to sell liquor and lottery tickets—for which the licensee had to pay a fee—could be sustained as exercises of the taxing power. 5 Wall., at 471. And in New York v. United States we upheld as a tax a “surcharge” on out-of- state nuclear waste shipments, a portion of which was paid to the Federal Treasury. 505 U. S., at 171. We thus ask whether the shared responsibility payment falls within Congress’s taxing power, “[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287, 294 (1935); cf. Quill Corp. v. North Dakota, 504 U. S. 298, 310 (1992) (“[M]agic words or labels” should not “disable an otherwise constitutional levy” (internal quotation marks omitted)); Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 363 (1941) (“In passing on the constitutionality of a tax law, we are concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it” (internal quotation marks omitted)); United States v. Sotelo, 436 U. S. 268, 275 (1978) (“That the funds due are referred to as a ‘penalty’ . . . does not alter their essential character as taxes”).

Our cases confirm this functional approach. For example, in Drexel Furniture, we focused on three practical characteristics of the so-called tax on employing child laborers that convinced us the “tax” was actually a penalty. First, the tax imposed an exceedingly heavy burden—10 percent of a company’s net income—on those who employed children, no matter how small their infraction. Second, it imposed that exaction only on those who knowingly employed underage laborers. Such scienter requirements are typical of punitive statutes, because Congress often wishes to punish only those who intentionally break the law. Third, this “tax” was enforced in part by the Department of Labor, an agency responsible for punishing violations of labor laws, not collecting revenue. 259 U. S., at 36–37; see also, e.g., Kurth Ranch, 511 U. S., at 780–782 (considering, inter alia, the amount of the exaction, and the fact that it was imposed for violation of a separate criminal law); Constantine, supra, at 295 (same).

The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.8 It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution. See §5000A(g)(2). The reasons the Court in Drexel Furniture held that what was called a “tax” there was a penalty support the conclusion that what is called a “penalty” here may be viewed as a tax.

None of this is to say that the payment is not intended to affect individual conduct. Although the payment will raise 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 on the Constitution of the United States §962, p. 434 (1833) (“the taxing power is often, very often, applied for other purposes, 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.

In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996); see also United States v. La Franca, 282 U. S. 568, 572 (1931) (“[A] penalty, as the word is here used, is an exaction imposed by statute as punishment for an unlawful act”). While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26, 2012).

Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. 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.

The plaintiffs contend that Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—requires reading §5000A as punishing unlawful conduct, even if that interpretation would render the law unconstitutional. We have rejected a similar argument before. In New York v. United States we examined a statute providing that “ ‘[e]ach State shall be responsible for providing . . . for the disposal of . . . low-level radioactive waste.’ ” 505 U. S., at 169 (quoting 42 U. S. C. §2021c(a)(1)(A)). A State that shipped its waste to another State was exposed to surcharges by the receiving State, a portion of which would be paid over to the Federal Government. And a State that did not adhere to the statutory scheme faced “[p]enalties for failure to comply,” including increases in the surcharge. §2021e(e)(2); New York, 505 U. S., at 152–153. New York urged us to read the statute as a federal command that the state legislature enact legislation to dispose of its waste, which would have violated the Constitution. To avoid that outcome, we interpreted the statute to impose only “a series of incentives” for the State to take responsibility for its waste. We then sustained the charge paid to the Federal Government as an exercise of the taxing power. Id., at 169–174. We see no insurmountable obstacle to a similar approach here.

Continuing in next post...

 

[NickNaylor]

And here's the dissenters' take on this whole shebang:

As far as §5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority,4 and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that "THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS'S TAXING POWER." Petitioners' Minimum Coverage Brief 52. The phrase "independently authorized" suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government's caption should have read was "ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX." It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

In answering that question we must, if "fairly possible," Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. " ‘ "[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . ." or judicially rewriting it.' " Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, "without doing violence to the fair meaning of the words used," Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: " ‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.' " United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a "tax" imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act "adopt the criteria of wrongdoing" and then imposes a monetary penalty as the "principal consequence on those who transgress its standard," it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).

So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled "Requirement to maintain minimum essential coverage." (Emphasis added.) It commands that every "applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage." Ibid. (emphasis added). And the immediately following provision states that, "f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty." §5000A(b) (emphasis added). And several of Congress' legislative "findings" with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. §18091(2)(A) ("The requirement regulates activity . . ."); §18091(2)(C) ("The requirement . . . will add millions of new consumers to the health insurance market . . ."); §18091(2)(D) ("The requirement achieves near-universal coverage"); §18091(2)(H) ("The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market"); §18091(3) ("[T]he Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation").

The Government and those who support its view on the tax point rely on New York v. United States, 505 U. S. 144, to justify reading "shall" to mean "may." The "shall" in that case was contained in an introductory provision—a recital that provided for no legal consequences—which said that "[e]ach State shall be responsible for providing . . . for the disposal of . . . low-level radioactive waste." 42 U. S. C. §2021c(a)(1)(A). The Court did not hold that "shall" could be construed to mean "may," but rather that this preliminary provision could not impose upon the operative provisions of the Act a mandate that they did not contain: "We . . . decline petitioners' invitation to con- strue §2021c(a)(1)(A), alone and in isolation, as a command to the States independent of the remainder of the Act." New York, 505 U. S., at 170. Our opinion then proceeded to "consider each [of the three operative provisions] in turn." Ibid. Here the mandate—the "shall"—is contained not in an inoperative preliminary recital, but in the dispositive operative provision itself. New York provides no support for reading it to be permissive. Quite separately, the fact that Congress (in its own words) "imposed . . . a penalty," 26 U. S. C. §5000A(b)(1), for failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: "[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act." Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: "If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute." 1 J. Kent, Commentaries on American Law 436 (1826).

We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as "license" (License Tax Cases, 5 Wall. 462 (1867)) or "surcharge" (New York v. United States, supra.). But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a "penalty." Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a "penalty."

That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of "applicable individual" subject to the minimum coverage requirement: Those with religious objections or who participate in a "health care sharing ministry," §5000A(d)(2); those who are "not lawfully present" in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: Those who cannot afford coverage, §5000A(e)(1); who earn too little income to require filing a tax return, §5000A(e)(2); who are members of an Indian tribe, §5000A(e)(3); who experience only short gaps in coverage, §5000A(e)(4); and who, in the judgment of the Secretary of Health and Human Services, "have suffered a hardship with respect to the capability to obtain coverage," §5000A(e)(5). If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.

In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor General assures us that "neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation," Petitioners' Minimum Coverage Brief 61, and that "f [those subject to the Act] pay the tax penalty, they're in compliance with the law," Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear. It is worth noting, moreover, that these assurances contradict the Government's position in related litigation. Shortly before the Affordable Care Act was passed, the Commonwealth of Virginia enacted Va. Code Ann. §38.2– 3430.1:1 (Lexis Supp. 2011), which states, "No resident of [the] Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services . . . ." In opposing Virginia's assertion of standing to challenge §5000A based on this statute, the Government said that "if the minimum coverage provision is unconstitutional, the [Virginia] statute is unnecessary, and if the minimum coverage provision is upheld, the state statute is void under the Supremacy Clause." Brief for Appellant in No. 11–1057 etc. (CA4), p. 29. But it would be void under the Supremacy Clause only if it was contradicted by a federal "require[ment] to obtain or maintain a policy of individual insurance coverage."

Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that "[t]he minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself," and that "[t]he [Internal Revenue Service (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code." Petitioners' Minimum Coverage Brief 53.
The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not. See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible pen- alty for failure to make campaign-finance disclosures); §5761(c) (IRS-collectible penalty for domestic sales of tobacco products labeled for export); §9707 (IRS-collectible penalty for failure to make required health-insurance premium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a "tax" was in fact a penalty. "f the concept of penalty means anything," we said, "it means punishment for an unlawful act or omission." Id., at 224. See also Lipke v. Lederer, 259 U. S. 557 (1922) (same). Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v), (f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scope—a feature that would be quite extraordinary for taxes.

The Government points out that "[t]he amount of the penalty will be calculated as a percentage of household income for federal income tax purposes, subject to a floor and [a] ca[p]," and that individuals who earn so little money that they "are not required to file income tax returns for the taxable year are not subject to the penalty" (though they are, as we discussed earlier, subject to the mandate). Petitioners' Minimum Coverage Brief 12, 53. But varying a penalty according to ability to pay is an utterly familiar practice. See, e.g., 33 U. S. C. §1319(d) (2006 ed., Supp. IV) ("In determining the amount of a civil penalty the court shall consider . . . the economic impact of the penalty on the violator"); see also 6 U. S. C. §488e(c); 7 U. S. C. §§7734(b)(2), 8313(b)(2); 12 U. S. C. §§1701q–1(d)(3), 1723i(c)(3), 1735f–14(c)(3), 1735f–15(d)(3), 4585(c)(2); 15 U. S. C. §§45(m)(1)(C), 77h–1(g)(3), 78u–2(d), 80a–9(d)(4), 80b–3(i)(4), 1681s(a)(2)(B), 1717a(b)(3), 1825(b)(1), 2615(a) (2)(B), 5408(b)(2); 33 U. S. C. §2716a(a).
The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a "severe penalty." Staples v. United States, 511 U. S. 600, 618 (1994). Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement.

And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act's "Revenue Provisions." In sum, "the terms of [the] act rende[r] it unavoidable," Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 "defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue." United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America's Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government's opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners' Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. Of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

By no means do I think that Obama is the anti-Christ or that the ACA is a terrible piece of legislation. Neither are true. That said, I think it's pretty plain which argument is stronger. IMO this ruling was a political one (i.e., to save the reputation of the Roberts Court), not a judicial/constitutional one.

 

[tiedyeddog]

And here's the dissenters' take on this whole shebang:



By no means do I think that Obama is the anti-Christ or that the ACA is a terrible piece of legislation. Neither are true. That said, I think it's pretty plain which argument is stronger. IMO this ruling was a political one (i.e., to save the reputation of the Roberts Court), not a judicial/constitutional one.

I agree this likely is a move to restore some public credibility to the SCOTUS. I understand your points but I don't agree about the decision being clearly unconstitutional, I think we'll just have to agree to disagree as gentlemen.

 

[NickNaylor]

I usually try to stay away from this nonsense, but I just can't resist myself since I actually read the opinion today.

I think I understand pretty well how the SCOTUS works - but I appreciate your demeaning remark. See my more detailed and contextual quotes above, along with a countering opinion (c'mon, citing the argument your supporting is a weak move when the same document contains an opposing argument that offers a different perspective).

I don't know if YOU understand how the SCOTUS works. Determining legislative intent is a pretty significant task of the SCOTUS. Determining whether the legislature intended for this to be a "tax" or "penalty" is a pretty critical part of determining whether or not the law is valid. While I would agree that using campaign-like speeches as evidence for intent is probably not the best idea, what else do you expect the court to do if the legislation itself is unclear? When case law, the law itself, and amicus briefs can't solve this problem, I think it's perfectly legitimate to examine what legislators were saying the intent of the law was when trying to figure out what the legislators intended for the law to be.

 

[UCFKnight]

http://www.amazon.com/Landmark-Insi...5&sr=8-1&keywords=health+care+bill+washington

read it, you're welcome.

Will do.

View attachment ImageUploadedBySDN Mobile1340997494.963908.jpg

Thanks for the recommendation.

 

[UCFKnight]

Ok, sorry, maybe I should have dumbed that down for you.

It would have been bad PR for democrats to target the middle to lower classes with a "tax", in which the rich are insulated from because they have extra money to purchase health insurance in the first place and better jobs.

Find me a politician who has pushed for increased taxes for all, especially the lower to middle class.

Oh man, don't get too butt hurt (had to use it because of the last Workaholics episode) that I said you were wrong. Why do people get so offended by such minute comments? Granted I was sort of trolling there and being way too literal. I'm sorry tiedyedog. Can we be nice and not jump straight to the 'dumb it down for you' comments next time? We both know we are both intelligent and can do much better. Thanks again for the book suggestion. So far it is a good read.

 

[tiedyeddog]

Oh man, don't get too butt hurt (had to use it because of the last Workaholics episode) that I said you were wrong. Why do people get so offended by such minute comments? Granted I was sort of trolling there and being way too literal. I'm sorry tiedyedog. Can we be nice and not jump straight to the 'dumb it down for you' comments next time? We both know we are both intelligent and can do much better. Thanks again for the book suggestion. So far it is a good read.

Sure, don't outright say something is wrong and make it seem like I have no idea what I am talking about and yeah, we can be friends.

That book seems somewhat unbiased, although some segments of the bill were still confusing to me after I read the book.

 

[DrStraggler]

"lol wut" to this entire thread.

 

[Intraleukin-6]

Will do.

View attachment 20259

Thanks for the recommendation.

UCF FTW! Bookstore fail though lol

 

[Parcheezy]

Hey, I'm new here so I used the search function and found this thread. My reasons for being a doctor are similar to the OP, therefore I have essentially the same questions he does regarding my path in Pre-Med.

I've read this : http://communities.washingtontimes....s-vs-obamacare-can-your-physician-simply-opt/

And http://communities.washingtontimes....-care-reform-organized-medicine-physician-pr/

which have heavily raised my concerns regarding my future career. I don't know what to do, I've wanted to be a doctor for most of my life but this is...concerning. I'd like to get some opinions regarding these articles and their content. Should I be concerned? What am I looking at in terms of projected loss of revenue and increasing start-up costs and maintenance for a practice? I'm very worried...

 

[Dave89]

Hey, I'm new here so I used the search function and found this thread. My reasons for being a doctor are similar to the OP, therefore I have essentially the same questions he does regarding my path in Pre-Med.

I've read this : http://communities.washingtontimes....s-vs-obamacare-can-your-physician-simply-opt/

And http://communities.washingtontimes....-care-reform-organized-medicine-physician-pr/

which have heavily raised my concerns regarding my future career. I don't know what to do, I've wanted to be a doctor for most of my life but this is...concerning. I'd like to get some opinions regarding these articles and their content. Should I be concerned? What am I looking at in terms of projected loss of revenue and increasing start-up costs and maintenance for a practice? I'm very worried...

How far along are you?

 

[Parcheezy]

I'm going to University in August. Already accepted, apart of learning communities for biology/nutrition etc.

 

[Dave89]

I'm going to University in August. Already accepted, apart of learning communities for biology/nutrition etc.

Ask physicians their opinions throughout undergrad. It's hard to gauge the effect of this as of yet, and you'll have a much better idea how the land lies in 2 years, when it's more relevant.

 

[Parcheezy]

Ask physicians their opinions throughout undergrad. It's hard to gauge the effect of this as of yet, and you'll have a much better idea how the land lies in 2 years, when it's more relevant.

I guess if my first two years are to get my core classes out of the way, I can wait since I can still change my career path at that point. Didn't think about it like that, but it's still of great concern to me since I really want to become a physician. I'll ask my optometrist on Monday what he thinks since me and him see eye to eye a lot.

 

[Dave89]

I guess if my first two years are to get my core classes out of the way, I can wait since I can still change my career path at that point. Didn't think about it like that, but it's still of great concern to me since I really want to become a physician. I'll ask my optometrist on Monday what he thinks since me and him see eye to eye a lot.

cute

 

[Temerit]

I don't know if YOU understand how the SCOTUS works. Determining legislative intent is a pretty significant task of the SCOTUS. Determining whether the legislature intended for this to be a "tax" or "penalty" is a pretty critical part of determining whether or not the law is valid. While I would agree that using campaign-like speeches as evidence for intent is probably not the best idea, what else do you expect the court to do if the legislation itself is unclear? When case law, the law itself, and amicus briefs can't solve this problem, I think it's perfectly legitimate to examine what legislators were saying the intent of the law was when trying to figure out what the legislators intended for the law to be.

It's a penalty that is constitutional and the SCOTUS determined that this penalty is constitutionally enforceable under congress' taxing powers. It's being called a tax now because it was legitimized under the taxing power of congress, but I mean if we're evaluating it against dictionary definitions, it's definitely a penalty.

 

[screamin eagle]

All I know is that I have not talked to one physician who likes obamacare and it does nothing to address Medicare (accept for taking ~500 billion dollars out of Medicare to pay for the new law) which is one of the main drivers of the national debt and a big problem since the program only reimburses hospitals around 50% (at least in my state).

 

[jonmadden]

Scary fact Australian budget for dental care to to citizens 600 mill, the US for medicaid 200 mill

Both numbers 2008, australia had a population of 22 mill to ours over 300 mill

They have immigrants and poor people too and they are paying more tax wise per person

 

[jonmadden]

Are not paying a heavier tax burden for that level of return from their government

Probably 150 mill of our population needs some level of subsidy for healthcare or fall into poverty range.

3x more for peoples teeth that for every aspect of a persons health who is a check a away from homeless

I dont think we can even say we have a government with that comparison

Aussie dollar was a little under US then but now its more than ours

 

[Ironmandoc]

Are not paying a heavier tax burden for that level of return from their government

Probably 150 mill of our population needs some level of subsidy for healthcare or fall into poverty range.

3x more for peoples teeth that for every aspect of a persons health who is a check a away from homeless

I dont think we can even say we have a government with that comparison

Aussie dollar was a little under US then but now its more than ours

Do you intentionally write like John Madden talks or is that just a tragic coincidence?

 

[davidbm95]

http://www.youtube.com/watch?v=egXurxdD7kE

this is all you need to know.

 

[Dave89]

http://www.youtube.com/watch?v=egXurxdD7kE

this is all you need to know.

No. The video you linked to merely explains the ruling on the mandate (on a very simplistic and superficial level).

It answers none of the OP's questions.

 

[belleshun08]

I hear a lot of talk about the negative impact ‘Obamacare’ will have on the American people. Unfortunately, the Obama Administration's Affordable Care Act would cost American households about half of what they would pay under Mitt Romney's proposed healthcare plan. That was the conclusion of a recent study.