Chief Justice Roberts saves Obamacare!

[Ben Kenobi]

So it doesn't count as funding the death penalty when you're bartering with your roommate for items that help fund the death penalty? You're basically paying him to be your scapegoat.

Not at all. It's exactly like having Christians serving muslims at a fast food place on Friday, Muslims serving Jews on Saturday and Jews serving Christians on Sunday. This is what liberty is all about.

Why should I require others who do not agree with my religious beliefs to live like I do?

Hell, why not barter for condoms while you're at it?

What use would I have for them? Or are you saying that showering with soap is contrary to the Christian faith?

[loinburger]

Not at all. It's exactly like having Christians serving muslims at a fast food place on Friday, Muslims serving Jews on Saturday and Jews serving Christians on Sunday. This is what liberty is all about.

Yes, that's exactly like paying your roommate to fund the death penalty in your stead.

Rather than engage in tax evasion, why not just pay your roommate to pay your condom-funding federal income taxes? So long as he writes the check you're not committing a sin.

[Ben Kenobi]

Rather than engage in tax evasion, why not just pay your roommate to pay your condom-funding federal income taxes? So long as he writes the check you're not committing a sin.

If enough people refuse to pay the obamacare fine then it will go away.

[loinburger]

So you're willing to put in the effort to combat Obamacare but you're not willing to put in a similar effort to combat the death penalty. How many lethal injections form the moral equivalent of one condom use?

[Imran Siddiqui]

for Ben: That worked so well in getting rid of the income tax.

[loinburger]

I encourage him to go to prison for tax evasion. It'll be more effective than a ban.

[giblets]

If enough people refuse to pay the obamacare fine then it will go away.

Yeah, good luck solving that coordination problem.

[Kuciwalker]

I believe the reasoning is that Anti-Injunction Act analysis is to get to the merits of the case. So on first glance, since the Administration and Congress don't call it a tax, it doesn't fall under it. But when you get to the merits, you realize that regardless of what they call it, it's basically a tax. At least that's how I see Roberts' ruling making the distinction.

No, that wasn't Roberts' argument. The AIA is a creation of Congress. It is an act passed specifically to limit the ability to sue to enjoin enforcement of other acts of Congress. Therefore the relevant definition of "tax" is "anything that Congress calls a tax". Congress could also have called it a tax but also said "by the way, the AIA doesn't apply to this" and lo and behold, the AIA wouldn't have applied.

By contrast, Congress doesn't get to define what "tax" means for the purpose of Article 1 Section 8. They cannot write a law saying "no one may criticize the President" and then call that a tax; even something that looks somewhat like a tax may be a non-tax if it more closely resembles a punitive fine. The individual mandate closely resembles a tax in many ways (enumerated by Roberts) and so is a tax (for Constitutional purposes) by virtue of having the form of one.

[Kuciwalker]

It wasn't just advertising; Congress never referred to the mandate penalty as a "tax" in the entirety of the PPACA, and the Solicitor General actually argued that it both was (with regards to the individual mandate) and wasn't (with regards to the Anti-Injunction Act) a tax at oral arguments. Roberts basically had to invent a new test that allowed him to treat the penalty as a tax (but not one for Anti-Injunction Act purposes!) even though Congress didn't agree that it was one. It's a very clever loophole.

Note that Roberts' argument in the opinion was, essentially, the argument given by the Solicitor General.

[Kuciwalker]

I'm curious why it isn't a tax for the purposes of the Anti-Injunction Act but suddenly becomes a tax for the purposes of judging its legality.

See #143. In the first part it's more important how Congress styles the provision; in the second what matters is its actual form.

[Wiglaf]

The individual mandate closely resembles a tax in many ways (enumerated by Roberts) and so is a tax (for Constitutional purposes) by virtue of having the form of one.

Bull****.

As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or – as in the case of the individual mandate – an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.

In September 2009, President Obama himself noted that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right….

Even if the individual mandate does somehow qualify as a tax, it is not one of the types of taxes that Congress is authorized to impose. The Constitution gives Congress the power to enact several types of taxes: Excise taxes, duties and imposts, income taxes, and “direct taxes” that must be apportioned among the states in proportion to population.

No one, including the federal government, claims that the individual mandate is a duty or an impost. The individual mandate is not an income tax because an income tax must target some “accession to wealth,” in the words of Commissioner of Internal Revenue v. Glenshaw Glass Co., the leading Supreme Court case on the subject. The fine imposed by the mandate does not target any accession to wealth or flow of income. It simply forces individuals to pay a penalty if they disobey the federal government’s regulatory requirement. The fact that low-income individuals are exempted does not change this analysis. A fine for jaywalking would not become an income tax if low-income individuals were exempted from it….

It is even more implausible to suggest that the mandate is an excise tax. Excise taxes apply to economic transactions or the use of property of some kind. For example, a tax on the sale of alcoholic beverages qualifies as an excise. The individual mandate does not tax any kind of activity, use of property or economic transaction….
If the mandate is not a tariff, impost, income tax, or excise tax, it is either a direct tax or no tax at all. And if it is a direct tax, it would be an unconstitutional one, because it is not apportioned among the states in proportion to population as the Constitution requires.

...

[W]e 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 itis 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 thatdeserves more thoughtful consideration than the lick-anda-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 isan exercise of the tax power. And once respondents raisedthe issue, the Government devoted a mere 21 lines of its reply brief to the issue….

[SlowwHand]

Semantics. Bottom-line is, if you want Socialism, go to France or Canada.

[Wiglaf]

If you think the difference between a tax and a penalty is semantics, please re-read the definition I just posted. Thanks.

[SlowwHand]

My point being that they can call it what they want, but in the end it costs the people, at the government's mandate.

[Wiglaf]

Okay.