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Thread: Official Gameday Thread: Mandate vs. America, Thursday 10 AM

  1. #81
    [QUOTE=doggin94it;4502888]The Final Count:

    Mandate unconstitutional under Commerce Clause:

    Roberts, Scalia, Thomas, Alito, Kennedy

    (Constitutional: Ginsburg, Breyer, Kagan, Sotomayor)

    Mandate Constitutional as Tax:

    Roberts, Ginsburg, Breyer, Kagan, Sotomayor

    (Unconstitutional: Scalia, Thomas, Alito, Kennedy)

    Medicaid Expansion Unconstitutional:

    Roberts, Scalia, Thomas, Alito, Kennedy, Kagan, Breyer

    (Constitutional: Ginsburg, Sotomayor).[/QUOTE]

    lol @ Ginsburg and Soto towing the party line...

  2. #82
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    Here's something for a few laughs in a dark moment:

    [url]http://www.foxnews.com/politics/2012/06/28/obama-on-whether-individual-mandate-is-tax-it-is-absolutely-not/[/url]

    ABC News Interview

    GEORGE STEPHANOPOULOS: ...during the campaign. Under this mandate, the government is forcing people to spend money, fining you if you don't. How is that not a tax?
    OBAMA: Well, hold on a second, George. Here - here's what's happening. You and I are both paying $900, on average - our families - in higher premiums because of uncompensated care. Now what I've said is that if you can't afford health insurance, you certainly shouldn't be punished for that.
    That's just piling on. If, on the other hand, we're giving tax credits, we've set up an exchange, you are now part of a big pool, we've driven down the costs, we've done everything we can and you actually can afford health insurance, but you've just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that's ...
    STEPHANOPOULOS: That may be, but it's still a tax increase.
    OBAMA: No. That's not true, George. The - for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.
    STEPHANOPOULOS: But it may be fair, it may be good public policy ...
    OBAMA: No, but - but, George, you - you can't just make up that language and decide that that's called a tax increase. Any ...
    STEPHANOPOULOS: Here's the ...
    OBAMA: What - what - if I - if I say that right now your premiums are going to be going up by 5 or 8 or 10 percent next year and you say well, that's not a tax increase; but, on the other hand, if I say that I don't want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then ...
    STEPHANOPOULOS: I - I don't think I'm making it up. Merriam Webster's Dictionary: Tax - "a charge, usually of money, imposed by authority on persons or property for public purposes."
    OBAMA: George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition. I mean what ...
    STEPHANOPOULOS: Well, no, but ...
    OBAMA: ... what you're saying is ...
    STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.
    OBAMA: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but ...
    [B]STEPHANOPOULOS: But you reject that it's a tax increase?
    OBAMA: I absolutely reject that notion.[/B]

  3. #83
    Hey Doggin,

    Just want to say thanks for your contribution and legal insight.

    As expected, the decision is a bit deeper than "upheld". My largest concern, that the commerce clause could be used to comple, against an individuals will, mandated commerce was in fact struck down.

    While the portion upheld, that the Federal Govt. via Congress does have the right and power to tax in order to compel and guide behavior, was upheld, and de facto is still a mandate of sorts, it's a different issue that a core Federal Power to compel activity. And it's a power we already knew existed and was Constitutional.

    The solution to behaviour-guiding-tax policy is clearly democracy. Vote.

  4. #84
    [QUOTE=Warfish;4502727]Just like in Football, old friend, it's always nice to be on the winning side, isn't it?

    No Wargarbl. Case has been made, and now it is what it is.[/QUOTE]

    Nah, TBH the whole healthcare system is a complete cluster **** which frustrates me beyond words.

    I dont in any way see this as a "solution."

  5. #85
    From the dissent, agreeing with Roberts' "constitutional/statutory" distinction:

    [QUOTE]Of course it can be both for statutory purposes, since Congress can define “tax” and “penalty” in its enactments any way it wishes[/QUOTE]

    Then argues it cannot be "fairly construed" as a tax:

    [QUOTE]In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.[/QUOTE]

    [QUOTE]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, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.” §5000A(b)(emphasis added).[/QUOTE]

    [QUOTE]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 dothe 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).[/QUOTE]

    This is a key point:

    [QUOTE]That §5000A imposes not a simple tax but a mandate to which a penalty is attached [B]is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate[/B]—[B]a distinction that would make no sense if the mandate were not a mandate. [/B]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). [B]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: [/B]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). [B]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.[/B][/QUOTE]

    I find this very convincing - and not sufficiently addressed in the Roberts opinion.

    [QUOTE]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, [B]and if the minimum coverage provision is upheld, the state statute is void under the Supremacy Clause[/B].” Brief for Appellant in No. 11–1057 etc. (CA4), p. 29. [B]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.[/B]”[/QUOTE]

    Nice point.

    [QUOTE]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.[/QUOTE]

  6. #86
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    [QUOTE=Warfish;4502949]Hey Doggin,

    Just want to say thanks for your contribution and legal insight.[/QUOTE]

    +1

    Thanks, dog

  7. #87
    [QUOTE=doggin94it;4502957]From the dissent, agreeing with Roberts' "constitutional/statutory" distinction:[/QUOTE]

    I am also mystified as to how a "mandate" can be turned into a tax penalty. Correct me if I'm wrong, but doesn't the majority opinion essentially define any fine or monetary penalty, where there can be no other consequence attached, as a tax issue? What are the possible consequences of this? Could this result in other instances of actions that were previously considered "unlawful", being considered merely a matter of tax policy?

    *edit* referring to this bit you posted

    [quote=Supreme Court]
    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.” . . . While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to doso 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. [/quote]

  8. #88

    President Obama

    [IMG]http://www.google.com/url?source=imglanding&ct=img&q=http://skreened.com/render-product/l/p/o/lpouxcfbonljedpfrqxs/democrats-kick-gop-ass.american-apparel-unisex-fitted-tee.silver.w760h760.jpg&sa=X&ei=JJ_sT5jLGMn06AHy8PDcBQ&ved=0CAkQ8wc&usg=AFQjCNHYFt9gN5G5rWi49rg99AuTDk8Gcg[/IMG]

  9. #89
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    doggin - so COngress can't force me to buy insurance, but they can tax me if I don't? Isn't that effectively the same, word games aside? :rolleyes:

  10. #90
    [QUOTE=Warfish;4502949]Hey Doggin,

    Just want to say thanks for your contribution and legal insight.[/quote]

    Thanks - I try.

    [QUOTE]
    As expected, the decision is a bit deeper than "upheld". My largest concern, that the commerce clause could be used to comple, against an individuals will, mandated commerce was in fact struck down.
    [/QUOTE]

    Yep. These decisions are always deeper than the headlines, which is why some of the Court bashing stuff - usually coming from people without legal backgrounds who have never read the opinions (Levin is an exception) - gets under my skin. If you read Roberts' opinion, you can tell he doesn't particularly like the mandate as a policy, too - but thinks he's stuck with it because it is Constitutional. I tend to agree with the dissenters on the tax issue, but these are issues on which bright legal minds can disagree in good faith. (I have less sympathy for the four who would have upheld the mandate under the commerce clause; that strikes me as completely absurd and an abdication of all limits on the Federal government)

    [quote]While the portion upheld, that the Federal Govt. via Congress does have the right and power to tax in order to compel and guide behavior, was upheld, and de facto is still a mandate of sorts, it's a different issue that a core Federal Power to compel activity. And it's a power we already knew existed and was Constitutional.

    The solution to behaviour-guiding-tax policy is clearly democracy. Vote.[/QUOTE]

    Yep. That's what it comes down to. And it makes the whole "trash the IRS/tax code, replace it with something simpler" argument that much more appealing.

  11. #91
    [QUOTE=quantum;4502985]doggin - so COngress can't force me to buy insurance, but they can tax me if I don't? Isn't that effectively the same, word games aside? :rolleyes:[/QUOTE]

    Yes and no. It is the same in effect, but not in what its impact will be in future cases. And from this point forward, it will be politically impossible to deny that any mandate is a tax increase . . . which is something, at least.

  12. #92
    [QUOTE=Axil;4502974]I am also mystified as to how a "mandate" can be turned into a tax penalty. Correct me if I'm wrong, but doesn't the majority opinion essentially define any fine or monetary penalty, where there can be no other consequence attached, as a tax issue? What are the possible consequences of this? Could this result in other instances of actions that were previously considered "unlawful", being considered merely a matter of tax policy?

    *edit* referring to this bit you posted[/QUOTE]

    Yes. That was my reading as well. After reading all of the opinions, the dissent's view on the tax issue strikes me as the best supported one. The argument about exemptions is the real kicker; it makes no sense to exempt some people from the mandate and others from the penalty if all it is is a tax.

  13. #93
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    [QUOTE=doggin94it;4502989]Yes and no. It is the same in effect, but not in what its impact will be in future cases. And from this point forward, it will be politically impossible to deny that any mandate is a tax increase . . . which is something, at least.[/QUOTE]

    ok . where does that leave the exemptions? Can someone sue that they didn't get an exemption?

    (btw - thx for legalese translations) :D

  14. #94
    [QUOTE=doggin94it;4502996]Yes. That was my reading as well. After reading all of the opinions, the dissent's view on the tax issue strikes me as the best supported one. [B]The argument about exemptions is the real kicker; it makes no sense to exempt some people from the mandate and others from the penalty if all it is is a tax[/B].[/QUOTE]

    The strength of this point eludes me. It makes sense to exclude from the tax/penalty persons who don't file tax returns, can't afford coverage, etc. In fact, the inclusion of people who don't file tax returns signifies that it is a tax.

    I don't see how excluding some people from being subject to the mandate, and others from suffering the consequences of not complying with the mandate, bears on whether or not it is a tax.

  15. #95
    [QUOTE=Warfish;4502949]
    Just want to say thanks for your contribution and legal insight.[/QUOTE]
    2nded.

    Thanks Doggin.

  16. #96
    [QUOTE=JetPotato;4502926]Here's something for a few laughs in a dark moment:

    [url]http://www.foxnews.com/politics/2012/06/28/obama-on-whether-individual-mandate-is-tax-it-is-absolutely-not/[/url]

    ABC News Interview

    GEORGE STEPHANOPOULOS: ...during the campaign. Under this mandate, the government is forcing people to spend money, fining you if you don't. How is that not a tax?
    OBAMA: Well, hold on a second, George. Here - here's what's happening. You and I are both paying $900, on average - our families - in higher premiums because of uncompensated care. Now what I've said is that if you can't afford health insurance, you certainly shouldn't be punished for that.
    That's just piling on. If, on the other hand, we're giving tax credits, we've set up an exchange, you are now part of a big pool, we've driven down the costs, we've done everything we can and you actually can afford health insurance, but you've just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that's ...
    STEPHANOPOULOS: That may be, but it's still a tax increase.
    OBAMA: No. That's not true, George. The - for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.
    STEPHANOPOULOS: But it may be fair, it may be good public policy ...
    OBAMA: No, but - but, George, you - you can't just make up that language and decide that that's called a tax increase. Any ...
    STEPHANOPOULOS: Here's the ...
    OBAMA: What - what - if I - if I say that right now your premiums are going to be going up by 5 or 8 or 10 percent next year and you say well, that's not a tax increase; but, on the other hand, if I say that I don't want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then ...
    STEPHANOPOULOS: I - I don't think I'm making it up. Merriam Webster's Dictionary: Tax - "a charge, usually of money, imposed by authority on persons or property for public purposes."
    OBAMA: George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition. I mean what ...
    STEPHANOPOULOS: Well, no, but ...
    OBAMA: ... what you're saying is ...
    STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.
    OBAMA: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but ...
    [B]STEPHANOPOULOS: But you reject that it's a tax increase?
    OBAMA: I absolutely reject that notion.[/B][/QUOTE]

    There isn't a big enough facepalm out there for this dolt...

  17. #97
    Me, I'm cancelling my heath insurance.
    Agent, But why?
    Me, because it's $550.00 dollars a month.
    Agent, But it's a great policy.
    Me, I'm going to pay the $650.00 penalty.
    6,600.00 Vs 650.00

  18. #98
    Has any Media Person asked the President as yet about the ruling, specificly that Obama swore repeatedly that Obamcare was not a tax, but the mandate only survived because it is, in fact, a tax (not a commerce clause issue)?

    What was his answer? Surely he was asked by now.

  19. #99
    [QUOTE=Warfish;4503054]Has any Media Person asked the President as yet about the ruling, specificly that Obama swore repeatedly that Obamcare was not a tax, but the mandate only survived because it is, in fact, a tax (not a commerce clause issue)?

    What was his answer? Surely he was asked by now.[/QUOTE]

    Stephanopolous asked him. See JP's post...

  20. #100
    [QUOTE=jpoppy7;4503032]The strength of this point eludes me. It makes sense to exclude from the tax/penalty persons who don't file tax returns, can't afford coverage, etc. In fact, the inclusion of people who don't file tax returns signifies that it is a tax.

    I don't see how excluding some people from being subject to the mandate, and others from suffering the consequences of not complying with the mandate, bears on whether or not it is a tax.[/QUOTE]

    Think it through. The argument is that the "mandate" [I][B]is[/B][/I] simply a tax; you are taxed X (the penalty), unless you do Y (obtain health insurance), in which case you don't have to pay the tax.

    Now, you want to exempt some people from this scheme (not a pejorative; just "statutory scheme"). How do you do it? You say "People in categories ABC are exempt from tax X".

    But you don't say "People in categories ABC don't have to do Y"

    Why not? Because if the mandate is conceptualized as a tax, [B]NOBODY [/B]"has to do Y." There is no obligation for anyone to be "exempted" from; the only thing you can be exempted from is the tax itself.

    But that's not the way the statute was written. The statute exempts people from the obligation directly, then eliminates, for certain other classes of people, the penalty for failure to comply with the obligation.

    That demonstrates that the obligation itself has independent existence, and is in fact an [I][B]obligation[/B][/I], not merely "something you can do to avoid a tax."

    And that means that construing the mandate penalty as a tax requires ignoring the actual statutory language - which is the limit of the interpretive doctrine that requires statutes be construed as constitutional if at all possible.

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