Obamacare

If the Mandate Is a Penalty and Not a Tax, Then Let's Codify the Distinction

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So if the White House is going to continue to insist that the mandate is not a tax but a penalty, despite the Supreme Court's ruling that the mandate is only constitutionally viable as a tax, then how about we resolve this issue formally, and settle things once and for all? Writing at The Volokh Conspiracy, David Bernstein has a clever idea for how that might be accomplished:

I'd schedule a new vote in the House on the individual mandate, but replace the "penalty language" with language specifically acknowledging that the "penalty" is actually a tax. If the Democrats vote "aye," they've acknowledged breaking the Obama pledge not to raise taxes on the middle class. If the Democrats–specifically those who already voted for the mandate–vote "nay", what becomes of the tax argument in future litigation? Seems to me that Roberts was only able to argue that the mandate is a tax because no one [officially, by Congressional vote] specifically said it wasn't. At least it would look very peculiar that the Court upheld the law on a theory that Congressional supporters of the law refuse to adopt.

If the White House is so certain that the mandate is not a tax but a penalty, then administration officials shouldn't mind other Democrats saying so formally and codifying this distinction into the law.

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  1. saying so formally and codifying this distinction into the law

    Don’t think you’re going to catch them with that little trap. They’re too wily to be caught up in that.

  2. Roberts said it was functionally a tax; I’m not sure how much language matters to him.

    1. I agree. But it would really humiliate Roberts and show his decision to be the joke that it is. He would have to come back and say “no it is a tax” even after Congress specifically said it was a penalty.

      1. Seeing as his ruling explicitly said it doesn’t matter what Congress calls the law, somehow I doubt he’d care.

      2. Here’s a question I’ve been hearing on talk radio. The federal government is allowed by the Constitution to levy excise taxes, direct taxes, and income taxes. A tax on “those not purchasing health insurance” appears to be none of these things. So how is it constitutional?

        1. Is it not a direct tax?

          1. Except that the only kind allowed in the Constitution is one that is “apportioned,” which these taxes are not:

            “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.”

            1. Covered by the 16th Amendment. This can be construed on a tax on people making income over a certain amount, if they don’t make a compensating purchase of the “tax-shelter” health care coverage. Have you LOOKED at the 16th Amendment, and the broad taxation authority it confers? Coupled with Roberts’ rationalizations, it could be the “Commerce Clause”-style gateway to government growth for the 21st century. We need to repeal it in the worst possible way, now.

              1. xx “on a tax” should be “AS a tax.” Sorry.

      3. But it would really humiliate Roberts and show his decision to be the joke that it is. He would have to come back and say “no it is a tax” even after Congress specifically said it was a penalty.

        I’m pretty sure that Congress already specifically and definitively said that it was a penalty and not a tax by call it such in the text of the law ( you know the thing that Roberts was supposed to be ruling on) dozens of times.

        After ignoring that and all the supporting evidence there is no reason to believe that anything would change Roberts mind.

        Hell, there’s no reason to believe that Roberts actually believes his own bullshit opinion.

    2. Didn’t the congress that enacted the law specifically remove the language describing the penalty as a tax during the debate?

      If the majority ignored that, then I’m not sure how Congress repeatign the exercise is going to make a difference.

  3. I like this idea. Let’s get the critters to say on record that it’s a tax. Joe Six-Pack may not know much about Commerce Clauses and Taxing Powers, but he gets the idea that it’s slimy to reverse your position simply to win.

  4. It’s a tax and it’s not a tax. Pure doublethink.

    1. Your attitude is doubleplusungood, comrade.

      1. It’s doubleplusgood if “pure doublethink” is used as praise.

        Though the best doublethink would be phrased thusly:

        “It’s a tax … it’s not a tax. I never said it was a tax.”

        If used scornfully, Room 101 awaits.

    2. Yin AND Yang, Matter AND Anti-Matter, the Alpha AND the PWNDmega, the Father, Son AND Holy Ghost – it is truly a great thing

      1. It’s a floor wax!
        It’s a dessert topping!
        It’s a floor wax AND a dessert topping!

  5. Jay Carney’s head will explode the first time he has to take questions after a congressional vote on the mandate.

    1. Jay Carney’s next announcement is going to be that he will no longer take questions during press conferences.

  6. Dude seems to know what tiem of day it is wow.

    http://www.Mostly-Anon.tk

    1. I’m trying to figure out if this is Anonbot, or a very clever spoof. “Mostly-Anon”?

        1. I’m sooo not clicking on that link.

    2. McLovin, anonbot? Are you taking pick-up tips from McLovin?

  7. How about if, instead, the GOP and their “fusionist” Libertarian lickspittles pass a resultion that says the following:

    “We Are Drowning in a Sea of Our Own ButtHurt Tears.”

    1. Fuck off Mary. Isn’t it about time for your family to get another involuntary confinment order? You obviously haven’t been taking your meds and are hitting the bath salts pretty hard. Self medicating with Listerine and bath salts is no answer dear.

      1. Aw, let her vent. She’s gotta get those last remaining Recall splinters out of her ass.

    2. Say what you will, but Roberts just handed the Republicans a tool for unseating incumbent Democrats.

      “So-and-so voted for the biggest tax increase the world has ever seen. Elect me and I will vote to repeal it!”

      Ha ha! Democrats are going to get their asses handed to them this November.

      1. And you’re so happy about that because you love Republicans so much?

        1. I want to see people elected who will repeal this monstrosity.

          1. So you liked the prior healthcare status quo? Or do you just clap like a trained seal whenever right wing fatheads on the radio tell you to?

            1. The prior healthcare status quo sucked, but it was better than Obamacare will be.

            2. It’s preferable to Obama’s fascist Master Plan.

            3. So you liked the prior healthcare status quo?

              Not particularly. What I would like would be to take what both myself and my employer contribute to my health insurance (a little over a thousand dollars a month), get a high deductible policy for emergencies, and put the rest into an HSA.

              This law is the polar opposite of that.

              Or do you just clap like a trained seal whenever right wing fatheads on the radio tell you to?

              I only listen to the radio when I’m in my car, and it’s usually one of the college stations since they tend to play some unusual stuff.

              1. Why can’t the GOP grow a set and propose an alternative on these grounds? Not only would this mean most people would now have emergency insurance, price signals would start to work and healthcare costs would fall. You could even through in a subsidy for the actual poor to get the, into the system and it would still be massively cheaper than the status quo.

            4. Tony, as a resident of Massachusetts, I can assure you that Obama/Romney Care is a big step backward over the status quo.

              Not only are our insurance prices skyrocketing, but without the Feds throwing money into state coffers to cover the explosion in Medicaid costs the state would be utterly insolvent.

              The Feds can’t afford to do this for all 50 states.

              This bill is a huge wealth transfer from the lower middle classes to the civil service, the health insurance industry and to big pharma, and a bunch of states and the fed govt are going to be put in worse financial shape by it.

              1. You could be right. It’s not a plan for the longterm, that’s for sure. We know the only thing that could possibly work for that, and unfortunately it’s the least libertarian solution.

                Would libertarians mind terribly much getting off the maximum-corporate-power train for a while so we could perhaps not have laws written by and for industry?

                1. Tony, you’re an idiot. This law you love so much was a major corporate handout. A high deductible insurance/ HSA scheme is not.

                2. Would libertarians mind terribly much getting off the maximum-corporate-power train for a while so we could perhaps not have laws written by and for industry?

                  Actually, Jackwagon, we advocate returnign to a free market.

                  It’s progressives and mercantilists that are penning the laws to favor industry.

                  Your consistent track record of fucking things up and creating crisis after crisis is not our fault.

                3. Yeah, it was working out so great for Canada they decided they should let people go back to paying for their own care.

    3. Die in a meth lab explosion.

  8. According to Judge Napalitono a tax can only be levied to raise revenues,not punish .He also raised a couple other issue right from that piece of paper written by rich white guys.Roberts is a fool.He’s saying,when in doubt,side with the government.They win all ties

    1. Whereas the Scalia wing was obviously looking for reasons to strike the whole law (the more radical move). Deferring to the political branches is part of judicial restraint. If you, a completely democratically unaccountable branch of government, are going to reject the democratic will of the people (i.e. a law passed by Congress) you need to have a very good reason.

      1. Wow, Toni’s really bringing the derp today.

      2. Shouldn’t you be fellating summer session students who are trying to bump that D to a B rather than wasting valuable commenting space on this thread?

      3. The Constitution is a pretty good reason.

        1. The constitution is not an “I’m always right” certificate.

          1. The constitution is not an “I’m always right” certificate.

            When determining constitutional/unconstitutional, it actually is.

          2. Here! Suck on this dummy…simple enough so even an English Lit major can follow it.

            http://www.zerohedge.com/news/…..healthcare

            1. .simple enough so even an English Lit major can follow it.

              fish, Gillespie is going to kick your ass sooo hard for that one.

              1. I think The Jacket will do all the dirty work for Nick.

              2. Well their are E. Lit majors and there are E. Lit majors!

                I hope he wears the jacket when he does it!

      4. our form of government was set up to protect the few from the will of the many.

        1. Not exclusively. That would be an oligarchy. For most matters majority rules is the basic principle here or any democratic society.

          1. This was never intended to be a democracy, moron.

          2. Except when it comes to things like redefining marriage, right?

            Because the majority doesn’t seem to agree with you on that one.

            So majority rules, except when you disagree. Right?

            1. Except when we’re talking about civil rights.

              1. Not being forced to buy things that you don’t want or can’t afford is a civil right.

          3. For most matters majority rules is the basic principle here or any democratic society.

            But we are not a democratic society, we are a democratic republic. The bill of rights limits what the majority can do.

            1. What could possibly be your point? Obviously there are checks on majority tyranny. Equally obvious is that most routine matters of business are majority rules.

            2. I disagree. The Constitution does that all on its own, without the BoR.

              1. The BoR is part of the constitution.

                1. The BoR is part of the constitution.

                  It is, but I’m in agreement with Hamilton that it is redundant. The Consstitution isn’t a sea of power with a few liberties tossed in as an afterthought. It’s a sea of liberty with a few powers jealously granted to the federales. Big difference.

                  1. It’s a sea of liberty with a few powers jealously granted to the federales

                    True in theory, but not in practice. If not for the bill of rights we would be in much worse shape.

    2. He’s saying,when in doubt,side with the government.

      More like Roberts said, if the first bullshit argument of the government fails completely, move on to the second bullshit argument of the government, and if by twisting the meaning of words around you can kinda squint and not see the argument as complete bullshit, side with the government.

  9. Yes why don’t we spend more time indulging Republican tantrums.

    It’s not a tax as in a revenue-raising new tax. It’s a penalty in the tax code that, if the law is successful, won’t be charged to anyone.

    The only people who could possibly give a fuck are partisans who want to damage the president politically.

    The country is suffering with long-term very high unemployment and Republicans are either bitching about Dems not fixing it all when they had Congress (because Republicans obviously are not expected to do any governing), or hamfistedly throwing nonscandals and gotcha moments at the wall to see what sticks.

    God it was ear-splitting yesterday. Hannity et al.: “tax tax tax tax tax.” The entire Right collectively made a pouty face and shrieked yesterday.

    They were so much better at this when Karl Rove was running things.

    1. Tony your tears are so sweet. I want shrike to kill himself when Obama loses. I want you to come on here and whine and cry.

      1. He won’t lose, because Karl Rove is relegated to cable news where his only power is acting horrified at how much politically damaging overreaching his party is doing.

        1. He won’t lose, because Karl Rove is relegated to cable news

          OH GOD MY SIDES

    2. Awesome – that was the thermonuclear bomb of weapons-grade stupid.

      *golf clap*

    3. I was against the Patriot act,medicare part D ,the drug war and on and on.I don’t believe you are against for ANY linit on government,unless the repubs pass it.Of coures you fall in love with it when your man is in office.You want everyone to live as you see fit.Your a fool also

      1. Obamacare is definitely not my preferred solution to our healthcare problem, but as it was the incremental step we were able to get with the system and the Congress we had, I’m in favor of it over nothing.

        I don’t believe in limiting government for the sake of limiting government, no. I don’t see that as a virtue by itself. Not that there aren’t all sorts of reasons to limit government.

        But when it comes to healthcare, I simply prefer we join the rest of the civilized world and limit capitalism instead.

        1. But when it comes to healthcare, I simply prefer we join the rest of the civilized world and limit capitalism instead

          Yes, because the European Union is doing so well financially.

          1. Yes, because the European Union is doing so well financially.

            Cuba as well.

          2. Yes, because the European Union is doing so well financially.

            Well, duh! That’s because of markets and capitalism!

            You see, when government makes promises that it can’t keep, and borrows way beyond its means, the root of the problem is evil corporations and profits!

            See?

            It makes perfect sense!

            1. the root of the problem is evil corporations and profits!

              You forgot the Jews.

              1. And here I thought only Bert was evil.

          3. Notice that Tony never answers that one. Never. In his world Europe is perfect and anything else is just backwards because racist.

            1. Europe’s problems have nothing to do with the existence of the welfare state. With specific regard to healthcare, it’s cheaper to have a socialized system than a private one.

              1. Correction, it’s cheaper to have government rationing system where you don’t get care than a fucked up corportist system where price signals are distorted and government drives up prices like we have here. The current healthcare system hasn’t resembled anything like a free market in many decades. Out current healthcare system is the product of the past three generations of progressive policies.

              2. Europe’s problems have nothing to do with the existence of the welfare state.

                Insufficient regulation? Too-low tax rates? What are those erudite Euros spending their money on if not the welfare state?

                1. The US’s housing bubble?

                  1. Gee, why would European money be coming here, getting exposed to the US housing bubble?

              3. It’s only cheaper if you assume that everyone’s assets are commonly owned and that collective action is possible. A socialized system is not cheaper than the current system in the US for a person who rarely needs health care. I guess Obama care means to fix that.

              4. HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

              5. HAHAHAHAHAHAHAHA!

        2. When it comes to taking a turgid, blood-gorged crank up the ass, Tony’s libetarianism is second to no one’s. When we drift from the vital peno-rectal rights that the Founders clearly saw as vital to the Republic, Tony’s as Stalinist as Uncle Joe hisself.

        3. I’m in favor of it over nothing.

          We must do something, this is something, therefore we must do this. “Yes, Minister” logic from Tony.

    4. “It’s not a tax as in a revenue-raising new tax. It’s a penalty in the tax code that, if the law is successful, won’t be charged to anyone.”

      Oh, I get it now; Up is Down.

      1. e’s saying it’s a tax you don’t have to pay as long as you do as they say.How could that go wrong?

      2. Not taking is giving.

      3. Exactly. This is like when you walk through a park in a bad part of town at night and some guy with a weapon says you owe him a tax for walking through there.

        He’s not threatening or robbing you, he’s merely collecting a tax which you can avoid by not walking through the park next time.

        Sort like these shenanigans.

    5. A penalty that is not a tax, when put into the tax code becomes a tax, even though it is admittedly a penalty, not a tax.

  10. It’s a penalty in the tax code that, if the law is successful, won’t be charged to anyone.

    Congratulations, Tony! You’ve provided further evidence to support Chomsky’s thesis that one can construct a grammatically correct sentence that is devoid of semantic meaning.

    1. That exact point was, I believe, one Justice Ginsburg made in the oral argument.

      I’m no expert here but I believe my point is “who gives a fuck?”. Only partisans acting like truffle hogs sniffing for gotchas.

      1. Who gives a fuck about what words are supposed to mean? Objective meaning is so regressive.

      2. Then Ginsburg is as much of an idiot as you are.

      3. Ok fine, Ginsburg will get the credit.

        I’m no expert here but I believe my point is “who gives a fuck?”. Only partisans acting like truffle hogs sniffing for gotchas.

        Why? Because the words in a piece of legislation don’t mean anything?

        1. Per Chief Justice Roberts: it is effectively a tax, whether Congress called it that or not. At least it is so convincingly enough to give proper deference to Congress and not trash the whole law.

          The only reason it wasn’t called a tax was politics. The only reason that’s necessary is because idiot Republicans have convinced a large part of the public that they can get everything they want from government and not have to pay for it.

          1. The only reason that’s necessary is because idiot Republicans have convinced a large part of the public that they can get everything they want from government and not have to pay for it.

            Then why are you here and not arguing with the “Hands off my Medicare” old people?

            1. Those people are beyond help. But there certainly seems to be a huge amount of butthurt here whenever I criticize Republicans.

              1. It’s not your criticism of Republicans, sweetheart, it’s your undimmed defense of totalitarianism.

          2. At least you’re admitting that the law’s supporters are playing politics.

          3. The democrats lied because Republicans tell people they can get everything and not pay for it? Oh my head…

          4. Wait? Republicans have convinced people they can get everything they want from government without paying? What kind of pot are you smoking and where can I get some?

            1. The same stuff Paul Ryan smokes right before he claims that he has a plan to reduce the deficit by massively cutting taxes on the wealthy and corporations.

              1. The same stuff Paul Ryan smokes right before he claims that he has a plan to reduce the deficit by massively cutting taxes on the wealthy and corporations.

                So, not paying confiscatory taxes to the Central State is telling people that they can get everything they want from government? Huh?

              2. Well shit, you and Ryan need to hook me up because you’re both fucking insane statist.

                (Here’s a hint: Don’t use someone who presents a plan to increase spending by 4.9T as a paragon of, well, anything. Plus what Brutus said.)

            2. Remember, Nate, Orwell’s tyrannies all begin with the corruption of language. If you read Tonyisms from the point of view that all the words mean different things, everything snaps into place.

              1. That’s right; in Tonyland, if you don’t let Tony take your stuff because he wants it, you are selfishly taking stuff away from Tony.

          5. The only reason it wasn’t called a tax was politics.

            If they choose to make it a penalty instead of a tax due to politics, then it legally is a penalty, not a tax.

            You can’t put words in legislation that mean one thing and then say, “but we wanted to say something else, but it was politically inexpedient to say that something else, so the courts should interpret the actual words we put in the law to mean something else — the words we wanted to put in the law, but couldn’t because we’d be booted out of office for using those words.”

  11. Yes, by all means, let’s “codify the distinction”. So that Our Betters can ignore that in the future as well.

    1. I think Tony spelled it out.
      A penalty that is not a tax becomes a tax when it is put into the tax code, even though it is a penalty and not a tax.

      1. Except on the second Tuesday following a full moon.

  12. It’s a penalty.
    [slap]
    I said I want the truth!
    It’s a tax. . . .
    [slap]
    It’s a penalty.
    [slap]
    A penalty, a tax.
    [More slaps]
    I said I want the truth!
    It’s a penalty AND a tax!

    1. “Great Taste”

      “Less Filling”

      http://youtu.be/nehhH9rfnaw

    2. Forget it, Pro, it’s Tonytown.

      Second time this week I’ve been able to use that line.

  13. Anonbot can post on every fucking thread but I try to laugh at Tony’s stupidity and you mark me as spam? Seriously, fuck you squirrels.

  14. “idiot Democrats have convinced a large part of the public that they can get everything they want from government”

    FIFY’d. No charge.

    Bonus:

    http://www.merriam-webster.com/dictionary/racism

  15. IT’S A TAX!
    *slap*
    IT’S A PENALTY!
    *slap*
    IT’S A TAX!
    *slap*
    IT’S A PENALTY!
    *slap*
    IT’S A TAX *AND* A PENALTY!

    1. Sonovabtich, typed this up because it struck me while I was looking at my Chinatown blu ray. Beaten to it by a day.

  16. Here is what bothers me about the whole Roberts maneuver: It’s all well % good to cancel law based on its actual effect instead of the perhaps misleading words used in its codification. That actually improves transparency: the people need to be able to see what a law really does, and if a law does something bad, despite being written or advertised as doing good, then the law needs to be changed or scrapped, so that the thing sold to the people and allegedly intended by the legislators actually conforms to the plain meaning of the law’s language, which people can later read and judge for themselves. On the other hand, transparency is reduced, if language appears to say one thing, but the effect is clearly another. Even if the language seems bad but the effect is good, it is better to change or scrap the law, so that the people can see a clear connection between the language and its effect. This is why the Constitution wasn’t written in an obscure foreign language, for instance. In this country, the people are supposed to be able to stay on top of the government. How can they possibly do that, when the courts say that the laws don’t really mean what a plain reading of the text indicates? Promoting that kind of situation is simply un-American.

    In the Opinion, Roberts several times cites the court’s “duty” to save the Act if possible. No. It is NOT his job to excuse legislative incoherence or dis-ingenuousness, or redefine English so that people can’t tell what laws really mean.

    1. We really need a “faithful to the Constitution” amendment, I think. This amendment should:

      1) Command Congress to write brief, single-topic bills in plain language, with the intent that competent, literate citizens can understand them (like the Constitution);

      2) Provide that a law cannot stand if it is in conflict with the Constitution whether through its plainly-understood text, its substantive effect, or the process followed during its enactment; a failure in any one of the three contexts will make the law null and void;

      3) Remind Congress and the Executive branch that their oaths of office make them separately responsible for vetting the Constitutionality of proposed legislation;

      4) Require Congress and the Executive to attach signing statements that document their efforts to assess constitutionality of any bill they approve, that state the reasons why they believe the bill is constitutional, and that certify their belief is faithful to the constitution to the best of their knowledge;

      5) Require that neither house of Congress, nor the Executive, has the authority to approve a bill, the constitutionality of any provision of which is reasonably doubted by the approver;

      6) Establish violation of these provisions as grounds for impeachment or expulsion, as appropriate.

      1. xxx “that certify their belief is faithful” should be “that certify their belief that the bill is completely faithful”

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