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In reply to an earlier post on Apr 2, 2012 1:00:56 PM PDT
Last edited by the author on Apr 2, 2012 1:04:55 PM PDT
Woolley says:
Only recently. Here is lopez:

the channels of interstate commerce,
the instrumentalities of interstate commerce, or persons or things in interstate commerce,[10] and
activities that substantially affect or substantially relate to interstate commerce[11]

Looks like health insurance is covered...notice that he did not define commerce...

but there was more from Rehnquist

The Court reasoned that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so. Rehnquist concluded:

To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."

Now understand that up until Lopez, the commerce clause did not have this type of constraint upon it and was used to regulate all sorts of activities that one would assume is commerce. Fisheries, salamanders, pollution, wages, labor laws, race relations and so on all fell under the commerce clause regulatory powers. In Raich, Scalia even said growing pot for yourself was interstate commerce in support of New Deal type regulations on farmers. Why would 17% of the economy not be subject to federal regulation if the commerce clause allowed you to forbid raw dumping of sewage into a river on the state line?

In reply to an earlier post on Apr 2, 2012 1:24:07 PM PDT
M. Daniel--"It is part of the power to tax and spend."

>>JGC: I see. So that section means that Congress has the power to tax in order to provide for the common Defence and general Welfare of the United States. I think you are right. So if Congress had gone with a tax as the liberals wanted, there would be no Constitutional issue. Somehow, I sense a double-cross--the individual mandate was the only mechanism any Republicans at all would accept and when it passed, they immediately claimed it was unconstitutional.

In reply to an earlier post on Apr 2, 2012 2:39:21 PM PDT
avande7217 says:
" Somehow, I sense a double-cross--the individual mandate was the only mechanism any Republicans at all would accept and when it passed, they immediately claimed it was unconstitutional. "

Perhaps
ALTHOUGH
I don't believe that
The Republicans
"Accepted"
Any of it.

More likely...
The Dems didn't want to call it a tax
WHICH
Certainly would have withstood judicial scrutiny as a well-recognized
Enumerated power.

In reply to an earlier post on Apr 2, 2012 2:46:51 PM PDT
Woolley says:
Seems to me that if indeed the only issue they have is with vocabulary, they should just amend the law to say "tax" and be done with it. What a joke.

In reply to an earlier post on Apr 2, 2012 2:54:10 PM PDT
M. Daniel says:
Woolley says: "Seems to me that if indeed the only issue they have is with vocabulary, they should just amend the law to say "tax" and be done with it. What a joke."

Because Obama promised he would not raise taxes on the middle-class.

In reply to an earlier post on Apr 2, 2012 2:58:27 PM PDT
Woolley says:
And what exactly does a campaign promise have to do with the constitutionality of the ACA? Nothing.

In reply to an earlier post on Apr 2, 2012 3:03:49 PM PDT
M. Daniel says:
Woolley says: "And what exactly does a campaign promise have to do with the constitutionality of the ACA? Nothing."

The campaign promise is why the law did not call it a tax when it was being written. They would have trouble getting that amendment through the House.

In reply to an earlier post on Apr 2, 2012 3:12:31 PM PDT
avande7217--"I don't believe that The Republicans "Accepted" Any of it."

>>JGC: You are right! I sorta remembered that Susan Collins and Olympia Snowe had voted for it, but re-checking, I see that all Republicans voted against it in both houses. Maybe it was the only mechanism Joe Lieberman would accept. The Dems needed every single vote (thus the shameless bribe to Ben Nelson of Nebraska).

In reply to an earlier post on Apr 2, 2012 3:17:13 PM PDT
Woolley says:
Not sure if that is the way it worked out but I will let it go. if they decide against it due to vocabulary and throw it out, then we know exactly what drove their decision and it wasn't the law or any desire to play a role in solving a national problem like health care. A penalty and a tax are two sides of the same coin. Are you penalized via the tax code for not having a mortgage deduction? That is inactivity in my book...

In reply to an earlier post on Apr 2, 2012 3:24:07 PM PDT
Woolley says:
You do realize that the constitution does not mandate a 60 vote majority in the Senate to pass bills...

Posted on Apr 2, 2012 3:25:14 PM PDT
M. Daniel says:
Woolley says: "if they decide against it due to vocabulary and throw it out, then we know exactly what drove their decision and it wasn't the law or any desire to play a role in solving a national problem like health care. A penalty and a tax are two sides of the same coin. Are you penalized via the tax code for not having a mortgage deduction?"

If they decide against the law it is not just vocabulary but whether there is any limit on the power to regulate commerce to prevent violations of the Constitution. I don't get your analogy to the mortgage deduction.

In reply to an earlier post on Apr 2, 2012 3:30:19 PM PDT
Woolley says:
is it not a penalty via your tax liability NOT to have a mortgage? Why is that legal yet a penalty for not having insurance is somehow illegal? Same difference. In both cases, you did not do something and were penalized for it.

In reply to an earlier post on Apr 2, 2012 3:40:50 PM PDT
A deduction for a mortgage is not the same as a penalty for not having insurance. If you don't have a mortgage because you rent an apartment, you don't get a penalty for it.

Posted on Apr 2, 2012 3:42:43 PM PDT
M. Daniel says:
Woolley says: "is it not a penalty via your tax liability NOT to have a mortgage? Why is that legal yet a penalty for not having insurance is somehow illegal? Same difference. In both cases, you did not do something and were penalized for it."

I think it is different for two reasons (1) you are not penalized for not having a mortgage, but your taxes may be lowered if you do have a mortgage (like having children lowers your taxes) (2) you still have the standard deduction which might actually result in lower taxes if your mortgage interest deduction + other deductions are less than the standard deduction.

In reply to an earlier post on Apr 2, 2012 3:50:17 PM PDT
Woolley says:
What legal principle shields you from being penalized for not having insurance when indeed you do have insurance via EMTALA but have decided not to contribute to it? You would still have the standard deduction with the ACA penalty so your second point is moot. I have asked this of anyone who seems to have a dog in this fight. What is the explicit prohibition in the constitution against the mandate? All that is offered is some version of "it's never been done before" or "it's a freedom issue" when in fact, it has been done before in the Militia Acts and the freedom issue is really quite silly when the same government can take you and lock you away in Cuba for the rest of your life without charging you....

In reply to an earlier post on Apr 2, 2012 4:07:41 PM PDT
Woolley--"You do realize that the constitution does not mandate a 60 vote majority in the Senate to pass bills..."

>>JGC: Yes, I do! Please inform the Republicans, especially Mitch McConnell.

In reply to an earlier post on Apr 2, 2012 4:10:08 PM PDT
They don't need 60 to pass a bill, they need 60 to defeat a filibuster.

In reply to an earlier post on Apr 2, 2012 4:31:05 PM PDT
Mr. Gwyn--"They don't need 60 to pass a bill, they need 60 to defeat a filibuster."

>>JGC: Splitting hairs a bit, aren't you? You can't get a bill to a vote with fewer than 60 votes if there is any significant opposition from the minority.

In reply to an earlier post on Apr 2, 2012 4:33:08 PM PDT
It's the truth isn't it?

In reply to an earlier post on Apr 2, 2012 4:37:32 PM PDT
Woolley says:
Funny how the constitution is used selectively by those on either side as they see fit. The current Senate is a legislative nightmare where a Senator from an insignificant state can hold up legislation or appointments that affect 300 million people. Should one person from Iowa or North Dakota block the will of millions upon millions? I don't find that to be very democratic or fair. And please do not tell me about the vaunted Republic. Rome was a republic before it turned into an Empire....

In reply to an earlier post on Apr 2, 2012 5:56:46 PM PDT
Mr. Christenson, I also "heard and read [that] the government's case seemed to focus on the interstate commerce clause." I am not a lawyer and do not know why Article I Section 8 was not used.

In reply to an earlier post on Apr 2, 2012 6:00:40 PM PDT
Rover says:
It's a tax when it needs to be a tax, and it's a penalty when it needs to be a penalty. To hell with "Law".

"You lookin' at me?! You lookin' at me?!"

In reply to an earlier post on Apr 2, 2012 6:02:53 PM PDT
Rover says:
If its just a vocabulary problem, there are millions of people languishing in prison right now who would like to talk to us about vocabulary problems. Change a word here or a word there, and they're all free!

In reply to an earlier post on Apr 2, 2012 6:11:33 PM PDT
Woolley says:
It's a point that is not worth making really since the net affect of either word is the same. If the justices were so concerned with vocabulary this is a strange case to prove they know the difference between a penalty and a tax. The case is not being argued on whether the congress has the power to tax or penalize you on your tax returns. The case is being argued on the powers of the commerce clause and the N and P clause. Since the current court cannot utter the words "the commerce clause is very vague and is limited to that which the congress and the POTUS deem it to be as long as it comports with the constitution", they will try to create some extra-constitutional test for the mandate that is purely a creation of their political viewpoint. This is not a secret to anyone who follows the law or listens to legal scholars on either side of the aisle. Just as in Gore v Bush and Citizens, this court wants to wield political power to gain an ideological advantage they could not gain at the ballot box.

In reply to an earlier post on Apr 2, 2012 6:21:23 PM PDT
Last edited by the author on Apr 2, 2012 6:22:30 PM PDT
emac says:
Domenico

In what I was reading, the Gov did advance the tax argument. In the first session, for example, one of the Justices was saying: Today you will not call it a tax; yet tomorrow you will say its a tax.

I have not seen the briefs, let alone all the amicus briefs, but I do think the tax issue is in play.

Even if it is not, the SC can use that argument if they so choose. Lower courts are often affirmed even when their analysis is wrong in the view of the Higher court.

I was surprised that Commerce was the primary argument. That courts have been so wide open with it seems to be the reason. I have always felt it makes more sense to say:

If you buy the insurance, you get a tax break; if you don't buy the insurance, you pay a tax penalty.

In the end, if the SC wanted to use this analysis, it could.
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Discussion in:  Politics forum
Participants:  66
Total posts:  1760
Initial post:  Mar 30, 2012
Latest post:  Jun 28, 2012

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