Posted by: theoptimisticconservative | June 28, 2012

Implications of the new “Tax-Mandate”

So, this is how I understand the Supreme Court decision on ObamaCare.  Congress wrote an individual mandate – to purchase approved health insurance – into the law.  President Obama spoke with great certainty of the provision being a mandate, and not a tax.  Congress didn’t write the mandate in words that would make it a tax.  The description of the provision doesn’t fit that of a tax.  The provision is that you are required to buy something from a commercial vendor – i.e., not send revenue to the government, which is the exact definition of what a tax does – and that you are required to do so if you fit a certain income or employment profile; if you don’t fit the profile, you aren’t required to make the purchase; but if you do fit the profile and fail to make the purchase, you will be fined.

The Supreme Court decided that that’s a tax.

This is what a tax now looks like?  This is an open invitation to “tax” via whatever mandate sounds good to you.  What sort of unequal-before-the-law mandate would not fit this definition of a tax?  Congress can do anything it wants, by the logic of this decision, with the judicial precedent set that levying mandates equals using the power to tax.

Let’s mandate that every adult in America with an income over $80,000 a year has to buy a Chevy Volt or pay a fine.  Make it a 5-year recurring requirement, with the vehicle selected according to the preferences of environmentalists and unions.  Use the IRS to gather the necessary data and enforce the requirement.  It’s just a tax – why not?

Why can’t Congress tell us the size of house we are allowed to buy, require us to buy it, and fine us if we don’t?  Congress would just be taxing us by doing this.  Why can’t Congress mandate that we pay for two weeks of vacation at the tourist hotspots approved by Congress, and fine us if we don’t?  Why can’t Congress order us to pay for college and fine us if we don’t?  Buy furniture, buy certain types or brands of food, use a certain minimum amount of electricity or natural gas; get tattoos, buy a minimum amount of clothing each year – or buy only a maximum amount of clothing, and use only a maximum amount of electricity or natural gas – why can’t Congress require any or all of these things via a Tax-Mandate?

This is a very serious question.  If nothing in the US Constitution or legal precedent can be held to stop Congress from levying an unequally applied health-insurance purchase mandate, then what could stop Congress from levying any other unequally applied purchase mandate?  The same things that would stop a lawn-care or makeup purchase mandate should have knocked down the health-insurance purchase mandate.

It is deeply saddening to see the torture of our law and our idea of law in this instance.  Congress did not, in fact, write a tax; Congress wrote and intended to write a mandate.  SCOTUS has done great harm by so dangerously enlarging the effective definition of a “tax” – and by assuming the privilege of telling Congress what Congress actually did when Congress meant to frame a mandate.  The difference between purchase “mandate” and “tax” is a very real one from every perspective of government and law, and SCOTUS has irresponsibly elided them.

I say the court did not have the constitutional power to do that.  For the purposes of enforcement and politics – in terms of their meaning to our lives – the two things are obviously different.  They are validly separate categories, and it is overriding reality and the common sense of the people to decide that the one is to be interpreted as the other – and will therefore be treated as the other in terms of Congress’s constitutional powers.

If this decision was to be made at all – that a mandate is a tax, and Congress is empowered accordingly – Congress should have made it.  This transformational decision about definitions and distinctions in the law wasn’t for the Supreme Court to make.  A better approach for the court would have been to accept that Congress intended to write a mandate, and rule – on the basis expressed in the majority opinion itself – that Congress doesn’t have that power.  The court could have added that if Congress wanted to write a tax, it could do so.

A bulwark for our constitutional liberty and rights has been smashed.  Taxes do not involve commercial-purchase mandates, and individual purchase mandates, if they are to be implemented at all, belong to the states.  If we do not abide by those definitions and limits, then there will be no limit on what SCOTUS will say the Congress can “tax-mandate” out of our wallets.

J.E. Dyer’s articles have appeared at Hot Air’s Green Room, Commentary’s “contentions,Patheos, and The Weekly Standard online.

Note for new commenters:  Welcome!  There is a one-time “approval” process that keeps down the spam.  There may be a delay in the posting if your first comment, but once you’re “approved,” you can join the fray at will.


Responses

  1. Wait a minute, the US is a democratic republic, people selected by the voters pass laws and confirm members of the judiciary that make decisions, what could possibly go wrong? Isn’t this nephew of a democracy the worst system of government in the world, except for all the others? How could we expect any different kind of outcome? The ritual pas de deux that the Democrats and Republicans stage is a surrealistic dance designed to elevate their own collective interests to the exclusion of normal folks that simply want to get on with their lives without becoming the stagehands and go-fers of the slightly-bigger-than-one party system.

    Sane people recognize this and ignore the inane media political coverage and government itself, knowing that they can no more personally affect it than they can adverse weather and that any benefits they might receive are strictly happenstance. Instead they watch sports or track celebrities, which is hardly nuttier than observing the actions of social deviants like Barney Frank, Nancy Pelosi, Patty Murray or a host of others in both parties.

    In one way, the capitulation of the chief justice may work out for the best. It could push things a little farther toward the general outrage required to get the government off our backs. It’s going to take a lot more than this one incident, though.

    • Churchill knew whereof he spoke, our system, a representative republic, one aspect of which is democratic is the worst of all systems until all the other systems of governance are considered. What alternative do you suggest? Or are you merely a critic who never ventures out of safe harbor but unhesitatingly lays judgement upon those who do dare to confront the dangers of the deep?

      As to the “pas de deux that the Democrats and Republicans stage is a surrealistic dance designed to elevate their own collective interests to the exclusion of normal folks” not one Republican Senator (the body charged with reflective consideration of consequence) voted for this Constitutional infringement of liberty.

      They resisted elevation of any collective interest over the interests of ‘normal’ folks. Will you give credit where credit is due or will you ignore ‘inconvenient facts’?

      If ‘sane’ people recognize that they have no hope of personally affecting the depredations of governmental intrusion… then what good is sufficient outrage? Implicit to your own statements is the assertion that when enough people are outraged enough, needed correction can emerge.

      That assertion implies implicit faith in the very system you so frequently disparage. Perhaps a bit more self-reflection will shed deeper insight into your cognitive contradictions?

      Or you can be just one more example of Churchill’s question; “Once in a while, we stumble upon the truth, will you face it or decide to pick yourself up and hurry along, as if nothing had happened?”

      • If ‘sane’ people recognize that they have no hope of personally affecting the depredations of governmental intrusion… then what good is sufficient outrage? Implicit to your own statements is the assertion that when enough people are outraged enough, needed correction can emerge.

        You’re assuming that the political/state configuration will remain similar to the existing. Maybe you haven’t noticed that the Praetorian Guard no longer anoints a Roman emperor.

        • I am indeed making that assumption, are you predicting another civil war? Or sufficient amendments to address the US’ leftward tilt? if not, the assumption is valid.

          • Are you predicting that the US congress, presidency and supreme court, composed of the professional politicians that demonstrate in public like their counterparts in wrestling, will still be wielding their power over the proles residing between the Atlantic and Pacific four hundred years from now?

      • Churchill is a great choice for your little homily. Churchill was on the liberal wing of the Conservative Party, and was one of the minority in his own party who supported the idea of a National Health System (Though by way of universal insurance like France and Germany rather than the Labour Party’s proposal for direct government provision). In any event, Atlee’s Labour party won the election and the labour scheme was introduced. When Churchill’s Conservatives were elected back into power, instead of abolishing or replacing the NHS, they actually extended it.

        • Churchill was no advocate of socialistic solutions; “Socialism is a philosophy of failure, the creed of ignorance, and the gospel of envy, its inherent virtue is the equal sharing of misery.”

          Churchill never envisioned the N.H.S.’ death panels. NHS failings lead to deaths of 24,000 diabetics each year, says report

          Were he alive today and witness to the extent of socialism embraced by the UK today, he would either reject it or be forced to rescind his own words; “We contend that for a nation to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle.”

          • The Brits enjoy better health stats than we do. And WHO stats show that the US, not Britain leads the world in diabetes deaths (But, to be fair, this is more to do with our diet than the failure of US medicine)

  2. I suspect that the cold civil war in this country just got a fair bit warmer.

    • Indeed, the lines of disagreement continue to deepen.

  3. The Republic is gone. The Constitution is history. The marxists have won. It is over. Turn out the lights, I’m outta here.

    • another benefit of the ruling…….. idiots who can’t distinguish government social programs from a marxist state flee the US …….

    • The increased ability of Congress to ‘tax’ is certainly an infringement upon liberty but does not equate to the loss of the Republic. It is however, a perhaps significant step in that direction. The question then becomes what shall we do? Capitulate, emigrate (to where?) or continue the struggle appear to be the only choices.

      • You could always go to somewhere the Third World. By and large, everyone else has it.

        • My mention of emigration covers that option. You’ll find that taking a moment to reflect upon another point of view before reacting with knee jerk rejection will go far in sparing you from self-embarrassment.

  4. Thank you J.E. for articulating exactly why Judge Robert’s reasoning is flawed and what the consequences of this decision lead to, with the only bulwark against Congressional impositions against individual liberty now being self-restraint, a ‘hope’ laughable in its naivete.

  5. ___ I say the court did not have the constitutional power to do that. ____

    and that matters as much as the opinion of Lionel Dubinsky Jr who thinks that SCOTUS opinions are authorized by God.

    • Perhaps it ‘matters’ in ways you haven’t considered? In a representative Republic, how do you establish and maintain an informed and reflective citizenry, able to recognize wisdom, without discussion about matters in which they have no direct say?

      • good point GB, but what does recognizing wisdom have to do with the silliness of the sentenced that I quoted?

        perhaps judges don’t have scientific training, but some analysts have little grasp of law and legal history…. political opinions are not a good substitute.

        • Nothing.

          I was focused upon your assertion that J.E.’s view didn’t matter any more than Dubinsky’s, not his silliness. Wisdom allows one to differentiate between those opinions which contribute to the discussion and those which do not.

          Of course judges don’t have training in science, which is the point. Analysts don’t render judicial rulings so their legal ignorance is irrelevant. Nor are political opinions, pro or con, appropriate criteria for the government to be making regulations and rulings which so profoundly affect the citizenry and private enterprise.

  6. Harsh as this may seem, the only way to salvage the Republic after this ruling with deep far reaching implications….is to bankrupt it.

    Both republican and democrat politicians will utilize this precedent for their own self serving political ends from now on.

    BTW, welcome to the EU. The first thing you must learn now is the definition of “Directive”.

    And remember middle class Americans, “Arbeit mach Frei”. Your politicians will take care of the rest.

    • what an insight!!!! politicians will use taxation for their own political ends…….

      yes, this Supreme Court ruling will institute that novelty !!!!

      • Wasn’t meant to be an insight, this goes beyond taxation. The article spells it out. No need to bother me.

        • sorry if you’re bothered. the article is such a mess and a disappointment that perhaps I’m taxed beyond reason and picking on you unequally

          • The article is such a mess? Really? What legally logical consequence of this ruling elucidated by the optimist do you disagree with, specifically?

            Further cavalier dismissal as “a mess” unsupported by any contrary rationale, reveals an inability to respond with substantive rebuttal indicating denial which seeks to hide from facts.

            • For starters, the nonsense that the Court hasn’t the Constitutional authority to uphold this particular statute.

              Either the Court has the authority to decide the Constitutional congruence of legislation or it has not.

              The opticon is confused, thinking that her belief that the statute is unConstitutional is sufficient to make that belief binding on the people and institutions of the United States, and thereby allowing her to declare that the Court hasn’t the power to rule against her wishes.

              We all like to believe that we know best sometimes, but few of us don’t know the difference between “the Court made what I think is a horrible ruling that’s utterly wrong” with ” the Court has no right to rule …because it ruled incorrectly”

              • The court’s authority to rule upon Obamacare’s constitutionality is not being disputed by the optimist. It is how SCOTUS upholds Obamacare wherein the SCOTUS has overstepped its constitutional limits.

                SCOTUS has ruled that it is unconstitutional to establish a mandate but ok for Congress to punitively tax those who do not obey the very mandate ruled unconstitutional…

                In effect, SCOTUS is saying that Congress can say that while it can’t make you do something, it can punish you if you don’t do what it wants. That’s coercion however you look at it, regardless as to how it may be justified. Coercion is, by definition, a basic infringement upon liberty. That infringement is what makes it unconstitutional and only the most tortured technical legal ‘reasoning’ can support it.

                The majority has avoided the issue of Obamacare’s constitutionality by assuming the power to declare what Congress “meant to do”, declaring that a ‘mandate’ is a tax and a ‘tax’ a mandate.

                One more example of; “It depends upon what the definition of is, is”…

                The difference between a “mandate” where one ‘must’ purchase something and a “tax” is a very real one from every perspective of government and law, and SCOTUS has irresponsibly elided them.

                It is your understanding that is confused fuster, as the opticon has every right to express her opinion, which is all that she has done. Expressing the opinion that SCOTUS has overstepped its authority, so as to justify its ruling is not the same thing as disputing the authority itself.

                • GB, you can’t respond to a ruling by SCOTUS upholding the constitutionality of a law by saying by saying that the Court hadn’t the Constitutional authority to issue the ruling WITHOUT challenging the Court’s right to rule as it sees fit.

                  There is no instructions within the body of the Constitution that limit the judicial power vested in the Court except concerning jurisdiction and there’s nothing that Constitutionally prevents the Court from advancing whatever rationale that they find mete.

                  Should they announce that they upheld this law because free market theories are repugnant to the Constitutional requirement that the government serve to advance the health of the body politic, there’s naught in the Con that forbids it.

          • No problem, And there’s nothing wrong with the article.
            Affordable health care for folks is a noble idea and a current problem. No doubt about that. I would go so far to say that it’s a right. My kid supposedly has comprehensive insurance at college. He had to pay 150 bucks for ONE x-ray on top of his coverage. That means the actual charge on the X-ray was over $500! Now that’s just plain ridiculous.

            The way this became law bothers me, that old adage, “the road to hell is paved with good intentions” came to mind.

            Off hand, I think incentives to increase competition in the health care and insurance industries to drive down costs, would be more cost effective in the long run.

            • Health care didn’t become so expensive until we began regulating it — not certifying doctors, but literally deciding what people’s access to health care “ought” to be or “must” be, what it should cost, how procedures should be selected, and so forth.

              The Medicare model, followed by Nixon’s health care collectivization program — steering employers to proprietary health plans rather than the actual “insurance” they had been purchasing for the last 20-odd years — set us on the heavily regulated path. We have never recovered.

              You can go to Mexico and have a procedure done for $10K out of pocket that your insurance company would be billed for $100K for in the US, and would compensate the claimants for about $35K. We have a moronic kabuki dance here, with forms and clerks and regulations, that makes everything cost more. There is no need for the 50 separate state bureaucracies, plus the federal bureaucracy, and all the costs of handling compensation through a third-party (insurance) mechanism, or the fees most providers now have to pay to the states to fund the states’ regulatory programs. No need for any of it — but that’s what makes everything cost so much.

              • health care IS expensive and we have always regulated. started when we began licensing doctors.

                • No, fuster, we have not always been regulated as heavily as we have been in the last 45 years. The difference in the regulatory environment in 1960 versus 2010 is like that of day and night. There is no such history as one in which American health care was heavily regulated, and made increasingly more expensive by regulation, prior to the inauguration of Medicare and the Nixon reforms.

                  • you’re correct that the regulation has grown greatly more complex, but not as heavily is not is not not regulated.

                    as health care has grown more extensive and expensive, the people of the United States have opted to extend the government’s role in providing for the public health…. just as the people have opted for fund a large standing army.

                  • So why then is healthcare so much cheaper and better in other industrialized countries with proper, integrated, and universal, health provision?

                    • You’re just mouthing propaganda, Prove that it’s better and cheaper. How about the Canadian mom that couldn’t find a hospital in the Dominion that would deliver her quads so she was forced to go that US leader of obstetrics, the Great Falls Community Hospital in Montana, where the delivery occurred uneventfully.

                      The real point of all this is that if socialized medicine is necessary in this country then our genius leaders should be able to convince us that it’s to our advantage to accept it, we shouldn’t be forced to take part in a scheme in which we don’t have faith. There’s about 320 million people living in the USA right now, is each and every one needed in the government plan? Couldn’t the feds talk maybe 100 million into going along with the deal and let everyone else alone? What if the country was only 100 million to begin with? Would they have to wait for another 220 million to show up to start their grand operation? You gotta be suspicious of anything that’s mandatory. If it’s such a good deal, why does it require coercion to get folks to sign on? If a hundred million move to Brazil, then what?

  7. So, the King imposes an onerous tax on people who meet his selected profiles But, if you do what the King says, you are relieved of some of that tax. The more compliant you are, the less you pay. Don’t do what the King says and don’t pay the tax? Go to jail.

    My paisan Machiavelli would have loved it.

    Traditionally, government taxes what you got. Now it also taxes what you don’t got.

    • My thoughts exactly.

      Tax Fuster at 100% and when he does what he is told to do; votes the way he is told; and behaves the way that is expected by his betters; then he may have some tax credits for which he can pay his rent for his allotted hovel in the sewer otherwise known as New York City.

      About 3 years ago I was offered a really nice opportunity to interview for a company who needed a CIO/CTO who could build computer rooms from scratch, and operate a distributed high availability computer operation. The main computer room was in the Cayman Islands – with the HQ. But the clients were to be distributed across several Caribbean locations.

      I would live at home home (actually anywhere I’d like close to an international airport with private air service – ooh corporate jets) and do regular commutes to the various sites.

      Nice work… if you are the “Harvey Specter” of the computer operations and information set.

      The Client (I don’t remember the company’s name now… and I think that it might have changed – the main hiring agency was a consulting/head hunting firm) is better left unmentioned even if I remembered it exactly. Well, it was a legal company, but legit… might be stretching it.

      The company looking for the CIO/CTO was in the business of…. wait for it….

      Healthcare Resorts. Yes that is right… Healthcare Resorts, essentially special fee-for-service, concierge style full service inpatient and outpatient medical treatments conducted offshore in the privacy of International Tariffs and Contracts. So rich person A purchases nothing. Pays the fine, and then takes the money saved and some extra, and writes a contract for “Spa” services with this corporation in the Caymans.

      Need Chemo? Need exotic joint replacements? Need a kidney or liver transplant? No problems just go to the Spa by the bay. They’ll fix you right up.

      I wonder how all of this shakes out when companies start dropping their $12,000 a year per employee health plans in favor of paying the maximum $2,000 per year tax penalty? Since most states don’t have the money to run with the current Medicare mandates, and courtesy of a couple of libs on the bench, the feds can no longer force them to expand Medicare coverage… How do people purchase health insurance?

      Which is not a problem for those “Cayman Islands Health Spa” people who passed the law in the first place, is it?

      Roberts has lost his mind or his horse lost it’s head.

      r/TMF

      • and blah, blah, and blah. fust off, fusters have no betters, we serve for wurst. and the power to tax, as we all know, is the power to annoy.

        you are and do,

  8. Cousin Vinnie implies one of the most important collateral points. Although the opportunity to mandate a lot of things and call it a “tax” is the biggie here, the opportunity for government to mandate a bunch of things just so it can collect fines is blindingly obvious. No Chicago pol could miss the significance of this opportunity.

    In the Middle Ages, in parts of Europe, Jews were “taxed” if they didn’t convert to Christianity. Under the rule of Islam, whether the Abbasids, the Umayyads, or the Ottoman Empire, Christians and Jews were both required to pay fines for not embracing Islam. There is no end to what rulers will “tax” us for not doing, if they have the power to. Chief Justice Roberts has said the US fedeal government does have that power.

  9. —” The provision is that you are required to buy something from a commercial vendor – i.e., not send revenue to the government, which is the exact definition of what a tax does – and that you are required to do so if you fit a certain income or employment profile;…”

    very much like the provisions of the federal tax code that mandates that people of a certain income must forward certain sums to the government in taxes…. unless, they send money to charities …or buy and maintain cattle…..or buy a mortgage for a family residence…..

    • No. nothing like those provisions.

      US tax code: you owe the government 28% of your income, but you can claim deductions and owe less.

      ObamaCare: you must buy insurance from a commercial vendor, and if you don’t, you pay a fine.

      For the two situations to have any similarity, the policy on mortgage interest deductions would have to be designed as follows:

      You must buy a house, and if you do, you can pay less in taxes.

      The similarity is not exact, however. For it to be exact, the house-purchase requirement would have to entail a fine if you don’t comply.

      • you’re quite correct that the similarity is only a similarity and not an analog. but the similarity suffices to demonstrate that the buy-it-or -pay-the -tax provision is not immediately dismissible as beyond the power of the Congress.

        I appreciate that you find the thing offensive, and gravely ill-advised, but it ain’t simply beyond reason of being of Constitutionally permissible……

        as we just were informed,

  10. It is self-evident nonsense to say that SCOTUS didn’t have the power to do what it did. The fact is that it does. It is the arbitrar of what is or isn’t constitutional. You are of course free to disagree with the ruling of the Court. But when you claim that the Court didn’t have the power to do what it did, is simply……..goofy. What SCOTUS says is law. What you say is opinion.
    Neither does it matter whether or not the President believed it was an issue of commerce or taxation. He doesn’t decide these things, Scotus decides them.
    Finally, had you read the judgment you’d have seen that the Court has (yet again) clearly signalled that the power to tax is NOT unlimited. It must be exercised reasonably. So all the nonsense about Chevy Volts etc. is just that – nonsense. Petulant, goofy nonsense. And, of course, SCOTUS, not you (or the President) decides what is reasonable where legislation is challenged.
    More worrying is your conviction (now rampant among our far right brethern) that anything they don’t agree with is not merely wrong but illegitimate.

    So, it’s down to what happens in November. Or not. We now have the risible Mexican candidate, Miguel Romneycare, vowing to repeal legislation he virtually fathered. Now, is this volte-face because he has suddenly ‘seen the light’, or because he is weak and scared in the face of the far-right activists to whom he sold his soul? The RCP poll-of-polls shows the gap between the President and Romneycare has widened to 3.5 points since the S/Ct decision so I reckon the electorate has got his measure. And, of course, we Americans like a winner.

    (p.s. a new poll shows that 2/3rds of the electorate believes Obama would be better than Romney in defending the US against an alien invasion. I reckon this says a lot about the success (or otherwise) of the mainstream far-right media in trying to portray the President as weak on defence. It probably reflects the growing opinion that Romney has changed his opinions so many times that he is basically undependable)

    • I think the Chevy Volt is a good analogy. Saving the planet is imperative. Electric cars are essential. You don’t have one. You are the problem. We will tax you until you buy one. But it can’t be just any electric car, it has to meet government specifications. Those specifications, just coincidentally, I’m sure, only match the car produced by the company in which the government has the most invested.

      Not reasonable? I guess different justices could come to different conclusions, but where is the standard to guide them?

    • Ahh, Paulite, we have an illegal alien invasion and Obama wants to surrender.

      • whatta you talkin? Obama is fighting, and has joined with so many of the religious know-nothings of the Republican base, to keep the alien Mormon from running the government.

        • Little Green Mormons?

          • eating Moroni and MacCheese

  11. It might also mean that most people would prefer the Martians to Romney. Understandable.


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