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US Politics: The Chief Executive's Immigration Smackdown


Tywin Manderly

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Tracker,

For, as Aceluby correctly pointed out, this behavior and semantics bullshit to no longer be "par for the course".

OK, so then this debate really has nothing to do with the value of the Affordable Care Act. You want politicians to be more honest, which is not in itself a bad goal, but let's just be clear that the ACA is not at the center of this discussion.

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Nestor,

Yes, which led to my earlier question about what is the actual controling majority in the Mandate case? Was Wikard expanded by Robert's concurrance on other grounds?

I still think it was dishonest for our President, the Constitutional scholar, to refuse to acknowledge the "penalites" may have needed to be classified as "taxes". YMMV.

Scott,

I'm not even sure what the difference is between a "penalty" and a "tax." Every understands that the ACA imposes a financial cost on those who don't purchase health insurance. In common parlance, I don't see any contradiction between calling this a "penalty" or calling it a "tax" or calling it, for example, an "incentive" to purchase health insurance or a "fee" for not purchasing health insurance. None of this has to do, in the legal sense, with the Constitutional justification for the penalty/tax/incentive/fee. In terms of the public debate over the ACA, I tend to agree with the thrust of what Tywin Manderly said on this page, which is that the battle between the tax and penalty camps are more a matter of the connotation of the cost - is this some kind of unjust encroachment on people's wealth, or a legitimate tool for punishing freeriders and solving a collective goods problem? It's NOT a legal battle being waged at campaign rallies. It's a semantic battle over politically loaded terminology, not Constitutional interpretation.

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Lev,

FLOW and I conceded back in 2009 (do those threads still exist?) that a "Tax" would be within the power of Congress to impose because of the 16th Amendment. When the Justice Department then contradicted the President and everyone else who argued for passage of the ACA by arguing the penalties of the Mandate were taxes, I (can't speak for FLOW on this one) found the argument disengenuous because of the prior insitence that the penalties were not "taxes".

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We could always get into a legal vs layman definition of lying first before we decided whether the president was lying, and under which definition...

Scot, I wish your ideal world would happen, but when there is such a huge difference of opinion on topics based on whether or not you use certain trigger words, I don't think its outright lying. Nor, in my very, very limited understanding, think that the admin set out to defend it legally by calling it a tax. You can't fault someone because Roberts made an argument for them.

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MC,

Here’s a 2012 NYT’s article on this issue:

http://www.nytimes.com/2012/03/27/health/policy/arguing-that-health-mandate-is-not-a-tax-except-when-it-is.html?_r=0

From the article:

The issue at hand, concerning whether the litigation is barred by a 145-year-old law called the Anti-Injunction Act, has long been awkward for the Justice Department. The act bars lawsuits challenging new taxes before the taxes are actually due.

If the Supreme Court determines that the law’s health insurance mandate qualifies as a tax, because noncompliance would be punished as an income tax penalty, it could rule that a constitutional challenge cannot be filed until 2015, after the first fines are assessed. That would relieve the court of deciding the merits now.

In defending the law, the Justice Department has taken a legal position — that the health care act constitutes a tax — that contradicts the political stance taken by President Obama. To do that, it has relied on legal semantics to argue that the insurance mandate will be enforced through the tax code even though Congress took pains to label it a penalty and not a tax.

See?

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Fallen,

The mandate would have been struck down as unconsitutional if it had not been argued that the Congress had the power to enforce the penalties called for in the Mandate under the taxing power of the 16th Amendment. That is much more than mere "bookkeeping". That is substantive and it is very different from the justifications offered for the Penalties in the run up to the Vote on the ACA. If the penalties were taxes and had to be taxes such that the Justice Dept. argued that they were taxes they should have been called "taxes" and then let the chips fall as they may.

There are two scenarios. One, the President knew it was a tax, but because of the negative connotation attached to the word tax, he knew he had to sell it as a penalty. Or, he has always viewed it as a penalty, but knew that in order to pass as law it would have to be re-worded and classified as a tax. Hence, my bookkeeping remark.

I don't have a problem with either scenario. The more cynical, or those opposed to the ACA, will suspect the former.

The reason I'm not upset about the semantics is that the President made it clear that there would be a price.

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Lev,

I'm not digging through the 2009 health-care debate and politics threads. If you will not take me at my word not much I can do about that. Feel free to disprove my assertion that I conceded and I believe FLOW conceded a tax would be within the power of Congress to create pursuant to the 16th Amendment without having to resort to arguments derived from Wickard.

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Lev,

I never said the Administration said that. I said their legal arguments contradicted their earlier statements carefully catagorizing the mandates penalties as "penalties" and not a "tax". There was never a direct promise not to make the legal argument that the "penalities" were "taxes". You and I went round and round about this same issue in the run-up to the hearing on this issue back in 2012.

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