US Politics: The Chief Executive's Immigration Smackdown

[The Fallen]

Ser Scott,

It looks to me like the change from penalty to tax was done mostly for bookkeeping purposes.

[Ser Scot A Ellison]

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.

[NestorMakhnosLovechild]

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.

How can you fault the Administration for making an "in the alternative" argument, which happens all the time? The Administration primarily argued that the Individual Mandate and the penalties associated with it were justified under the Necessary and Proper Clause and the Commerce Clause. They only argued that it was a tax, in the alternative, as another justification to prevent the law from being overturned. Consequently:

Four of the five Justices (Ginsburg, Sotomayor, Breyer, and Kagan) thought that the individual mandate was justified under the Commerce Clause and Necessary and Proper Claus and didn't believe you needed to reclassify it as a tax.

Four of the five Justices (Scalia, Kennedy, Thomas and Alito) thought that the individual mandate was unconstitutional and was not properly classified as a tax because to deem it such was to "rewrite" the law.

Only one Justice, Roberts, thought that the Individual Mandate was properly classified as a tax. Roberts wrote for himself. Nobody joined his opinion. Ginsburg joined by Sotomayor, Breyer and Kagan wrote a separate concurrence in which they disagreed with Roberts' position but concurred to uphold the law.

In effect, 8 of the 9 Justices didn't buy the "tax" argument. It just so happens that the tie-breaker did. But nobody joined in that decision.

[Ser Scot A Ellison]

Nestor,

I fault them for going on ad nauesum about how the "penalty" was not a tax and then arguing that it was even "in the alternative". Be consistent. It's not that hard.

However, given the way the court split, what is the controling holding? Only one Justice said the Mandate Penalties stand under the 16th Amendment Taxing power. Did Wickard:vomit: get expanded because Roberts concurred in the result?

[TrackerNeil]

Merentha,

Knowing that you are going to have to define the "penalties" as "taxes" to survive Constitutional scrutiny and refusing to call those penalties "taxes" in the run up to the vote on the ACA is a fundamental misrepresentaion (or lie) in my opinion. The Congressional Democrats and the Obama Administration knew they couldn't pass the ACA with new "taxes" included so they refused to concede that the penalties were "taxes". Yet the second the penalties were challenged on a Constitutional basis they called them "taxes" without blinking an eye.

That was a deliberate attempt to mislead. Perhaps the American people should have known better or perhaps we should stop electing people so willing to speak out of both sides of their mouths because I'm well aware that Republicans pull this kind of semantic bullshit too.

Can I ask why any of this matters? I just don't see the point in these arcane discussions about procedure. The ACA was a sight better than what we had previously, so in the end whether it's a tax or a penalty makes no difference.

[NestorMakhnosLovechild]

Nestor,

I fault them for going on ad nauesum about how the "penalty" was not a tax and then arguing that it was even "in the alternative". Be consistent. It's not that hard.

A foolish consistency is the hobgoblin of little minds.

Why the fuck would the Justice Department handicap themselves by NOT making an available legal argument to uphold a signature piece of LEGISLATION because the political arm of the Executive branch engaged in a battle of semantics with his political rivals over how to sell the law to the American people?

1. It's legal malpractice to do so.

2. The Executive branch didn't pass the law. Congress passed the law. You don't handicap yourself legally by binding yourself to some absurd political controversy.

[DanteGabriel]

A foolish consistency is the hobgoblin of little minds.

Why the fuck would the Justice Department handicap themselves by NOT making an available legal argument to uphold a signature piece of LEGISLATION because the political arm of the Executive branch engaged in a battle of semantics with his political rivals over how to sell the law to the American people?

1. It's legal malpractice to do so.

2. The Executive branch didn't pass the law. Congress passed the law. You don't handicap yourself legally by binding yourself to some absurd political controversy.

It's a little funny you have to even make this argument to a guy who's a lawyer himself.

[NestorMakhnosLovechild]

Can I ask why any of this matters? I just don't see the point in these arcane discussions about procedure. The ACA was a sight better than what we had previously, so in the end whether it's a tax or a penalty makes no difference.

Because some people value procedural justice

1. As a valuable thing unto itself

and

2. As an instrumentally valuable safeguard against unchecked government power.

If all we are about are results, why do we have so many constitutional protections for those accused of crimes? Surely we could just force every criminal defendant to testify on his own behalf and to allow Prosecutors to present every piece of evidence, no matter the way in which it was obtained (unconstitutional search and seizure? No problem!).

[aceluby]

This isn't any different than the conservative talking point of "I've never raised taxes" when they instead raised and created new 'fees' instead.

There's a sort of extra craziness that seems to stir in every conservative that comes out when you say the word 'tax', which is why conservatives continually avoid it even though they DO raise taxes, and why the Obama administration didn't use the word 'tax' when discussing the ACA.

Par for the course.

[Ser Scot A Ellison]

Nestor,

Because, like it or not, the Justice Deparment is the represtative, in this case, for the same organization that argued till it was blue in the face that the "penality" was not a tax. The President, a noted Constitutional scholar had to see what little ole' me and FLOW saw that a "tax" would pass Consitutional muster. Perhaps the proper invective is for the political branch refusing to acknowledge what their attornies recognized the "penalty" needed to be a "tax" to be Constitutional.

Tracker,

It matters because I, for one, am very tired of people dodging base dishonesty with bullshit semantic games. I cannot believe our President didn't see what was perfectly obvious to FLOW and myself in the lead up to the ACA vote. Failing to acknowledge that the "penalties" were "taxes" was a dishonest political choice.

[Ser Scot A Ellison]

Ace,

This isn't any different than the conservative talking point of "I've never raised taxes" when they instead raised and created new 'fees' instead.

There's a sort of extra craziness that seems to stir in every conservative that comes out when you say the word 'tax', which is why conservatives continually avoid it even though they DO raise taxes, and why the Obama administration didn't use the word 'tax' when discussing the ACA.

Par for the course.

Exactly!

The fact that it is "par for the course" is what pisses me off.

[davos]

Shryke,

No. Because everyone and their Uncle was claiming the "penalties" were taxes (see the Stephanopolos interview up thread he worked in the Clintion White House for God's sake and was hardly a "hostile" interviewer) and the Administration adamantly refused to admit they were taxes. That's semantics bullshit and misrepresention. Why else could they not call the "penalties" "taxes" until they had to. It is dishonest.

Further, If FLOW and I, hardly noted Constitutinal scholars, conceded in early debates on the mandate penalties that "taxes" would survive Constitutional scrutiny where "penalities" for failure to purchase health insurance would not. The Obama Justice Department filled with very smart people had to know the tact they were going to have to take when the ACA was challenged on the basis that the "Penalties" exceded the power of Congress to regulate commerce.

If there were consistent definitions of taxes and penalties in the legal arena and the public opinion one, the inconsistency on the part of the administration would be problematic. The legal definition of taxes differs from that generally understood by the public. The ramification defining them as taxes also are very different for the legal arguments from the public ones as the public hates anything defined as a tax. There for I don't have a problem with them arguing in one way in front of the courts and another when speaking with the public. Despite using some of the same words, the actual arguments are very different.

It is worth mentioning that I don't like the individual mandate or really care for the ACA. It is a bad solution to the problem of making affordable healthcare readily available. The fact that I view it as a significant improvement over what we had before is not intended in anyway to be praise of the ACA. The American healthcare system was so badly broken before that even an atrocious fix was still a vast improvement. I hold my nose and defend the ACA because going back to what we had before would be a disaster. I keep hoping that at some point this country will have one moment of sanity and put in place a reasonable single payer system but I'm not holding my breath for this to happen.

[NestorMakhnosLovechild]

Nestor,

Because, like it or not, the Justice Deparment is the represtative, in this case, for the same organization that argued till it was blue in the face that the "penality" was not a tax. The President, a noted Constitutional scholar had to see what little ole' me and FLOW saw that a "tax" would pass Consitutional muster. Perhaps the proper invective is for the political branch refusing to acknowledge what their attornies recognized the "penalty" needed to be a "tax" to be Constitutional.

Scott,

Eight of the Nine Justices didn't buy the "tax" argument. Four of them thought it was unnecessary and four of them thought it was just straight-up wrong and not classifiable as a tax. Only one Justice, who wrote for himself and was joined by nobody else in his opinion, thought that it was properly classifiable as a tax and upheld the individual mandate on that basis.

[NestorMakhnosLovechild]

If there were consistent definitions of taxes and penalties in the legal arena and the public opinion one, the inconsistency on the part of the administration would be problematic. The legal definition of taxes differs from that generally understood by the public. The ramification defining them as taxes also are very different for the legal arguments from the public ones as the public hates anything defined as a tax. There for I don't have a problem with them arguing in one way in front of the courts and another when speaking with the public. Despite using some of the same words, the actual arguments are very different.

It is worth mentioning that I don't like the individual mandate or really care for the ACA. It is a bad solution to the problem of making affordable healthcare readily available. The fact that I view it as a significant improvement over what we had before is not intended in anyway to be praise of the ACA. The American healthcare system was so badly broken before that even an atrocious fix was still a vast improvement. I hold my nose and defend the ACA because going back to what we had before would be a disaster. I keep hoping that at some point this country will have one moment of sanity and put in place a reasonable single payer system but I'm not holding my breath for this to happen.

Honestly, in terms of general perception and the general public, I don't even really know what the difference is supposed to be between a "tax" and a "penalty" other than meaningless political rhetoric.

[TrackerNeil]

Tracker,

It matters because I, for one, am very tired of people dodging base dishonesty with bullshit semantic games. I cannot believe our President didn't see what was perfectly obvious to FLOW and myself in the lead up to the ACA vote. Failing to acknowledge that the "penalties" were "taxes" was a dishonest political choice.

Let's say that Barack Obama, Harry Reid, and Nancy Pelosi were to come forward and admit that everything that you say is true and they they are terrible, horrible people who deserve our contempt. Would that satisfy you? What's the goal here?

[Ser Scot A Ellison]

Nestor,

Scott,

Eight of the Nine Justices didn't buy the "tax" argument. Four of them thought it was unnecessary and four of them thought it was just straight-up wrong and not classifiable as a tax. Only one Justice, who wrote for himself and was joined by nobody else in his opinion, thought that it was properly classifiable as a tax and upheld the individual mandate on that basis.

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.

[The Notorious]

It matters because I, for one, am very tired of people dodging base dishonesty with bullshit semantic games.

Scot,

First, it is not as apparent who is playing dishonest bullshit semantic game here .... you could pull a survey here but I don't think you will like the result. :-)

Second, the Obama administration has always claim that the law is justified under the commerce clause. But why do you think that therefore prevent them entirely from arguing in court under the taxation power?

[Ser Scot A Ellison]

Tracker,

Let's say that Barack Obama, Harry Reid, and Nancy Pelosi were to come forward and admit that everything that you say is true and they they are terrible, horrible people who deserve our contempt. Would that satisfy you? What's the goal here?

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

Lev,

Perhaps. But, do you really want to argue that FLOW and I saw something that the President of the United States (and Constitutional scholar) did not?

[The Notorious]

Honestly, in terms of general perception and the general public, I don't even really know what the difference is supposed to be between a "tax" and a "penalty" other than meaningless political rhetoric.

Because some people love inane semantic "gotcha" game. :-)

[Tywin Manderly]

Honestly, in terms of general perception and the general public, I don't even really know what the difference is supposed to be between a "tax" and a "penalty" other than meaningless political rhetoric.

In that perception taxing people is legalalized extortion and therefore bad, but penalties are good because they punish the scroungers and freeloaders.