Affordable Care Act at the Supreme Court

[MinDonner]

Isn't car insurance already mandatory? Did that cause the slippery slope to start slipping? How about all the other countries with UHC, are they now mandating compulsory Chevy ownership?

[Tempra]

Isn't car insurance already mandatory? Did that cause the slippery slope to start slipping? How about all the other countries with UHC, are they now mandating compulsory Chevy ownership?

It is only mandatory for those who own a car.

[Ser Scot A Ellison]

Cyrano,

When Justice Alito asked about burial insurance yesterday during Orals Justice Breyer's reaponse was, "why shouldn't government have that power?". The point I'm trying to make is that if the mandate is within Congress' power there is no limiting principle that can be expressed as to Congress' power to regulate commerce. Anything, including not paticipating in commerce, would be subject to legal sanction. That is too much power in my opinion.

[eta]

As for your tax quip at the time the 16th amendment was debated some wanted to cap the income tax at 10% of income. They were poo pooed because "it would never go above 10%".

Tempra,

Actually, you don't have to have insurance if you own a car. You have to have insurance if you drive a car. Usually that's coextensive but not always.

[Lord O' Bones]

Oh no, a guy on the internet who routinely expresses and/or defends horrible ideas and views doesn't think I'm reasonable?

Oh gods, whatever shall I do!

Do nothing dramatic, of course. I know that isn't your thing. Being all... dramatic with the drama and dramatic stuff.

There is hardly only one monolithic personage on this board or any other place anywhere that is alone in thinking Al Gore was a fucking asshole and an incredibly terrible prospect for President.

Start with me.

[Guest Raidne]

After hearing about oral arguments, I think the mandate is doomed. Hopefully I'm wrong, but you're basically betting against Kennedy's desire to shape the history of Commerce Clause jurisprudence. Good luck.

[Tempra]

And none of the justices seemed keen on the taxing power argument from the Gov't.

[Lord O' Bones]

GodDAMNIT!

Here I was trying to have a human conversation and maybe get red-assed with possum and I'm knee deep in lawyer hell, again!?

[ljkeane]

Am I right in thinking that if the law had been clearly phrased in terms of it being a tax there's not much question it would have been ok?

[Ser Scot A Ellison]

lkjeane,

In my opinion. It the "mandate" had been described as a tax it stood a much greater chance of passing Constitutional muster. However, it would have been difficult for the Democrats to push through politically.

[IheartTesla]

Cyrano,

When Justice Alito asked about burial insurance yesterday during Orals Justice Breyer's reaponse was, "why shouldn't government have that power?". The point I'm trying to make is that if the mandate is within Congress' power there is no limiting principle that can be expressed as to Congress' power to regulate commerce. Anything, including not paticipating in commerce, would be subject to legal sanction. That is too much power in my opinion.

[eta]

As for your tax quip at the time the 16th amendment was debated some wanted to cap the income tax at 10% of income. They were poo pooed because "it would never go above 10%".

Is there anything that prevents Congress from charging you 100% income tax?

[Ser Scot A Ellison]

Cryano,

Political preasure. Regardless, when the 16th amendment was passed it was with the unwritten understanding the income tax would only apply to the "rich" and that it would always be less than 10% of income. Now it hasn't gone all the way to 100% of income but it has gone much higher and with much greater breadth than was conceived when the income tax amendment was passed.

[Guest Raidne]

And none of the justices seemed keen on the taxing power argument from the Gov't.

No. Agreed.

Am I right in thinking that if the law had been clearly phrased in terms of it being a tax there's not much question it would have been ok?

If the law had been phrased as a "tax" this suit would be barred by the anti-injunction act. We'd have to wait until someone sued for having to actually pay the penalty. Then, I really don't know. The part of oral arguments that makes me think it's a wash is where they started talking about what would be illegal - not getting health insurance or not paying the penalty? To me, not getting health insurance is perfectly legal as long as you pay the penalty, but the Justices did not seem to think so.

I am okay with saying that raising everyone's taxes and instituting a credit for people who have health insurance would have been A-OK.

Lastly, if people don't want to hear a bunch of law talk, get out of the thread that is about the fucking law before I start bitching about how boring baseball is in the sports threads. This is what that sounds like to me:

Cyrano: "OMG, I can't believe Eli Manning didn't try to steal that base during the twenty-fifth inning. Baseball sucks."

Bale: Truth to power brother.

[ljkeane]

lkjeane,

In my opinion. It the "mandate" had been described as a tax it stood a much greater chance of passing Constitutional muster. However, it would have been difficult for the Democrats to push through politically.

So basically the government does have the power to say 'get health insurance or we'll take x amount of money off you', the question is whether they're required to explicitly refer to the penalty as a tax? That seems like a rather stupid issue for a court to be overruling the democratically elected representatives of the people over.

[awesome possum]

You could make that argument about almost anything. For instance, making you pay income tax could have let the Feds down the slippery slope to handing over your first born child as collateral on future taxes....but that didnt happen. I'm sure there were some guiding principles that prevented that from happening.

Slippery slope is pretty much all that's left, since the argument, "we shouldn't insure the poor who we basically already insure anyway when they make their free trips to the emergency room" is pretty stupid.

There is hardly only one monolithic personage on this board or any other place anywhere that is alone in thinking Al Gore was a fucking asshole and an incredibly terrible prospect for President.

Start with me.

Hey, I agree with you. Gore was and is an asshole and a terrible prospect for President. And a terrible president still would have been better than Dubya.

[Guest Raidne]

So basically the government does have the power to say 'get health insurance or we'll take x amount of money off you', the question is whether they're required to explicitly refer to the penalty as a tax? That seems like a rather stupid issue for a court to be overruling the democratically elected representatives of the people over.

No. A lot of commentators keep phrasing it this way, but it's just wrong. There is no holding in the law anywhere that either (1) something is what Congress says it is or (2) the authority for a law is what Congress says it is. That's why the Court was asking all the questions it was - trying to figure out whether the penalty really is a "tax" or a "penalty" assessed when taxes are due, i.e. is it a punishment, or not? They apparently seem to think that it is meant to be a punishment and that not getting health insurance is a violation of law. In other words, they think it's more like not paying your taxes on time than it is like paying your taxes.

[IheartTesla]

Cryano,

Political preasure. Regardless, when the 16th amendment was passed it was with the unwritten understanding the income tax would only apply to the "rich" and that it would always be less than 10% of income. Now it hasn't gone all the way to 100% of income but it has gone much higher and with much greater breadth than was conceived when the income tax amendment was passed.

Well, then you will grant that there are other principles that come into play even though Congress may have unbridled power regarding certain aspects of commerce. At any rate, it would be best to treat health insurance as a special case and deal with the next special case as it comes along. That would be the limiting principle.

[Lord O' Bones]

Lastly, if people don't want to hear a bunch of law talk, get out of the thread that is about the fucking law before I start bitching about how boring baseball is in the sports threads.

No need to get crazy. There are non-lawyers also pulling my pony-tails for that.

Hey, I agree with you. Gore was and is an asshole and a terrible prospect for President. And a terrible president still would have been better than Dubya.

John McCain might not have been a terrible President. In 2000. As it was, I abstained from the Presidential voting faced with Al fucking Gore and some dickhead I only knew of because of his father.

[ljkeane]

There is no holding in the law anywhere that either (1) something is what Congress says it is or (2) the authority for a law is what Congress says it is.

Sorry I don't follow what you mean with this.

That's why the Court was asking all the questions it was - trying to figure out whether the penalty really is a "tax" or a "penalty" assessed when taxes are due, i.e. is it a punishment, or not? They apparently seem to think that it is meant to be a punishment and that not getting health insurance is a violation of law. In other words, they think it's more like not paying your taxes on time than it is like paying your taxes.

If the outcome either way is that you have to pay x amount of money to the government if you don't have health insurance what difference does it make?

[Guest Raidne]

No need to get crazy.

Seriously. We all know there's no way I'm going into the sports threads.

Cyr, please explain to me how this "special case" conception should work. How do we know when something is a special case, such that it should not be subject to the law?

ljkeane - There is nothing is American law that says that something is a tax or is not a tax because Congress did or did not call it a tax, to rephrase. As for the latter part, if you got a $100 ticket for speeding, were you taxed?

ETA: LOL, NM, figured it out.

[Ser Scot A Ellison]

Cyrano,

I've never denied that political pressure can be brought to bear to limit application of the power of Government. I'm simply not comfortable with political pressure being the only check on the application of governmwnt power.