Yesterday's ACA opinions were interesting in that they covered a lot of ground -- standing (not surprising a former Scalia clerk wrote that paper concerned with too loose standing requirements), taxation issues (both pursuant to statutory jurisdiction issues and on the merits) and matters of interstate commerce. Toss in a brief reference to other liberty interests dismissed as frivolous, the only major issue not covered is the Tenth Amendment concerns involving Medicaid rules and such (which even the 11th Circuit, that struck down the insurance provision deemed unconvincing). If it wanted to, it even could be used as an avoidance mechanism by the Supreme Court until the provision actually is put in place. After all, conservatives think that should be true for many abortion regulations and such. As compared to waiting until after actual women are harmed, this surely to be underenforced fiscal measure that might be changed before it is applied is where waiting makes a whole lot of sense.
Volokh Conspiracy has been a place to go to read various accounts against the law, or rather, mainly one specific aspect of it. The so-called "individual mandate," though the word "mandate" is not in there (the same people very concerned about using the word "tax" don't find this too troublesome; others keep on saying "everyone" has to "purchase" insurance under the provision, though this is wrong too). Orin Kerr, who coyly said he doesn't like current Commerce Clause jurisprudence but won't say how he would change it, defends its constitutionality under current law. He is on record against the provision as policy. Others do not. Below is my answer to one of the constitutional opponents on the lesser used tax defense, first addressing a comment made on Virginia's standing.
The “tax” here is like many types of tax policies where someone has to pay more money (like the “marriage penalty”) if they do or do not do something. Like them, they can depend on such things as income or purchase of certain items or certain choices made. Tax policy “force” or rather encourage in various ways people to buy many items. I realize many don’t like these policies very much, the opposition to the marriage um penalty is well known, but they are both constitutional and not unlimited, both politically and constitutionally.
If a tax is ONLY applied if someone makes a certain income, yes, it is tax based on income. BTW, fines for jaywalking — unlike here — are not merely collected via the tax system. The tax also can be seen as an excise, since arises from certain choices and/or actions one makes.
The tax is not on those merely existing, like a direct tax, but is based on certain actions and choices done. The economic activity here is buying insurance or making any number of other economic activities and transactions. The dissent in the Liberty case underlined the fiction that no economic activity was present here.
The concurring opinion in the Liberty case is convincing. The Commerce Clause argument might be more popular or stronger (debatable) and it is enough. The overlap is apparent anyway, since again we get claims of no economic activity etc.
Anyway, in the past thread, a complaint was made that these rulings weren’t taken seriously because it didn’t strike anything down. It’s appreciated the other side put in their .02.
[The threads were still pretty inactive vis-a-vis anti-ACA rulings, even with an interesting additional issue added to the mix here. Artificial line drawing on what is a "tax" is the most recent addition. We fought a war over this folks!']
Volokh Conspiracy has been a place to go to read various accounts against the law, or rather, mainly one specific aspect of it. The so-called "individual mandate," though the word "mandate" is not in there (the same people very concerned about using the word "tax" don't find this too troublesome; others keep on saying "everyone" has to "purchase" insurance under the provision, though this is wrong too). Orin Kerr, who coyly said he doesn't like current Commerce Clause jurisprudence but won't say how he would change it, defends its constitutionality under current law. He is on record against the provision as policy. Others do not. Below is my answer to one of the constitutional opponents on the lesser used tax defense, first addressing a comment made on Virginia's standing.
It could have taken advantage of the “special solicitude” for state governments that the Supreme Court established in Massachusetts v. EPA.The “special solicitude” there wasn’t freestanding but connected to the state’s own concern for the effects on their territory. The same interest is not present here. Preventing states from trying to nullify federal laws in this fashion can very well have some bite even if alternative litigation is present to address the provision. See, e.g., an article by an ex-Scalia clerk on the importance of this litigation. The alternative is that states could challenge any number of federal regulations, from the left to the right, via mere declaratory pieces of legislation that in effect makes individual states constitutional law courts. Not really what Art. III had in mind.
The “tax” here is like many types of tax policies where someone has to pay more money (like the “marriage penalty”) if they do or do not do something. Like them, they can depend on such things as income or purchase of certain items or certain choices made. Tax policy “force” or rather encourage in various ways people to buy many items. I realize many don’t like these policies very much, the opposition to the marriage um penalty is well known, but they are both constitutional and not unlimited, both politically and constitutionally.
If a tax is ONLY applied if someone makes a certain income, yes, it is tax based on income. BTW, fines for jaywalking — unlike here — are not merely collected via the tax system. The tax also can be seen as an excise, since arises from certain choices and/or actions one makes.
The tax is not on those merely existing, like a direct tax, but is based on certain actions and choices done. The economic activity here is buying insurance or making any number of other economic activities and transactions. The dissent in the Liberty case underlined the fiction that no economic activity was present here.
The concurring opinion in the Liberty case is convincing. The Commerce Clause argument might be more popular or stronger (debatable) and it is enough. The overlap is apparent anyway, since again we get claims of no economic activity etc.
Anyway, in the past thread, a complaint was made that these rulings weren’t taken seriously because it didn’t strike anything down. It’s appreciated the other side put in their .02.
[The threads were still pretty inactive vis-a-vis anti-ACA rulings, even with an interesting additional issue added to the mix here. Artificial line drawing on what is a "tax" is the most recent addition. We fought a war over this folks!']