28 June 2012

First thoughts

On the SCOTUS decision today I only have a few thoughts.   The decision is here, and I did a quick scan of it to see what the actual decision was... again this was a comment at Hot Air and for now that is it.  I'm seeing what others have to say, of course, and take my own council not that of fear.

With no other fanfare -

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From p.32 of the decision:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

It MAY be within Congress’s power. MAY?

Oh, and you must take a positive action to purchase said goods he uses as examples. You do not pay a penalty for not purchasing gasoline, or for earning no income. Although if he is making THAT connection then welcome to the mandated penalty for gasoline purchase and to the penalty for not earning income. Won’t those be swell brand, spanking new taxes in the future?

And then this following:

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.

Roberts then repeats this pattern at each instance showing that there is a similarity between a power to tax purchases and the power to tax inactivity.

He looks at the Child Labor Collection Tax which is a tax on those using child labor. An activity. For licensing taxes that is a fee given to those asking for the license to do certain regulated business. It is an activity. Nuclear waste surcharges is for an activity of shipping nuclear waste.

He then goes on to those tax incentives used to encourage conduct, and yet there is a stark difference between conducting such conduct to get a tax break, and not doing something and getting penalized for it. In the former if you do not purchase a home you are not penalized for it, you just do not get the incentives… but I’m sure that under some future Congress not owning a home can be assessed as a tax, so all you renters out there can look forward to that in the future. He also cites taxes on cigarettes, but you pay no taxes on them if you do not purchase them, so I guess we can all start to pony up for cigarettes we don’t buy as future Congress can do that, as well. Won’t that be swell?

By p. 40 we come to this lovely passage looking at the arguments against the tax:

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.
There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

And now you want to know WHY Congress can do this? This follows the above:

Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain,except death and taxes”).

Is this a direct power GRANTED to the United States government by its people? If not it is in Amendments IX and X. Nice job on forgetting that little bit of the Constitution while doing contortions on tax powers to let Congress tax an inactivity that the Chief Justice cannot find a precedent for. Not one thing he cites is a tax power over inactivity and there is no cost for inactivity in any other tax by the federal government.

Don’t let that stop you from inventing one.

ajacksonian on June 28, 2012 at 12:03 PM

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So limiting the Commerce Clause and the  Necessary and Proper Clause.

What was put in its place is the wide-open field of giving Congress the ability to tax ANYTHING YOU DO including doing NOTHING.

Don't earn any income?  They can tax you for that.

Don't have a Volt? They can tax you for that.

No home? They can tax you for that.

Say! No firearms?  They can tax you for that.

This is the power of tyrannical, compulsory taxation and this decision just gave the green light for that.

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