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To: Hunton Peck
The court ruled that Americans could be required to secure health insurance, but under Congress’s taxing authority, not under the Constitution’s commerce clause. That means the “individual mandate” has been deemed a tax

But, given it's a tax, is it a constitutional tax?

It's not a federal income tax, which would be legal under the 16th Amendment. It's also not a federal excise tax, since it's based merely on existing, not on using something or carrying on some activity. Nor, obviously, is it a tariff.

So, it must be a head tax or capitation, which, according to Article I, must be laid "in proportion to the Census or Enumeration herein before directed to be taken." Any lawyers care to elucidate that?

13 posted on 06/28/2012 2:26:56 PM PDT by cynwoody
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To: cynwoody
So, it must be a head tax or capitation, which, according to Article I, must be laid "in proportion to the Census or Enumeration herein before directed to be taken." Any lawyers care to elucidate that?

Not a lawyer, but Respected Comrade Supreme Roberts addressed this in his opinion:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it. 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.” 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. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. (pages 39-44)
19 posted on 06/28/2012 3:03:58 PM PDT by xeno
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To: cynwoody

But, given it’s a tax, is it a constitutional tax?


The Anti-Injunction law prohibits any Court from addressiing that issue until some part of that Tax is actually collected. If it first takes effect in CY 2014, that would mean that its constitutionality cannot be addressed until April 15, 2015 (or maybe 2 January 2015 for early filers).

Then, I concur with your analysis that it is not covered by any current taxing authority in the Constitution, and that the constitutionality of the tax should be attacked.


22 posted on 06/28/2012 3:15:28 PM PDT by Mack the knife
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