To: publiusF27
Sanchez and Sonzinsky specifically say that they are sustaining the taxing power, and that what is before them was NOT a regulatory penalty. Would you mind providing me with the quote where that is specifically said? What I read in Sonzinsky was, "Every tax is in some measure regulatory."
The question is rhetorical, but not legally meaningless.
Sonzinsky said otherwise: "Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts."
I note that you did not address this point, nor the significance of it:
Okay, the district court judge, in a memorandum on a motion, said that "the penalty here is not a tax, and a regulatory penalty must be supported by an enumerated power other than the taxing power." The purported absence of a single word seems to be a very slim reed for him to use to arrive at that conclusion. Apparently the language says neither "regulatory penalty" nor "tax penalty", so he concludes that it must be a regulatory penalty. He then asserts that a "regulatory penalty" can't be imposed by a tax, apparently based on some penumbral emanation he intuited that congress can't simultaneously exercise multiple powers. (Just a quick reminder here: "Every tax is in some measure regulatory.")
Didn't I already just finish pointing out to you that the Supreme Court in Helvering and in Flemming refused to hold Congress subject to inflexible language requirements? Didn't I point out that Social Security was premised on the General Welfare, as well as on taxing powers? If Social Security can stand on the General Welfare, how then is that different from the healthcare bill? Far from failing to address your arguments, I anticipated them and tried to keep them on point with the Social Security vs healthcare question that I previously raised.
Did you not see that? Or did you not want to?
35 posted on
10/21/2010 9:59:19 AM PDT by
Mojave
(Ignorant and stoned - Obama's natural constituency.)
To: Mojave
In 1925 in Linder v US, the Court said:
The declared object of the Narcotic Law is to provide revenue, and this Court has held that whatever additional moral end it may have in view must "be reached only through a revenue measure and within the limits of a revenue measure." United States v. Jin Fuey Moy, 241 U. S. 394, 241 U. S. 402. Congress cannot, under the pretext of executing delegated power, pass laws for the accomplishment of objects not intrusted to the federal government.
And when might they be doing that? The court seems to think that it's when a "tax" is a "penalty" and it doesn't even have to say "regulatory" in front of it.
In 1937, in Sonzinsky vs US, they said:
Petitioner does not deny that Congress may tax his business as a dealer in firearms. He insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government. To establish its penal and prohibitive character, he relies on the amounts of the tax imposed by § 2 on dealers, manufacturers, and importers, and of the tax imposed by § 3 on each transfer of a "firearm," payable by the transferor. The cumulative effect on the distribution of a limited class of firearms of relatively small value by the successive imposition of different taxes, one on the business of the importer or manufacturer, another on that of the dealer, and a third on the transfer to a buyer, is said to be prohibitive in effect, and to disclose unmistakably the legislative purpose to regulate, rather than to tax.
The case is not one where the statute contains regulatory provisions related to a purported tax in such a way as has enabled this Court to say in other cases that the latter is a penalty resorted to as a means of enforcing the regulations.
Meaning they are giving the "penalty" a pass because it's a tax, not a penalty.
In 1950 in US v Sanchez, they said:
In their motion to dismiss, which was granted without opinion, defendants attacked the constitutionality of this subsection on the ground that it levied a penalty, not a tax. The validity of this levy is the issue here.
...
Hence, the attack here rests on the regulatory character and prohibitive burden of the section, as well as the penal nature of the imposition. But, despite the regulatory effect and the close resemblance to a penalty, it does not follow that the levy is invalid.
Again, upheld because it closely resembles a penalty, but is not one.
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