Romney breaks with GOP, says mandate is a penalty, not a tax

http://thehill.com ^ | 07/02/12 02: | the hill

[ATOMIC_PUNK]

Mitt Romney's presidential campaign broke with congressional Republicans on Monday by arguing that the individual mandate upheld by the Supreme Court last week is a penalty, not a tax.

http://thehill.com/video/campaign/235855-romney-team-agrees-with-obama-mandate-not-a-tax

Duck duck who's got the Duck ?

[dead]

Hours after the decision was announced, Romney stated he agreed with the minority opinion in the case, signed by Thomas, Scalia, Alito, and Kennedy.

Almost every conservative in the country also claims to agree with that dissenting opinion.

The minority opinion clearly states that the conservative justices do not agree that the penalty is a tax. Here is the relevant section:

Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends theInternal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal RevenueService (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not.

The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United States, 511 U. S. 600, 618 (1994). Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement.

And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Actof 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives.

Obama wants to claim he agrees with the decision that declared it constitutional because it is a tax, while simultaneously insisting it is not a tax.

You can't simultaneously hold the position that the decision was both right and wrong on whether the penalty is a tax. Obama is trying to get away with that logical absurdity. Romney is not.

[Puppage]

How does the worst president ever suddenly pwn the USSC chief justice?

And, THAT'S the million dollar question, isn't it?

Perhaps someone has a few pictures of the CJ in a compromising position?

[NoLibZone]

Daily KOS is here in huge numbers.

Just as they were in ‘08 and just as they will be 16.

Perfection belongs to Christ- Reagan a great president, was to the left of McCain on social issues.

[Perdogg]

Isn’t U.S. District Judge Robert Hinkle (Clinton appointee) the same judge who wrote the decision on 0bamacare saying the law is severable and said it was okay for Florida to shed illegal voters?

[nathanbedford]

Only Chief Justice Roberts has flip-flopped on calling this penalty a tax more often than has the Commander-In-Chief, Barack Obama.

For Roberts, it is not a tax for the purposes of ripeness but it is a tax for the purposes of constitutional review. Actually Obama did him one better, telling the world and Congress before passage that it was not a tax, sending His Solicitor General to tell the Supreme Court that it was a tax, and now maintaining once again that is not a tax.

Obviously MSNBC is trying to catch out the Romney campaign in an effort to diffuse a potent issue for the Republicans, the braking by Obama on this promise not to impose any new taxes on the middle class. If the Democrats can now upgrade the idea that Romney himself believes that it is not a tax it will be difficult for the Republicans to exploit the issue.

Unless the Republicans draw clear distinctions they will see a nice issue obfuscated. They should abandon this word game in an attempt to exploit the sophistry of Chief Justice Roberts or they are liable to find themselves flip-flopping as often as Roberts and Obama.

In reality the mandate penalty is just that, a penalty and not a tax, of that I personally have no doubt. Romney is correct in maintaining that it is penalty and it is a position consistent with the universally held belief among conservatives that the law is unconstitutional. Put another way, if one accepts that enforcement of the mandate is by way of a tax and not a penalty, the law is constitutional. Therefore, intellectual consistency requires conservatives to maintain that this is a penalty and not a tax.

But intellectual honesty also requires Democrats to concede that if the law is constitutional the extraction of payment in violation of the mandate is a tax. If it is not a tax, Obama care is not constitutional by the vote of five Justices.

However, Republicans can and should draw a distinction between these sums to be paid by a minority of individuals as a penalty for violating the mandate and the mountain of taxes and debts imposed upon the United States taxpayers by this massive new law. There are several taxes within this bill, such as on medical devices, tanning beds, etc. which are in fact taxes and which do in fact affect the middle class. Moreover, the opposition to the law comes from the fact that its extravagance and mismanagement will simply add trillions to the taxpayer's burdens.

Let the Democrats defend the bill on its extravagance and we will win the day just as we have won the public relations battle on this issue to date.

[Jeff Chandler]

I heard he put a dog on a car.

[Godzilla]

Mitt Romney's presidential campaign broke with congressional Republicans on Monday by arguing that the individual mandate upheld by the Supreme Court last week is a penalty, not a tax.

[rogue yam]

The title is wrong Romney didnt say that

Leftists believe that lies promoting leftism are not lies.

The FR He-Man Mitt Haters Club members believe that lies disparaging Mitt Romney are not lies.

[rogue yam]

This is more pro-0bamatard spin.

Thus it will be most welcome here on Free Republic.

[MCF]

“Yeah, well, Romney can stuff it. Go Obama!
That will teach them.”

It's not that, it's just when when you meet an unchangeable obstacle don't beat your head against it. Go with what you you've got. It was ruled a tax so cram it down the Dems throat as as the largest tax increase in U.S. history. Instead he is doing commentary on a game that is over. It makes you shake your head.

[dragnet2]

It’s a penalty, it’s a plan, an insurance fee, it’s a toll, it’s a tax, it’s a levy, an assessment, an obligation, a fine, it’s a tariff, a commission, an expense, an imposition..

Good grief!

[Venturer]

If Conservatives admit that this is a penalty and not a tax we have to admit that the Supreme Court purposely with malice and forethought deemed to illegally come down against the Constitution which gives them their power.

In other words they should be impeached for violating their oath, they should be removed from the court. They are not Supreme Court Judges they are traitors of the vilest kind.

[Psalm 144]

“So he’s a Conservative-Republican-Liberal-Democrat ? “

Well, that depends. Would you like that? He’ll be whatever you want him to be.

[Will88]

Romney said he agreed with the dissenting opinions on the court, that the mandate is a penalty and not a tax. And practically everyone agrees with that, even most Dims.

But now that the Dims are accepting the court win where the mandate is a tax, then it’s perfectly fair for it to be attacked during the campaign as a tax, and I expect Romney will join attacking it as a tax very soon.

This publication is playing word games and trying to discredit Romney when everyone knows that the entire situation is very ambiguous.

[WMarshal]

 

I find it interesting that the SCOTUS dissenting opinion explicitly mentions the British tax on the US colonies that led to the Revolutionary War: “Taxes have never been popular, see, e.g., Stamp Actof 1765.”

Was this a message from the conservative members that the only real remedy to this travesty is revolution?

[Diogenesis]

THE GREATEST MOMENT IN OBAMACARE AND DEATHPANELS.

[Monorprise]

“The title is wrong Romney didnt say that”

Too bad, Mitt would be correct, despite the incoherent babbling of the traitor Roberts. The individual mandate is indeed a mandate with a penalty not a tax. It says so 18 times in the act of abomination. No federal injustice has the right to ignore that.

Frankly i don’t know what the GOP is hoping to gain from relabeling it a tax, as if a Tax is less popular than an individual mandate.

[FlipWilson]

Quote “So he’s a Conservative-Republican-Liberal-Democrat?”

Or you are a “swallow whatever headline the MSM throws at you as gospel and trash first, read later” Freeper.
Of course this is a penalty. As others have already said, Roberts agreed with this at first in order to get around the anti-injunction statutue problem and then promptly found it to be a tax to get around the unconstitutional problem. Speaking of penalties, can we refer to the Supreme Court as the “Robert’s Penalty” imposed on the American People?

[Will88]

All water over the dam. If Romney wins, and we hold the House and win the Senate, then Obamacare will very probably be repealed. If Romney loses, we’ll have Obamacare and anything Obama can imagine to put in more executive orders and agency regulations.

[Thane_Banquo]

Where in the constitution does it say the government has the right to penalize one for NOT spending money on something they DON’T want?

Even if it was a tax and not a penalty, it would still be unconstitutional on the grounds you stated. However, Roberts is wrong and Romney (as much as it pains me to say this) is right: That damned monstrosity is NOT a tax, it is a penalty. Therefore, Roberts's stated reason for it being constitutional, is wrong. But in addition, it is unconstitutional even if it is a tax, and therefore Roberts would have been wrong there if he had tried that tactic.

Bottom line, Roberts should just have written in his opinion: "We in the Ruling Class have decided this thing is okay, so therefore it's okay. Shut up and go away."