1) The Commerce Clause argument for the individual insurance mandate was rejected.
Correct: But irrelevant, given the next "tax" holding.
2) The argument that Article I, section 8 grants Congress the power to impose a tax on those who don't have health insurance was affirmed.
Incorrect: Congress was granted the power to tax events that actually occur--not ones that don't [Excise Tax]. It was not granted any power to tax a failure to do business, nor the absence of commercial activity. By the Court's reasoning in this decision, Congress could now tax the failure to earn a certain level of income, or a failure to carry a baby to term, or the failure of a non-citizen resident to obtain a green cared, or the failure by a church to perform gay marriages. The possibilities are endless.
The power to tax any failure to act is the same as the power to impose fines that compel any action.
When a legislature imposes a fine or other punishment directly on people—not because they've committed a crime, have been tried by a court, found guilty, and then had the punishment imposed by the court as allowed by law, but simply because the legislature enacts a law that dictates it—that's known as a bill of attainder. Such laws that impose punishments directly without due process--without a trial and subsequent conviction--are Unconstitutional, precisely because such bills of attainder are tyrannical and dictatorial.
The US is now officially a tyranny with no limits on its power, because the Supreme Court has now removed any and all Constitutional limits regarding what may be taxed. And the Constitution includes no specific limits on the maximum magnitude of taxes—they can even be higher than 100%. The only limits to the size of such taxes is whatever the the Supreme Court decides is so large that the intent of the tax is clearly punitive, and not intended to raise revenue.
3) The mandatory expansion of Medicare imposed on the States was rejected.
Correct: But irrelevant, given the "tax" holding. Congress can simply tax States that don't comply.
The relevant Constitutional text:
Article I, section 2:
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons"
That section was modified by 16th Amendment, but only with respect to income taxes on earnings from the ownership of property, such as rents, royalties, dividends and interest. Per the Supreme Court, Congress has always had the power to tax wages, salaries, commissions and fees for service, under the power to lay and collect excise taxes.
The Court had ruled in Pollock that taxes on income from property [only that] were a direct tax, and so had to be apportioned among the States. It was that ruling that led to the alleged [but disputed] ratification of the 16th Amendment.
Per the United States Court of Appeals for the District of Columbia Circuit, "Only three taxes are definitely known to be direct: (1) a capitation [ . . . ], (2) a tax upon real property, and (3) a tax upon personal property." [Opinion on rehearing, July 3, 2007, p. 20, Murphy v. Internal Revenue Service and United States, case no. 05-5139, United States Court of Appeals for the District of Columbia Circuit, 2007-2 U.S. Tax Cas. (CCH) paragr. 50,531 (D.C. Cir. 2007)]
Whatever isn't a direct tax is considered to be an indirect tax--and vice versa.
Article I, section 8:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States"
In the U.S. constitutional law sense:
A "duty" is a tax imposed on items imported into the United States, and an "impost" is a "duty" imposed specifically on items imported for commerce, as opposed to personal items brought home by individuals for their private use.
An "excise tax" is essentially an event tax (as opposed to a tax on the state of being of a person or thing). So a tax on the purchase of insurance would be an excise tax.
An excise means any tax on the occurrence of an event other than:
1) A tax charged to the owner of property based on the market value of the property (e.g., real estate "property taxes.")
2) A tax imposed on a person for existing or residing in a territory ("head" or "capitation" tax.) These are extremely rare in the US.
3) An income tax paid directly to the government on income;
4) An impost or duty; or
5) A sales tax which is paid on all sales transactions (usually with some items exempt.)
However, a tax on not purchasing something cannot be any sort of tax at all:
It is not a direct tax: it's not a capitation tax nor a tax on owning either real or personal property.
And it's not an impost or duty, obviously.
Nor is it an excise tax, because an excise tax, by definition, requires that a taxable event must occur that is the subject of the tax.
Your exposition of why this "tax" is unconstitutional is excellent.
A great post from you.
The individual mandate survived only as a tax.
Whether or not that tax was constitutional
was not a question that was put before the court.
And since the tax will not become effective until 2014,
it likely can not be challenged on those grounds until then.
I have two questions...
Does the fact that amount of the “tax” is income-based allow it to fall under the provisions of the 16th?
How is the federal gasoline tax classified, is it an excise tax?
Thanks.
Mark Levin could really run with that on his show.