The White House is correct: It’s a punishment for disobedience. Let that sink in for a moment.
The political problem for the White House is that as of last Thursday, the penalty is legally a tax.
The much bigger problem for Americans is that as of last Thursday, Congress can now punish them for disobedience for any act or even any failure to act, either by imposing a tax on doing whatever Congress does not want done, or by imposing a tax on not doing whatever Congress does want you to do.
To be more specific, the problems with the Roberts opinion are the following:
1) Congress didn’t think it was enacting either a tax OR a tax credit. They didn’t frame it or structure it that way. That’s why they didn’t ensure that the bill originated in the House, as the Constitution requires of any bill that raises revenue. That issue will almost certainly be litigated, now. No one bothered before, because no one thought it was a tax.
2) Had Congress intended to use a tax credit to achieve its ends, it would have had to provide a payment to everyone who both qualified for and claimed the credit. So it would have had to either increase taxes or reduce other spending in order to be revenue neutral, or borrow more money otherwise. All of those choices would have had political consequences that could well have prevented the bill from ever passing. And the “tax” is not a credit, not even per the Court. You can’t apply for it and get money back.
3) Per the Court, the penalty is an excise tax. The Constitution grants Congress the power to lay and collect duties, imposts and excises, with the only limitation being that all such must be uniform throughout the United States. The Supreme Court previously also imposed the limitation that the rate of the tax cannot be so high as to be clearly nothing but “punitive.” Note, however, that the Court won’t save you from taxes meant as punishment for disobedience, provided the rate isn’t “too high” (which isn’t defined.)
But an excise tax, by definition up until Thursday, is a tax on an event. Now it’s also a tax on an event that didn’t occur, thanks to Chief Justice Roberts. Semantically, that’s a fine imposed by the legislature directly on those who must pay it, without those who are required to pay it having first committed a crime defined by law as such, and then being convicted of that crime by a court, and then being sentenced by the court to paying some fine that the law allows.
There’s a term for laws that impose penalties that way, without due process of law, where the one to be punished can not defend himself in court, and can not argue that it’s Unconstitutional to punish him for the particular actions for which he is being civilly sued or criminally charged. Such laws are called bills of attainder.
Nice post.
And “Bills of Attainder” are prohibited by the Constitution, right?
Constitution, Article I, Section 9; Clause 3 is “No Bill of Attainder or ex post facto Law shall be passed”.
The bill DID originate in the House.
Regardless of what one calls the individual mandate there are lots of other straightforward taxes (like the tax on medical devices) that are in the bill and it was treated as a revenue-raising bill in procedure at the time.
It is now official sanction and permissible to use the governments power to tax and government taxing agencies to harasses, coercive, punish and destroy a citizens for any reason they see fit
Consider the harassment of the Tea party groups by the IRS
Consider Obama's statement about coal power plans..We will not stop you from builder them...but we will tax you out of existence..
The left, when in power, uses the power to tax as a weapon
It is with some irony that the original American revolution was keyed by Parliament using taxes as a coercive force and punishment on the American colonies
Again I say a new Constitution Amendment is a must now.... stated that the power granted to tax may NOT BE USE AS A coercive force on the people
ObamaCare was a bill originally passed by the House. It was called "Service Members Home Ownership Tax Act" and was subsequently amended by the Senate to replace that text with the text of ObamaCare. The Dems knew exactly what they were doing and got away with it.