Supreme Court and the Individual Health Insurance Mandate

[anvi]

She noted that the severability of the law was "one question" the Court had to face, which was true from the beginning.  So, I don't think that tips a hand on anything.  She probably said it just so she could make the "broccoli" joke.

But I'm pretty sure the court will sever the law in any case.

[anvi]

No, judicial discretion is a power of the court, and does not render it into a legislative body.  In the absence of a severability clause, the court has discretion to determine which of the law's provisions are or are not severable from the "mandate."  They would have to base that finding on the content of the remainder of the law, not just on the length of the bill and the fact that they don't want to play today.  So with regard to that content, what, for example, do the provisions dealing with eventual generic offerings of biologic drugs, Preventive Services, an indoor tanning tax, new medical fraud deduction methods, the Medicare part-D rebate, the reduction in Medicare Advantage subsidization, or the health insurance exchanges have to do with the mandate?  

[anvi]

Beet is vindicated. The mandate is a tax!  Who knew?     

Yeah, Beet definitely wins first prize.  Torie comes in second.  I finished last, which was, you know, fairly predictable.  After another listen to Kennedy's comments during oral arguments the other day, I'm not surprised at all he voted for a wholesale strikedown.  Roberts saying that, even though Congress didn't call it a tax, it is one, sure surprised me. 

[anvi]

Well now, hold on; I do finish last, but I get a few points...

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

"b.)  Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penal- ties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that pay- ment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is un- lawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language— stating that individuals “shall” obtain insurance or pay a “penalty”— does not require reading §5000A as punishing unlawful conduct."

[anvi]

To be honest, Mikado, I don't know.  Tax evasion and filing false returns are felonies and not filing any taxes when they are owed is a misdemeanor.  In contrast, not paying the "penalty," what we have to call a tax now, for failing to have insurance carries no legal implications.  Roberts found some significance in that, although, in thinking about it now, I'm not sure what kind.  Torie, can you help?  I don't want to claim points I didn't earn.  

I'm reading through Roberts' opinion, and I'm really impressed.  He protects federalism and gives Congress all the latitude to tax that precedent allows.  Really, I'm not very smart and I'm not a lawyer, but reading through this makes me wish I'd gone to law school.  Really impressive.  

[anvi]

It's also an object lesson: when defending yourself, always make more than one argument!    Wish I'd thought of that in my first marriage. 

[anvi]

Never mind my own bs above.  Roberts was talking about the fact that not buying insurance is not a crime under the law; he wasn't talking about the lack of enforcement provisions on the tax.  My bad.  No points for me.  I'm going to desist from making observations about legal issues from now on, since I clearly don't understand them. 

[anvi]

Just finished reading all the opinions.  Man, Kennedy, Scalia, Alito and Thomas really take Roberts to task for his tax interpretation, without naming him.

[anvi]

'Taxed to Death' just seems to have a more relative meaning today. go figure...

Yeah, Americans are oppressed to death by taxes.  You should live in another country where even middle-class people pay far higher provincial and consumption taxes, and still live a decent life in exchange for the benefits they get in return, and see what you think then.

[anvi]

Would that be the one that's debt free, open borders and they're own military defending that decent life? It can't be the one(s) that just where promised another bail out today.

But now we're changing the subject and talking about spending decisions and how they're financed.  I'm talking about the oft-expressed political sentiment in America that, if there is any one thing that ruins our lives, it's taxes.  I certainly understand that upward adjustment of tax rates makes things harder for businesses.  But I've had family members run businesses and worked in one of them when I was younger, and of the ones that failed, taxes, even when they were much higher than they are now, really weren't the death blow, not even close to it.  I'm saying that, once one factors everything in, Americans pay far less in taxes than most other citizens do in a vast majority of industrialized countries.  But we also seem to complain more bitterly about taxes than almost anyone else.     

[anvi]

Good luck with the above anvi. It will be interesting to see how you respond. 

I haven't looked at this board for about a week and just saw the reply above.  So, Torie, are you daring me?    Well, I'll probably fail, but I can't just leave an emoticon like that stand there.

First, t_host1, if you agreed with your buddies that you would put up $20 for everyone's initial expenses, but when you got to the bar and decided not to drink yourself, would you ask for your money back just because your friends were doing the drinking?  If that's so, I don't think anyone else will have to have make up rules for your future drinking parties; you're buddies will stop asking you to come along pretty soon.
Secondly, is Obama really an uninvited guest who is insisting on managing your habits?  In 2008, he got almost 70 million invitations from your other drinking buddies do to administrative work. If you and they want to un-invite him in November, that's totally fine.  But if someone hired you and then told you you weren't ever hired in the first place, I'd say it was the guy doing the hiring that was being unfair.
As far as the last part of your analogy with paying Obama's pension, looks to me like that's done when you go to bar too!  Maybe go to a volunteer bar, if you can find one.
I'm not sure what you're asking with your last question.  If it's a question about me, then...I got the gift of life from my parents.  And no matter how hard I work and purposely pursue happiness through my own efforts, I've always needed help from others.  If you're experience is different, then I'll wait to read your autobiography, because that would be quite unique.  If you're talking about debt-burdened countries instead, well, the U.S. is hardly in a position to point fingers.  The fact that we put so little in is related to how much we seek from others.

[anvi]

Torie, I didn't address cross-subsidization in my response above just because I couldn't find anything in t_host1's post about it, although maybe I missed it. I thought it had drifted into a more general debate about taxes, so that's what I was focusing on.   I do think the cross-subsidization issue you've raised for a while is a legit one, and one way or another it will have to be rectified.  My interest in ACA as a matter of law before SCOTUS was that I wanted to see a mandate, or something that functions like one, survive constitutional challenges, and that not for the sake of Obamacare itself, but for the sake of implementing a viable framework for near-univeral coverage in our country at some point. 

[anvi]

I agree with your criticisms in the last paragraph, Torie.  As to the text, yeah, it was fun to read, though I'm not sure if I did all the decoding correctly.