March 29, 2010

Lawprof Jack Balkin says the individual mandate is constitutional because it's a tax.

Interesting argument:
The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance....

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior....
But will the Obama administration want to defend the mandate this way? Millions of Americans are getting a big new tax hit? It's not just a question of whether this argument will work in court. It's a question of whether Obama wants to shout out loud that the supposedly beneficent new law is a huge new tax on the very people he assured — over and over — that he would not raise taxes on.



"I can make a firm pledge under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes."

ANY FORM.

102 comments:

Peter V. Bella said...

Obama lied.

Hoosier Daddy said...

But will the Obama administration want to defend the mandate this way?

Sure and it will be easy too.

Blame Bush.

Gahrie said...

I've addressed this argument:


http://gahrie.blogspot.com/2010/03/is-obamacare-constitutional.html

Jason said...

It's the biggest "Flounder-like moment' in the history of the world!!!!!!111!!!!!11!eleventy!!1!!!

bagoh20 said...

"It's a question of whether Obama wants to shout out loud that the supposedly beneficent new law is a huge new tax on the very people he assured — over and over — that he would not raise taxes on."

Oh, he promised not to? Well then he won't do it. You can trust this guy to keep his word, and if not, at least he's very "thoughtful and pragmatic."

Pastafarian said...

OK, if the penalty isn't a penalty, but a tax, then I suppose they could say that the expense of your insurance premium is deductible, relieving those with insurance from this particular tax burden.

Except those people often don't pay their own premium -- their employer does.

But let's suppose that this is what this guy means. Then how in hell is this not a "head" tax (a tax on every person)?

SteveR said...

Well he's already broken that promise and many others, and certainly will again. His supporters will try to explain it all away, probably under the broad application, "It is George Bush's fault".

For the most part the media will let them get away with it.

Julius "Ray-the-Raghead" Hoffman said...

I see no trouble in presenting the mandate as a tax.

It is a tax.

You pay it on your tax return.

...

And since when has a politician ever lived up to his campaign promises about not raising taxes? You should have known he wouldn't. I should have known he wouldn't.

We should never trust the campaign promises of a Democrat or a Republican. Never.

Mike said...
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bagoh20 said...

You know, I don't really remember him campaigning on or being touted as honest or reliable about his promises. So let's just stop pretending he is obligated to keep his word. That's not what we voted for. That was the other guy, the one who kept his word even under years of painful daily torture. But, he nuts.

Pastafarian said...

And if this is a tax on behavior, then what is the behavior being taxed? Breathing?

How is "not purchasing X" a behavior that can be taxed?

Maybe I'm alone here, but I sure do wish we had some less intelligent people running things. People not so prone to proving how intelligent they are by twisting language and logic into six-dimensional pretzels to justify their shitting all over the constitution.

Shanna said...

The "no taxes on those making blahblahblah" thing was always bogus, so no shock there.

The thing about this, is that if you are telling people they can opt out by paying a fine, you have just burdened people with additional expense and those people STILL don't have health insurance. So...yay? WTF?

Mike said...

Is it possible that the mandate was included only to get people (congress-critters, insurers, and some other morons) on board, but the progressives are willing to lose it in lawsuits, in order to drive the insurers out of business?


When the lawsuits start, maybe the administration makes a weak defense, allowing the mandates to be thrown out, but only the mandates. now the insurance companies have no way of staying in business without the premiums of the general populace. they fold, leaving the government as the only solvent (temporarily) insurer.

bagoh20 said...

If the government were to give me a choice to either stop criticizing the president or pay a tax, does that make it constitutional?

AlphaLiberal said...

RNC paid for trip to bondage night club, at "Voyeur West Hollywood".

Ha ha ha!

Family values, baby!

Larry J said...

All they have to do is call it a fee instead of a tax. Amendment One to the Colorado constitution is the Taxpayers' Bill of Rights (TABOR) which among other things says politicians can't raise taxes without voter approval. When they did what they wanted and called them "fees" instead of "taxes", the state supreme court said that was OK by them.

So, Obama will play lawyer weasel words and call them "healthcare fees" or "premiums" or some other word instead of taxes and them look us right in the eyes and tell us he kept his promises. And his sychophant supporters will try to justify the all important difference between taxes and fees as if they made a difference to a family's or business's bottom line.

But if it walks like a duck and quacks like a duck...

Dudley Do-right said...

I would advise everyone to buy health insurance. In fact, you should stock up on it: 7.62x39, .223, or 9mm are recommended. There are others equally suitable.

vw = falingu Couldn't have said it better!

bagoh20 said...

"...if you are telling people they can opt out by paying a fine, you have just burdened people with additional expense and those people STILL don't have health insurance. "

But we got your money and that was the goal. Now we can go shopping some more. Now get back to work and stop whining about who's covered.

Beldar said...

Prof. Althouse, what has ever given you the impression that the Obama Administration cares a whit about consistency?

It doesn't -- never has, never will.

AprilApple said...

HRC is all about the TAX.


It's a huge TAX.


It won't bring down costs at all.

AprilApple said...

Obama lied.

Indeed, he did.

AlphaLiberal said...

Nothing racist about the nearly-entirely-white teabagger movement.

Peter V. Bella said...

Once again, Obama signed a bill he did not read. Once again, congress and the senate passed a bill no one read. Once again the people get hosed.

The supposed 32 million people w/out insurance still have none. The alleged 18,000 who supposedly die each month because of lack of insurance are still dying. They will have no insurance and keep dying for four years.

Yep, this bill is historic. People should be celebrating. Like Seinfeld, this is a little bill about nothing.

traditionalguy said...

Under this theory GM will get to levy a penalty/tax upon every person who does not buy a motor vehicle but expects to ride with someone else. Call it the Hitchhiker Fee. I think of Obama's latest theory as another Union Dues.

Maguro said...

Are there any other examples of "taxes" that are paid to private corporations? We seem to have truly entered a post-modern world, where words mean whatever those in power deem them to mean.

Chip Ahoy said...

Hahaha.

I feel another pop-up card coming on.

AJ Lynch said...

It's a way to fix the "maldistribution of wealth" according to Max Bausus who has been in the Senate for 25 years while the maldistribution was forming.

holdfast said...

It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance....

But by all accounts the amount of the tax is only a small fraction of the cost of insurance. Also, apparently the new tax does not have the same enforcement and penalty provisions under the tax code like the income tax, so tax scofflaws like Tim Geithner just won't pay it anyway.

Brian said...

Ha ha ha!

Family values, baby!

Alpha, all you are doing is attempting to hijack every thread you post in with off-topic junk on Republicans and/or conservatives. The topic here is the validity of the opinion of Jack Balkin that the HCR individual mandate is constitutional because it's actually a tax.

Peddle your junk elsewhere.

Shanna said...

RNC paid for trip to bondage night club, at "Voyeur West Hollywood".

Dude, why didn't we ever do anything like that when I worked there?

Chip Ahoy said...

Man, this interim socialism sure is messy.

BJK said...

Taking Ms. Althouse's comment to its end point, the ultimate irony is that the candidate who campaigned against George W. Bush now finds himself backing down on the same promise made by George H.W. Bush.

Read my lips, nothing directly identifiable as new taxes.

holdfast said...

Chip:

Don't sweat it - the "interim" part will be over soon.

http://en.wikipedia.org/wiki/Cloward%E2%80%93Piven_strategy

bagoh20 said...

You will see, as we already have here this morning that the left does not want to talk about or defend the ugly details of what they have done, but rather distract you with boogeyman stories of racism and spitting, but, that's just been too dishonest, used too much for too long and that shark will not jump. All it does is shine a light on the desperation of Democrats on a sinking ship.

AprilApple said...

Look over here! There are crazy racist right-wingers who speak for everyone. We don't need to talk about Obama's lies. There are crazy right-wingers with signs!

/Never mind the stacks of crazy Bush=Hitler /Bush=WarCriminal Let's Kill Bush signs stored in Alphaliberal's basement.

Peter V. Bella said...

Hey Alpha,
Maybe you better do some research. One of the inspirations for the Tea Party movement is a very very very leftwing progressive Democrat.

He is running for governor of Illinois. About twenty years ago he started a tea party drive. Again, in 2006, he started a tea party drive.

Pat Quinn, the original Tea Party activist. BTW, he was born on the anniversary of the Boston Tea Party.

He is another Purple shirt, just like you. But, the Fuhrer at SEIU gave him 1.7 million dollars. All you got was a purple tee shirt and a full email box.

lemondog said...

Don't most (all?) states have mandatory auto insurance?

Other than not a federal mandate, does it differ constitutionally?

wv: mulness=donkey=democrat=congressional/WH thugocracy

A.W. said...
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Alex said...

Obama lied, people are gonna die!

The Ghost said...

guess what, if you choose not to buy insurance and the risk pool for the insurance companies include more folks with a pre-existing condition then their calculated premiums will be too low. But this "tax/fee/handling charge" will not be paid to the insurance company to offset their lost premiums it will go to Uncle Sam. It will drive insurance companies out of business very quickly.

bagoh20 said...

Auto insurance is not mandatory; you don't need it if you don't drive, or can prove with cash deposited that you are able to pay the liability of hitting someone. It's more like a toll road. Only pay if you use it. You can even not pay at all if you want to self-insure as many currently do in health care too by not having health insurance. Well they used to have that option.

Joe said...
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AprilApple said...

Are there millions of dollars in taxes and fines if you don't purchase auto insurance?

Joe said...

Jack Balkin only proves what a bunch of dicks lawyers are and especially law professors. Being forced to either buy someone or pay money is the definition of fine, not a tax. If you don't buy insurance, then what is being taxed? Is Balkin seriously proposing that a tax on nothing is valid? Balkin knows all this, which means he's either just making shit up or really dumb.

(It all too often appears that to be a law professor you must first fail an exam in common sense.)

Joe said...

BTW, since when does family values exclude bondage?

I'm not into that, but if others are and all parties are participating of their own free will, why is it any of my business? (That actually is the true conservative position.)

Quayle said...

In the end, it doesn't matter if it is a tax or a mandate, a fee or a scam.

You can call it anything you like but it won't change our tax and spend problem.

The bond market doesn't lie and it isn't Dem or GOP and last week it started to tell us that the days of the US borrowing money to fund these bloated government programs is coming to an end.

Talk up the evil right-wingers all you want, but the simple logic of money in versus money out can't be spun, you ignorant dissolute liberals and lefties!

Fr Martin Fox said...

My take is, he's got an argument--it is a tax.

My question is, what are the relevant constitutional provisions and judicial precedents for determining when a tax is constitutional?

Are those in favor of this prepared to say that Congress can tax whatever it likes, however it likes?

Michael McNeil said...

Nothing racist about the nearly-entirely-white teabagger movement.

Except that as the Quinnipiac University poll that Althouse referred to before demonstrates, about one out of eight Tea Partiers are non-white, which is hardly “nearly-entirely-white,” and only a handful of percentage points less than the general population.

Robert said...

If it is a mandate, then it may be unconstitutional.

Avoid that by calling it a tax.

Exempt certain religions and ethnic groups (Christian Scientist and Indians).

Will this cause any legal issues? Everybody has to pay the tax except if you are an American Indian or Christian Scientist?

Taxing Jews and exempting Christian Scientists? Isn't that showing a little government sanctioned favoritism?

Quite a conundrum.

Trooper York said...

Hey the family that ties each other up stays together...or something like that there.

Trooper York said...

I am so very happy that I am getting out of the tax preparation game after this year.

I really don't want to have to explain all the tax increases. Some of my clients are quite elderly and I think they are gonna croak right on the spot.

Scrutineer said...

Obama: "...for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase."

ABC

Ilya Somin

New "Hussein" Ham said...

Wow,

That's very good folks.

AlphaLiberal dropped three or four attempts to race-bait a change in the conversation about Obama's huge tax increase and massive Medicare budget cut, and nobody fell for the bait.

Very good discipline, folks.

Don't feed the trolls.

New "Hussein" Ham said...

But while we're on the subject of AlphaLiberal, it should be noted that the FBI nabbed another Democrat Party terrorist this morning, arresting Barack Obama donor Norman LeBoon.

Leboon, a Democrat and donor to Barack Obama, was arrested by the FBI after posting video threats to kill a Jew's family, according to a post at TalkingPointsMemo - an internet website frequented by known domestic terrorists.

madawaskan said...

What kind of a guy names his blog "balkinization"?

"Cute" one letter change and it's more like his name than the geo political theory of why people go to war and millions end up dead.

This guy flies his narcissism up the flagpole of his own ignorance.

Rialby said...

I read some of the bill and it actually says "Indians" and not "Native Americans". What do you want to bet some enterprising Punjabi files suit.

Der Hahn said...

Lemondog (et al) ....

YOU CAN NOT COMPARE STATE REQUIREMENTS FOR AUTO INSURANCE TO THE HCR MANDATE!!! (ok, now that's out of my system) and it doesn't have anything to do with driving being a voluntary activity. You're also continuing the Barry 'I was in an accident now pay for my car' Obama mistake.

States have a general police power to protect the health and welfare of their citizens. The Federal Government does not. (IIRC this is one of the reasons W held back from a Federal take-over of the NOLA evacuation mess immediately before Katrina hit). The state can require you to carry insurance to pay for the damages and injuries that you cause to other citzens in an auto accident. Check your state laws. You very likely don't have to carry comprehensive insurance that pays for no fault accidents. You do have to carry collision which pays for your damage to the other guy.

As to the tax question ... Randy Barnett on volokh.com has been debating this question with Balkin for some time. He holds the opinion the SC has said that Congress can not reach to regulate behavior through the tax code that they otherwise would be prohibited from regulating by the Constitution. Sprinkling magic dust from the tax fairy on what otherwise would be considered a penalty and making the IRS collect it doesn't make it a constitutional tax.

Michael said...

Lemondog: States only require auto insurance if you have a car. ObamaCare requires you to have health insurance whether you have a car or not. Plus whether you are healthy or not. Plus whether you want it or not.

Bruce Hayden said...

It will be interesting. Of course, if it is a tax, it will have to based on income, and that isn't clear. Keep in mind that the tax must pass muster under the 16th Amendment which requires that:

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration."

The alternative would be for it to qualify under Article I, Section 9, which provides that: "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." (note - there is a question right now whether the 'or' between 'census' and 'enumeration' is supposed to be, if I remember correctly, an 'and').

So, for a tax to be levied upon people, it either needs to be based on income, or in proportion to the census/enumeration.

Frankly, I don't think that the Administration will be hot to term this a "tax", since it will fall mostly on the middle class, and the President promised no tax increases on the middle class. This is a big one.

t-man said...

What I would like to hear is an explanation for exempting union health care plans from the tax on "Cadillac plans", that would pass even the lowly rational basis test. Same thing for the various special deals that various states got.

One counter-attack that I have thought of is for states that are not beholden to unions, (Texas, for example), to impose a state tax on union health plans that are exempt from the federal tax.

madawaskan said...

I doubt the Obama Administration has not calculated the "broken pledge" in advance-with a media that never calls him on anything-who is going to make him pay for it?

He gets away with yet another broken campaign promise-as if there has not been many already.

It's a small price to pay for what this bill will accomplish.

Remember when people were wondering why Obama spent his "political capital" on the 800 billion stimulus package first?

Well really now that everyone has seen how it's all played out-it's become kind of obvious he needed the stimulus package first.

A.W. said...

lemon

The difference is that typically states are granted the broad police power, which means more or less, all laws not specifically prohibited by the state or federal constitution is allowed. by comparision the federal constitution says that all powers not granted are denied. that is why the state can do alot of things the federal government cannot do. A state for instance can ban rape and even create a cause of action for rape in civil court. by comparision when the feds tried to do it, much of that law was struck down.

A.W. said...

Btw, guys, lets not yell at lemon. he might actually be wondering, given the misinformation out there. we have to recognize that the left is in full BS mode and people can be innocently confused. Indeed, the reason why the states can force you to carry auto insurance isn't because driving is a privilege. its because of the broad police power mentioned in my last post. States are free to do anything not forbidden. the feds are forbidden to do anything not allowed for in the constitution.

So with the FG, you have to start your analysis by asking, "where do they get the power to do this?" if you can't find a grant of power, that is the end of it.

Just Lurking said...

Shocker. Obamacare is a another way to raise huge amounts of taxes by calling it an entitlement. Why not? They did it with SS and medicare. We're "entitled" to all those good things- and we're "entitled" to pay for them. Aren't we lucky.

Those Dems are clever and the public is stupid. A large portion of the public cheers for more and more government dependency. They cheer for their own loss of liberty.

Just Lurking said...
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Just Lurking said...

Re: the health insurance industry:
People who now work in the health insurance industry need not fear Obamacare. Once the govt completely takes over that industry (just a matter of time), they will be sucked into the expanding public sector, which is good for them. Currently public sector wages and benefits are out pacing the private sector.

Scott said...

Our Dear President would find it instructive to look at the 1989 poll tax (a per-head tax) that was levied by the Conservative government of Margaret Thatcher -- it led to protests, riots, people being jailed for nonpayment, and ultimately the replacement of Thatcher by John Major in 1990.

Whatever its merits, the individual mandate is massively stupid politics. It doesn't surprise me that the Uglycrats proposed it.

LarsPorsena said...

With all the hubbub about HCR everyone missed the ominous news that SS is now paying out more than it takes in.

It took SS 74 years to get to that point. Health care will be in the red from the get-go.

Michael McNeil said...

People who now work in the health insurance industry need not fear Obamacare. Once the govt completely takes over that industry (just a matter of time), they will be sucked into the expanding public sector, which is good for them. Currently public sector wages and benefits are out pacing the private sector.

This in my view is quite wrong. Governmental bureaucracies are under no obligation to open their claims processing facilities near locations where defunct insurance companies had been sited, nor to pick up their ex-employees. Instead they will place their offices wherever they find it politically expedient.

Moreover, even if the new governmental facilities did wish to hire former insurance company employees, geography will oftentimes make it impractical for many to relocate.

As an example of what I'm talking about, about a decade ago I worked for a Silicon Valley, Calif., firm that (some time after I departed) was acquired by another company, which announced that all the 300 employees of the engulfed firm could keep their jobs — provided they up and moved to Boise, Idaho! While had I still worked there I might have taken them up on that offer (since I'm from Montana, and love those mountains that extend well into Idaho), you know how many actually ended up transferring to Idaho? Zero!

c3 said...

AL;
I don't think your squirrel button is working.

Smilin' Jack said...

It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior....

How does not buying insurance constitute "behavior"? The rocks in my garden don't buy insurance either--are they exhibiting behavior? If so, perhaps they should be represented by their peers in Congress...oh, wait...

MnMark said...

If this insurance requirement is constitutional because it is enforced through a tax, then the government can mandate anything as long as it imposes a tax for failure to comply.

That's the same as having no constitution. A constitution that can be interpreted to mean "the government can force you to do anything it wants as long as it uses a tax to penalize non-compliance" is the same as no constitution at all.

Revenant said...

Can Congress tax a person for refraining from an activity when Congress lacks the power to compel the person to engage in that activity? Especially if, as in this case, Congress is explicitly imposing the tax in order to force people to engage in the activity?

Revenant said...

with a media that never calls him on anything-who is going to make him pay for it? He gets away with yet another broken campaign promise-as if there has not been many already.

The thing about taxes is that no matter how much politicians lie about them, the people find out the truth in the end.

You don't need CNN to tell you that your taxes are going up. You'll find out in April whether they tell you about it or not.

AJ Lynch said...

I agree with Mn Mark. If just being called a tax makes it legal, they could require any type of behavior at all.


That interpretation can't possibly align with the intent of the constitution.

madawaskan said...

Revenant-

Start with this as just the foundation:


An astonishing 43.4 percent of Americans now pay zero or negative federal income taxes. The number of single or jointly-filing "taxpayers" - the word must be applied sparingly - who pay no taxes or receive government handouts has reached 65.6 million, out of a total of 151 million.

Those numbers come from an analysis published yesterday by the Tax Policy Center, a joint project of the Urban Institute and Brookings Institution. Neither is a low-tax or conservative advocacy group; the Urban Institute was created under the Johnson administration during the Great Society era, and it receives most of its funding from the federal government.


cbsnews.com

Now the way this health care bill is structured it's a pretty safe bet that more than 50% won't have their taxes significantly raised immediately.

Also most don't care about taxes for businesses-they're the "fat cat" profiteers.

Anyone voting for the leader of the Democrat party who honestly thought that-Democrats would not raise taxes was naive.

"No new taxes" that only works against the Republican.

It will prove to be a negligible argument against Obama primarily because of the the Liberal bend of the media and for the built in differences of party ideology.

AJ Lynch said...

Madawaskan:

Their spin will be it's not a tax if the IRS can't actually "persuade' you to pay it.

BTW- can someone explain why taxpayers are providing so much funding to these non-profit groups including this one [the far-left liberal Tax Policy Center]?

It's a legal bribe and they obligingly churn out "studies" and "reports" that the MSM can't get enough of. Dammit!

kentuckyhusseinliz said...

So will Muslims have to pay the tax then? They don't believe in insurance, but you don't get to not believe in taxes. They believe in health care so they're going to use what they're not paying for.

Dhimmi tax.

Dummies.

carly said...

But it can't be a tax because the bill exempts certain groups (possibly including Muslims, who consider insurance haram) from the mandate on the basis of their religion. What tax exempts individual adherents to a religion from taxation?

madawaskan said...

AJ-

Wait...damn it-we're funding that Tax Policy Center-?

Figures.

Balfegor said...

Jack Balkin only proves what a bunch of dicks lawyers are and especially law professors. Being forced to either buy someone or pay money is the definition of fine, not a tax. If you don't buy insurance, then what is being taxed?

In effect, taxes are being raised on everyone, but people who buy government-approved health insurance are exempted. And there's lots of cases where you pay less tax if you buy something than if you don't, e.g. mortgage interest tax deduction favouring buyers over renters.

Balfegor said...

If this insurance requirement is constitutional because it is enforced through a tax, then the government can mandate anything as long as it imposes a tax for failure to comply.

I think this is pretty much true. They don't call the Power to Tax the Power to Destroy for nothing, after all.

Alex said...

Question - is it possible to view all my blogger.com thread subscriptions so I can unsubscribe all at once or some, rather then having to do them individually?

Dust Bunny Queen said...
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Dust Bunny Queen said...

What are they taxing?

Inactivity?

We get taxed for NOT doing something?

So. If I don't buy a product, like insurance or a GM car, I get taxed?

If I don't buy a new Television from GE I get taxed or fined?


There is no way that this is a TAX.

Sheridan Joslin said...

Remember when Obama told Stephanopolis it is "absolutely not a tax"?

STEPHANOPOULOS: That may be, but it's still a tax increase.

OBAMA: No. That's not true, George. The -- for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase...

ken in sc said...

Actually, the mandate tax is like the dhimmi tax on Jews and Christians in the Turkish Empire. Convert or pay. However, there seems to be no enforcement penalties in the law, so whoever said they don’t really want it is probably right. Obama just wants to eliminate private health insurance.

JeanneB said...

The penalty I get...that could be a "tax". But the insurance premium? I think it's hard to call it a tax. We will choose our product, then write checks to the insurance company. All we send the gov't is proof of insurance. That's not a tax.

Given this thinking one could say my mortgage payment is a "tax". I pay my mortgage company, send proof of pmt w/ my taxes, I get a decuction and lower tax. If I DON'T have a mortgage, I will pay a higher "tax" (penalty).

The only difference here is that I'm REQUIRED to have the health insurance...not the mortgage. That weighs more toward it being a "mandate".

Dust Bunny Queen said...

But the insurance premium? I think it's hard to call it a tax. We will choose our product, then write checks to the insurance company. All we send the gov't is proof of insurance. That's not a tax.


If the government mandates that you MUST buy a certain product......oranges for instance because the government says they are good for you.....and you don't WANT to buy oranges, you are OK with them making you pay money in lieu of oranges anyway???

If you don't buy oranges you have to pay. So you buy oranges because the alternative is to pay anyway.

Even though you really don't want or even hate oranges you have to buy them.

In fact, because everyone bought oranges the supply of oranges became short and the price of oranges went up.

You still have to buy them anyway.

Tough shit. Buy my fucking oranges bitch.

TmjUtah said...

The objective is to destroy the existing system.

Health care reform is merely terrain the barbarians use to get to the city. As is cap and trade or the EPA or the endangered species act.

Means to an clear and unequivocal end.

Nothing more.

Doc Merlin said...

Its a tax on being alive and thus a capitation tax, imo.

Anthony said...

I have seen this "mandate is a tax" line of argument, mostly from supporters of the mandate stating why it is constitutional.

Frankly, I do not get the argument (I had one person tell me that the XVIth amendment (the income tax amnendment) made the mandate constitutional.

Frankly, I would think the Commerce Clause cases would make ht mandate constitutional. If there really is a mandate that is -- some of the analysis I have seen now says there really is no mandate.

I guess Pelodsi was right -- we needed to pass the bill to find out what is in the bill.

William said...

Based on his argument that the individual mandate is constitutional because it is a tax, it seems to be a very small step for our legislators to require everyone to buy a GM or Chrysler car this year or face a tax. The auto companies have operational problems that a universal mandate might solve. AIG has operational problems that a universal mandate might solve, too. Gee! We could solve the housing crisis if we had a universal mandate! This assumes you buy into the argument that the solution to any industry crisis is to convince the American public to buy more things they don’t need.

RJ said...

OK, everybody write me a $2000 check.

Now as long as you do exactly what I say, at the end of the year I'll give you your money back.

Sweet.

Rick Caird said...

Balkin is making a very poor argument. This is an argument not worthy of a professor of Constitutional law. It is, however, the type of argument made by a liberal. Balkin argues the mandate is a tax that hits individuals depending on where they work or even if they do work. It hits the young lawyer who opens his own practice rather than joining a big law firm. If it is a "tax", it is a tax on the inability to find the "right" job or a tax on risk taking.

If there were a tax on poor legal reasoning, Balkin would be poverty struck.

Mick said...

Pure BS from a "Constitutional lawyer" that doesn't even know that Obama's very Presidency is constitutionally illegal (his father was never a citizen, thus he's not Natural Born). Anything he signs will be null and void. What a farce.

Balfegor said...

Remember when Obama told Stephanopolis it is "absolutely not a tax"?

Sure, I remember. But all that tells me is that Obama is kind of clueless about this legislation. I knew that already. The President's apalling ignorance/mendacity does not control interpretation of the statute.

Col. B. Bunny said...

The framers addressed the misinterpretation of the “general welfare clause. James Madison said, in a letter to James Robertson, “With respect to the two words ‘general welfare’, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” James Madison also said, “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”

Constitution Day, by Walter E. Williams
Ideas on Liberty - August 2006

JudgeStone said...

"BTW, since when does family values exclude bondage?

I'm not into that, but if others are and all parties are participating of their own free will, why is it any of my business? (That actually is the true conservative position.)"

No. It isn't.

That's the libertarian ideologue/ cultural libertine position, which is not a major player in conservative politics. At least, it isn't a "family values" i.e. traditional conservative position.

This is not to say that the true conservative position would be to shut down the brothels or that the right endorses prying into people's private matters, but no conservative organization would sponsor a trip to a sex club out in the open. They are called vice industries for a reason.

JudgeStone said...

"Nothing racist about a nearly 100% white teabagger movement."

No. Quite frankly there isn't. There would not necessarily be anything racist about a 100% white Tea Party movement.

Tell me what's racist about endorsing less government intrusion into the economy?

If the people who would support a movement that is serious about reducing the size of government are 99% white, that does not say anything about the movement (unless you believe that small government is inherently racist. You seem stupid enough to entertain such ideas). It does provide evidence that the Open Society relatively free of government interference might be inconsistent with a highly non-white country.

In other words, if I had to choose between an open society and a really diverse (tm) society, the open society wins.

Put that in your pipe and smoke it Alphalib.

JudgeStone said...

By the way, the consititutional question is easy. Let us take an expansive interpretation of gov. power:

if the end is constitutional and the means is not unconstitutional, the act is constitutional.

The end is to force people to buy health insurance. Thus it is not constitutional.

If Balkin or some other liar pretends that the end is "general welfare", then I would be very happy since congress could then pass a law saying that Balkin should have a sock stuffed in his mouth forever for the general welfare.

Balfegor said...

If Balkin or some other liar pretends that the end is "general welfare", then I would be very happy since congress could then pass a law saying that Balkin should have a sock stuffed in his mouth forever for the general welfare.

I believe that would constitute an unconstitutional bill of attainder. But would stuffing socks in a mouth be a criminal penalty?