Althouse: Harvard lawprof Laurence Tribe predicted the way the Supreme Court would resolve the Obamacare case.

July 11, 2012

Harvard lawprof Laurence Tribe predicted the way the Supreme Court would resolve the Obamacare case.

Long before the case was decided, he clearly and repeatedly stated the taxing power argument that Chief Justice Roberts ultimately adopted:

That's a lengthy video, but it's well worth watching. It has an amusing segment with Rush Limbaugh emphatically stating that nobody predicted what Roberts would say. Maybe "predicted" is the wrong word. Maybe what Tribe did was influence Roberts (his former student).

64 comments:

pm317 said...: Tribe rescued Roberts who tried to rescue the Republicans.. but if you listened to them, you would think he tried to rescue Obama.; 7/11/12, 9:28 PM
Ann Althouse said...: "Tribe rescued Roberts who tried to rescue the Republicans."

That statement doesn't fit the evidence in the video.; 7/11/12, 9:29 PM
Anonymous said...: Tribe is the Jedi, Limbaugh is Jabba the Hut.; 7/11/12, 9:43 PM
Calypso Facto said...: Tribe was loudly championing the Constitutionality of the Act under the Commerce Clause (wrong) until he got a new idea from Judge Brett Kavanaugh:

Tribe also noted an interesting point made by Judge Brett Kavanaugh of the D.C. Circuit (who ultimately found no jurisdiction to rule on Obamacare at the current time, pursuant to the Anti-Injunction Act). Judge Kavanaugh noted that the health care law would be clearly constitutional if, instead of “mandating” the purchase of health insurance, it simply operated as nothing more than a tax penalty, telling the citizen, “It’s your choice: you can purchase health insurance, or you can take a hit come tax time.” In Tribe’s view, this is really what the Act effectively does, and so it should be upheld for this reason.

Do the Above the Law bloggers not read their own blogs?; 7/11/12, 9:48 PM
Lem Vibe Bandit said...: So, one guy predicted it.
The law is still bad.

Limbaugh is Jabba the Hut

.. and Allie is a frog.; 7/11/12, 9:50 PM
pm317 said...: @Ann..
Sorry, don't have time to watch the video (got to get up at 5:30 and go to work like regular people) but I was going by your conjecture:
Maybe what Tribe did was influence Roberts (his former student).; 7/11/12, 9:51 PM
SomeoneHasToSayIt said...: This comment has been removed by the author.; 7/11/12, 9:53 PM
SomeoneHasToSayIt said...: And for all their degrees and supposed smarts, they got it all outrageously wrong.

The ruling is a travesty.

The Founders are spinning in their graves.

I'm reminded of this exchange, reportedly between Franklin and a colonist.

"What did you [all] give us, Mr. Franklin?"

"A Republic, madam, if you can keep it."; 7/11/12, 9:55 PM
KCFleming said...: Detailing how the ump threw the game is too much inside baseball for me.

He lied, health care died, that's all I know. Well, that and his price.; 7/11/12, 9:56 PM
Anonymous said...: So Lem, was that nice calling me a frog? What is Limbaugh your hero or something, do you identify with him personally?; 7/11/12, 10:00 PM
Guildofcannonballs said...: So liberal-influenced ecumenism is just a L.I.E.?; 7/11/12, 10:03 PM
Guildofcannonballs said...: My mistake indeed, using big words of which I know not the meaning trying to sound smart like Madman Mundt:

Liberal-influenced epistemology is the L.I.E.; 7/11/12, 10:05 PM
Lem Vibe Bandit said...: If you are going to call people names.. Rush is a person too.. The fact that he might not be a person to you, doesn't make it so.

If you are going to call people names you should be prepared to (as Roberts would put it) fess up to the consequences of your comments.; 7/11/12, 10:06 PM
Badger Pundit said...: For people who just want the gist of it, the shorter 10-minute version of the video is probably sufficient; covers the main points:
http://www.youtube.com/watch?v=oHb-qrqj0mw; 7/11/12, 10:10 PM
Anonymous said...: Good grief Lem, does Limbaugh come here and get his itty bitty feelings hurt by a commenter on Althouse? I don't care if you call me names Lemming, I do however think its odd to be so protective of a radio talk show host. You don't know him personally Lem, it appears that you are overly identifying with him.; 7/11/12, 10:11 PM
Lem Vibe Bandit said...: I'm making a choice Allie.. its very simple.; 7/11/12, 10:14 PM
Chip S. said...: If the pretzel logic used to rationalize this inane decision was actually Tribe's, everything makes perfect sense.; 7/11/12, 10:14 PM
Seven Machos said...: Screw Larry Tribe, Althouse. I am still waiting for you to glamorize me and Balfegor for our prescience. Here, for example, is me spouting oracularly on march 27, 2012:

Start with the proposition that everyone must pay the tax. However, you can get out of paying the tax if you purchase certain insurance, or get a waiver.

The issues here are really semantic. Obama and Congress did not want to call what they were doing a tax, so they claimed power under the Commerce Clause. In my opinion, the outcome really depends wholly on the vocabulary the Court accepts. The interesting question, if I am right, is whether Congress can use power that it says it isn't using. Must Congress be honest?; 7/11/12, 10:14 PM
Anonymous said...: Lem, did you understand even one word I just said?; 7/11/12, 10:15 PM
jeff said...: "get his itty bitty feelings hurt by a commenter on Althouse?"
Interesting. You called someone a name. Someone called you a name. And now THAT person has a issue and you don't?; 7/11/12, 10:16 PM
Palladian said...: Can we set up a separate blog somewhere for Allie and her adversaries to have their 100-comment back-and-forth bickering sessions? It's really, really tiresome.; 7/11/12, 10:17 PM
Lem Vibe Bandit said...: If someone were to call the professor names, in another venue other than here.. I might choose to respond just the same.; 7/11/12, 10:17 PM
Anonymous said...: This comment has been removed by the author.; 7/11/12, 10:20 PM
Anonymous said...: Argggg, the person I called Jabba th hut, hasn't commented here yet to have an issue with me, unless Lem is a Limbaugh sockpuppet.

Sorry Palladian. I'm done now.; 7/11/12, 10:21 PM
Lem Vibe Bandit said...: Lem, did you understand even one word I just said?

I dont speak frog...

But.. if you take down your Rush comment, I'll take down mine.; 7/11/12, 10:26 PM
Anonymous said...: Lem, meet you at the cafe thread and we can discuss this further, ribbet. Let's leave ths thread to the "sophisticates".; 7/11/12, 10:32 PM
Seven Machos said...: Goodbye Whiny McWhinersons.; 7/11/12, 10:33 PM
Chip S. said...: Either this topic is completely played out here, or Allie's powers of thread derailment have grown formidable.; 7/11/12, 10:54 PM
jr565 said...: Only, didn't the court itself decide that it couldn't be a tax in order to hear the case in the first place?; 7/11/12, 10:59 PM
Chip S. said...: That's a question I haven't seen answered here yet.

Seven?; 7/11/12, 11:00 PM
Anonymous said...: I am the Jedi Mistress of thread derailment, but 'twas not intentional!; 7/11/12, 11:02 PM
Anonymous said...: Sorry, slinking back to the cafe thread now......; 7/11/12, 11:04 PM
Seven Machos said...: jr -- I have to imagine that the Court did not do that. But I can't say for sure.

I mean, I can say for sure, because it's just impossibly ironic, but I don't have the evidence here in front of me so I have to hedge.; 7/11/12, 11:22 PM
Chuck said...: I'll be damned if it doesn't sound like Tribe was tipped off to what the decision was, just a few days before it happened. Probably (and not terribly surprisingly) by one of his former students now clerking on the Court.

It would have been useful, politically valuable information for Tribe to have, and to then pass on to his friends in the Obama Administration.

I actually discount the notion (albeit entirely possible) that Chief Justice Roberts was somehow bullied or intimidated into siding with the upholding ObamaCare under the Article I taxing power.

But watching Tribe on Hardball just gave me the chillingly creepy feeling that Tribe had been told what the decision was.

Because I sure as hell don't remember Professor Tribe making any such argument and/or prediction at the time of the oral argument.

I say that the news was leaked to Tribe by a clerk.; 7/11/12, 11:48 PM
jr565 said...: If it's a tax, I would love then to hear Laurence Tribe's opinion of whether a case could have been brought before the Supreme Court before any taxes were in fact paid.
Namely, what is his stance on whether the Anti Injunction act would prevent the case from being heard by the Supreme Court in the first place, since no taxes could be paid.

This ruling reminds me of The logical inconsistency of the movie The Terminator. There, they send the Terminator back in time to assassinate John Connor's mother, because in the future he is winning against the Terminators. So the humans send back Kyle Reese to defend Sarah Connor from the Terminators. But he ends up impregnating her and, surprise of surprises turns out to be John Connor's father. John Connor knew this (in the future before sending Kyle back in the past).
THe problem with all of this though is that the future follows the past, and the future with John Connor in it could never have happened unless the future happened first. i.e. John Connor has to be alive in the future to send Kyle back in the past, only he would never be born in the present unless John Connor of the future didn't send Kyle back in time so that he could impregnate his mother FIRST.

This ruling is like that. It's not a tax, until it is. The and injunction isn't applicable because it's a penalty and not a tax and thus the Supremes can hear the case and don't have to wait until 2015. Only Roberts decides that is in effect a tax after all. Which would mean, by my logic, that therefore the Anti Injunction act would apply and the Supremes couldn't hear the case until 2015 when people first had to pay the tax.

If it's a tax, then the Supremes shouldn't have taken the case until the taxes were paid . But if they dispense with that logic and call it a penalty, and thus take the case (invalidating the idea that the injunction would prevent standing until a tax was officially paid), then why would they be able to call it a tax?
THe logic should be something along the lines of, we can't take this case now because it IS a tax, and therefore the anti injunction act prevents us from hearing the case until the taxes are officially paid in 2015. It sounds like Roberts is talking, literally out of both sides of his mouth.; 7/12/12, 12:21 AM
Seven Machos said...: jr -- I disagree in lots of ways. But basically, there was a challenge under the Commerce Clause (at least primarily) by the several States. The Court found Obamacare unconstitutional under the Commerce Clause, as did some lower courts. The Court then reasoned that the law was constitutional under Congress's power to tax. So, the Court did not overturn the law (mostly).

You are over-thinking this in a huge way. The interests of justice trump crappy lawyers. If I sue you under A and you defend B, it is perfectly reasonable and expected for a court, particularly an appellate court, to rule in your favor because of C. (The reverse would not be true. If I as a plaintiff bring the wrong cause, I can't win.)

At the end of the day, Roberts got it right. Obamacare is a tax. It's a terrible tax, and a terrible law. But courts do not exist to save us from the shitty decisions the politicians we elected make.; 7/12/12, 12:39 AM
jr565 said...: Seven wrote:
You are over-thinking this in a huge way. The interests of justice trump crappy lawyers. If I sue you under A and you defend B, it is perfectly reasonable and expected for a court, particularly an appellate court, to rule in your favor because of C. (The reverse would not be true. If I as a plaintiff bring the wrong cause, I can't win.)

At the end of the day, Roberts got it right. Obamacare is a tax. It's a terrible tax, and a terrible law. But courts do not exist to save us from the shitty decisions the politicians we elected make.
Well, I agree and disagree. If you look at some of the earlier discussions I say that the ruling isn't necessarily totally a loss, because by framing it as a tax it forces congress to own up to it being a tax, and therefore the repubs can argue that the dems raised taxes,and unpopular ones at that.

But in thinking about the ruling it makes less and less sense logically, because the second question was whether the Supreme Court could even hear the case. And that was predicated on whether it was a tax or a penalty. IF a tax, then presumably no case could be brought until the taxes were in fact paid. And the Supreme Court seemed to suggest that in fact, it could be heard because it was a penalty and not a tax. It kind of throws logic on it's head if its not tax for the purposes of whether a case can be brought before the court, but then suddenly becomes a tax when it comes to whether the case is constitutional because of the congresses power to tax.
Shouldn't the case have been made that since it is a tax, no case can be brought before the court until the tax is in fact paid? And if the court decides that it's a penalty and thus can hear the case, that kind of refutes the idea that it can be deemed a tax later.; 7/12/12, 12:52 AM
jr565 said...: As tribe said, and as Calypso linked to:
Tribe also noted an interesting point made by Judge Brett Kavanaugh of the D.C. Circuit (who ultimately found no jurisdiction to rule on Obamacare at the current time, pursuant to the Anti-Injunction Act). Judge Kavanaugh noted that the health care law would be clearly constitutional if, instead of “mandating” the purchase of health insurance, it simply operated as nothing more than a tax penalty, telling the citizen, “It’s your choice: you can purchase health insurance, or you can take a hit come tax time.” In Tribe’s view, this is really what the Act effectively does, and so it should be upheld for this reason.

Tribe references Kavanaugh who argued that yes it is a tax, but the Supremes had no jurisdiction to rule on it as of yet, due to the anti injunction act.

If the Supremes have no jurisdiction to hear the case because it's a tax, then how is John Roberts able to determine that it's constitutional because it is in fact a tax. He, and the courts have no cause to hear the case until the taxes are in fact paid. Which is why the minority opinion is so mocking of John Robert's logic. It really makes little sense since it argues that it both is and isn't a tax.; 7/12/12, 12:57 AM
Seven Machos said...: jr -- Think of the alternative. The alternative would be to overturn a law passed by Congress and signed by the president under the Commerce Clause when, in fact, the law is constitutional under another power of Congress -- the power to tax.

You are letting yourself get sucked into a silly Catch-22. Congress's power is plenary when it is constitutional. The plaintiffs were suing under the Commerce Clause. The fact that Obamacare is a tax is a defense, so to speak, and the defendants don't need to wait to raise their defenses when they are dragged into court. Moreover, as I said before, judges can raise issues sua sponte. Happens all the time.; 7/12/12, 1:06 AM
jr565 said...: You are over-thinking this in a huge way. The interests of justice trump crappy lawyers. If I sue you under A and you defend B, it is perfectly reasonable and expected for a court, particularly an appellate court, to rule in your favor because of C. (The reverse would not be true. If I as a plaintiff bring the wrong cause, I can't win.)
But if the court can't hear the case if B, then can the court say that it's not B so as to hear the case, but then say that it is in fact B after all? Woulnd't the fact that it was B mean that the court should have deferred hearing the case in the first place?; 7/12/12, 1:08 AM
Rabel said...: Now wait a minute.

Long before the ruling Tribe argued that the ACA was constitutional under the taxing power, yes. He speculated that the court could use that reasoning.

But he also argued that the ACA was constitutional under the commerce clause and the necessary and proper clause. These latter arguments are omitted from the video.

The "prediction" which remarkably named Roberts as the deciding vote only came two days before the ruling.

He may be a Jedi, and his arguments may have influenced Roberts, but he was tipped. Most likely by Kagan.

Recall this: "...in a March 21, 2010 email to then-Senior Counselor for Access to Justice Laurence Tribe, Kagan writes, “I hear they have the votes Larry!! Simply amazing…”

Yeah, he was tipped and couldn't resist a little showing off.

Tribe is a brilliant legal scholar, he's also something of a camera hog.

I'll grant that Rush was wrong in detail. He should have put an "almost" in front of his nobody.; 7/12/12, 1:19 AM
jr565 said...: In other words, at this point, it's not even a question of what Congresses powers are but what cases the Supreme Courts are allowed to hear. OR rather, that sec ond question first requires whether or not there is standing to hear the case in the first place.
And it seems like the court was arguing that it was not a tax, therefore there was standing to hear the case (otherwise the case would have to have been rebrought in 2014 or 2015 when in fact the taxes were first paid).

If that is the case, then logically Roberts argument doesn't in fact make a lot of sense, since the court otherwise took it upon itself to rule on something where the laws should have prohibited them from hearing the case in the first place.

The Supreme Court also ruled that it could proceed with considering the constitutionality of the tax despite the Anti-Injunction Act, which dates back 145 years. The law said lawsuits can't be used to prevent taxing, only to get refunded for taxes already paid. The high court said whether something is a tax for the purposes of the Anti-Injunction Act is Congress' decision -- and since Congress designated the mandate as including a penalty rather than a tax, the law did not apply in this case.
"It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress's choice of label on that question. That choice does not, however, control whether an exaction is within Congress's constitutional power to tax."
Congress called it a penalty and not a tax, therefore the Supremes can hear the case. However, Roberts than suggests that even though the statute says penalty and not a tax, it is still a tax.
Which suggests then that there is no real distinction between the words "penalty" and tax".
I agree that congress has gotten away with calling things penalties when in fact they are taxes. But it sounds like Roberts just did the exact thing. If his argument was at all consistent the Supreme Court should not have heard this case until 2015 when the taxes (and not penalties) were in fact paid.; 7/12/12, 1:22 AM
Seven Machos said...: jr -- I still am not clear what you mean when you say the Court could not hear the case. Courts must hear cases. It is your right as an American to be heard in a court of law (if you can pay the filing fee or get it waived).

In federal court, there must be some basic things at issue, such as a federal question. That's definitely the case here.

When litigants don't like outcomes in federal court, they often appeal. And you, as a litigant, have the right to appeal. You must be heard, at least at some technical and artificial level.

At the Supreme Court level in federal court, the Court decides which cases to take. And it takes the ones it wants.

So, again, I don't understand what you mean when you say the Court couldn't take the case. It seems to me you have built up a very nifty logical trap, but it's full of faulty assumptions, which makes your conclusion erroneous.; 7/12/12, 1:27 AM
Chip S. said...: The fact that Obamacare is a tax...

Hold on, there, masked man.

The issue was whether the individual mandate was a tax, not the entire ACA, which was replete with things that are indisputably taxes.

The ruling that the mandate is a tax is an opinion of the court. It is not a "fact" any more than a ruling stating that Dartmouth is a college for certain legal purposes means that it isn't arguably a university.

But we've already argued that point to death.; 7/12/12, 1:29 AM
Seven Machos said...: jr -- Suppose I sue you. And you are the government. Suppose I sue you under the Commerce Clause.

I argue that you don't have the authority to act under the Commerce Clause in a certain way. Your lawyer bangs his fist on the table and says you do have such a right.

Now, the judge is deliberating. She concludes that I am right. Your lawyer is wrong. You, the government, cannot act as you wish to act under the Commerce Clause.

However, the judge also realizes that you have the perfectly constitutional power to act exactly the way you want to act under another clause, which gives you essentially plenary power to tax.

What should the judge do? Should the judge overturn a legitimate use of constitutional power because your lawyer is a moron?; 7/12/12, 1:34 AM
Seven Machos said...: Chip -- You are, of course, wholly correct. Please forgive the generalities. It's late and I am not a detail-oriented person even in the bright light of the afternoon.; 7/12/12, 1:35 AM
Chip S. said...: No problem, 7. It's just that little steps like that are how important distinctions get eroded over time.

Well, that plus--what the hell; it's the Althouse Late Show.

Congrats on your predictive accuracy, btw.; 7/12/12, 1:40 AM
tim maguire said...: Whether or not the individual mandate is a tax is a funny question. Conservative generaly consider any money the goverment takes as a tax. Tax is defined as money taken by the government.

It is not conservatives, but liberals and the government itself that tends to define tax more narrowly, limiting it to income tax, sales tax, etc.

The mandate counts as a tax under the broader conservative definition, from which camp it is rejected, but it does not count as a tax by the liberal definition, from which camp it is embraced.

What does the majority of the court think? Outside of roberts, i trully believe they don't care. They were determined to uphold the law and one argument is as good as another. I don't think Roberts believes it's a tax either, but i don't buy the "preserve the status of the court" claim. Obamacare is too unpopular for roberts to believe he was defending the court by making the wrong decision.

I don't know what his movitaion was, but my best guess is simple failure of will. He lacked the courage to make so momentous decision, so he stood aside and let it continue (it is not the job of the court blah blah blah). Washed his hands, almost literally.

But what of the observation that taxes must start in the House? Obamacare started in the senate. So if it's constitutional because it's a tax, then it is unconstitutional because it was improperly enacted.

But that, too, is not an original observation and yet the powers that be don't seem to care.; 7/12/12, 6:16 AM
John henry said...: And what am I, chopped liver?

2-3 years ago I was saying that if Obamacare was a tax, it would be constitutional.

I had based this on Justice Harlan Stone's comments to Sec Labor Frances Perkins who was trying to implement Social Security in 1934. He told her to make it a tax, rather than in insurance and it would be constitutional.

I even provided links to the story on Social Security's own site. Search Perkins and "A tea party that changed history"

I thought Obama had screwed up by not making it a tax. In fact saying specifically that it was not a tax. Little did I know the Supremes would call it a tax anyway.

I never had any question that an Obamatax was constitutional and have been saying so all over the web for years.

So good for Tribe but how about a little credit for me?

John Henry; 7/12/12, 6:54 AM
Rusty said...: Palladian said...
Can we set up a separate blog somewhere for Allie and her adversaries to have their 100-comment back-and-forth bickering sessions? It's really, really tiresome.

Either that or get a room.; 7/12/12, 7:30 AM
Rusty said...: But what of the observation that taxes must start in the House? Obamacare started in the senate. So if it's constitutional because it's a tax, then it is unconstitutional because it was improperly enacted.

Not to dismiss anything Seven or Chip said,(smarter than me by a long way) but I've asserted all along that it was a tax and that the senate deliberately and cynically called it a penalty so as not to have it declared unconstitutional on procedural grounds.; 7/12/12, 7:42 AM
Hagar said...: Obamacare technically started in the House. Harry Reid took a bill about something else and inserted Obamacare as a rider.

This thing was totally phony all the way. The liberal Democrats knew it would never go anywhere on its merits.; 7/12/12, 8:14 AM
Saint Croix said...: Limbaugh is Jabba the Hut.

It's funny how Rush looks like Churchill when he's sucking on a stogie. And both of them look like two big babies.

As both Freud and Titus would say, "Tits!"

And he's so happy when he's sucking on it and so mad when it's taken away!; 7/12/12, 8:30 AM
Hagar said...: and call it chopped liver or whatever you want, but when it comes up again in the Senate it will be a tax bill and can't be filibustered.

Roberts opened the door for the Republicans to repeal Obamacare by democratic votes in Congress; all they have to do is walk through it come January.

Or even before if they can figure out a way to get around Harry Reid or knock the troll off the bridge before the election.; 7/12/12, 8:31 AM
Mick said...: And none of the "law profs" have any prob with Butch Dyke Kagen sitting in judgment of a case pertaining to a bill she supported as Solicitor General. Nah, no illegality there!
The "law profs" are useful idiots and frauds. You all are a big reason that the reset is coming. You will be spit upon by the light of history. Enjoy the view, for now, from your Ivory Towers.; 7/12/12, 9:40 AM
Rusty said...: Saint Croix said...
Limbaugh is Jabba the Hut.

It's funny how Rush looks like Churchill when he's sucking on a stogie. And both of them look like two big babies.

As both Freud and Titus would say, "Tits!"

And he's so happy when he's sucking on it and so mad when it's taken away!

Said the man who never had a Monte Cristo. I'd whine too if you took mine away.

Wasn't it Freud who said, " Sometimes a cigar is just a smoke."?; 7/12/12, 10:00 AM
Simon said...: For the reason Hagar mentions, the origination clause dog won't hunt. It's a fun idea, and it was among my first thoughts after reading the chief's opinion, but the Senate bill started with a house bill shell, which is a long-established tradition, and even if there was some doubt, Munoz-Flores closes the door on such cases.

That doesn't mean that it won't be litigated. An acquaintance responded to Eric Holder's absurd claim that voter id requirements are a poll tax by asking whether it could be litigated; of course it can. Just because a case doesn't have a hope of succeeding doesn't mean you won't find a plaintiff willing to spend the money and an attorney willing to argue it.; 7/12/12, 10:38 AM
Bob Ellison said...: Seven, your prediction does seem prescient. Keep score, though; I thought I could predict the future sometimes and was proven wrong. Individuals are really strange.

Does society expect that the court could make up a reason for deciding one way or another?

This seems tenuous. Most of us laypeople want, expect, and deserve honest argument. Saying "it's a pipe" and winning the argument because the court says "it's not a pipe" is disingenuous. The court system, and the practice and training of lawyers, seems to fail here.; 7/12/12, 11:31 AM
Hagar said...: The training of lawyers is not the most important thing in the world.; 7/12/12, 3:15 PM
jr565 said...: Seven Machos:
Here is the opening arguments over whether the AIA should be upheld, and the discussion centering on whether this is or isn't a tax. Depending on whether it is, isn't the understanding that the Supreme Court can't actually hear the case until the taxes are actually paid (in 2015).

http://healthaffairs.org/blog/2012/03/26/the-supreme-court-aca-arguments-timothy-jost-on-the-anti-injunction-act/

Admittedly, I'm not a lawyer, so all the distinctions between whether something is a tax or a penalty from a legal perspective really gets into the weeds. However, if the AIA doesn't apply then doesn't that suggest that in fact it's not a tax (since otherwise being a tax, the Supreme Court would have to defer on the ultimate question of whether Obamacare was ultimately legal or not, until said taxes were paid in 2015.

As stated in the opening paragraph of the link:
This statute, enacted in 1867, provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” Because the ACA’s minimum coverage requirement (also referred to as the individual mandate) is enforced through a penalty that is assessed under the tax code, it is arguable that the requirement cannot be challenged in court until 2015, when a penalty is first assessed.; 7/12/12, 7:58 PM
Seven Machos said...: jr -- I think the reason I haven't been able to understand where you are coming from is because you don't seem to understand how lawsuits work.

Lawsuits arise under causes of action.

You are arguing that the plaintiffs had to wait to bring a their cause of action concerning the taxing power until some date. That may or may not be true. It doesn't matter one iota. The plaintiffs did not bring such a lawsuit.

The plaintiffs in this case sued under the Commerce Clause. They based their argument on the Commerce Clause. The defense also based its whole defense on the Commerce Clause. The tax issue was a minor sideshow.

The Court decided that the plaintiffs were right. The federal Obamacare mandate is not constitutionally allowable action under the Commerce Clause. But the Court held that the mandate is constitutionally allowable under Congress's taxing power.

The Court did not need to wait until a few years from now to make such a ruling. The plaintiffs did not sue because Obamacare is or is not a legal tax, so they didn't need to wait. The defendants did not need to wait to bring up the tax power as a defense.; 7/12/12, 9:42 PM
jr565 said...: and if were going to talk about founding fathers and copyright you should read this:

http://www.copyhype.com/2011/10/who-cares-what-jefferson-thought-about-copyright/; 7/13/12, 3:26 PM
jr565 said...: Seven,
Please describe the Anti Injuction act and how its applies to this case. Basically the first part of the arguments were whether they applied and whether the Supremes could hear the case NOW (and not 2015)
Please describe why the anti injection act would bar the hearing of the case.
It states" no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” Meaning, people who object to taxes must actually pay the tax first and then litigations could be brought.

By stating that the Suprmes could hear this case NOW, and not in 2015 when taxes were actually paid for the first time, weren't they in effect arguing that Obamacare was not a tax?; 7/14/12, 10:19 AM
jr565 said...: -cont- Otherwise, wouldn't the anti injection act prevent them from litigating the case until in fact the TAX was paid.
It SOUNDS like the Supremes argued that the anti injection act didn't apply, (because Obama care was not a tax), but then Roberts pulled the "it's a tax" out of his hat. If it were a tax, wouldn't then the case have had to wait until 2015, since of course, no one had yet to pay the tax.; 7/14/12, 10:21 AM