Posted on 03/05/2012 11:05:19 AM PST by Oldpuppymax
Centuries of legal precedent might intervene to save the American people from Barack Hussein Obama’s attempt to force individuals and employers into the legislative enslavement of ObamaCare.
Constitutional law professor Elizabeth Price Foley, in conjunction with the Institute of Justice, has filed an amicus brief with the Supreme Court concerning the upcoming Court review of the Affordable Care Act—ObamaCare.
In the brief, Foley makes the point that forcing an individual or company to sign a contract for the purchase of a product—health insurance included—would violate one of the centuries old underpinnings of contract law which states that to be enforceable, all contracts must be voluntary. (1)
As Foley writes in the brief, “The Founding generation that drafted and ratified the Constitution never meant for the federal government to possess the power to coerce individuals to engage in commercial transactions against their will.” (1)
If congress is permitted to force the purchase of insurance on the American public, what can it NOT coerce the public to buy? What contractual obligation would be beyond its power to impose on the people?
Clearly the difficulty Government Motors has experienced selling its Chevy Volt could be overcome with a new congressional mandate that all Americans buy a Volt as a second vehicle.
After all, how would such a mandate differ from the one which presumes to coerce the public into the purchase of health insurance?
If the government believes there are too few engineers, thousands of individuals could be compelled to sign contracts with colleges and future employers, guaranteeing their future services as engineers. Imagine the fine for failure to honor the terms of THAT contract!
Though such rampant abuse of power by Congress might sound fanciful, the passage of ObamaCare...
(Excerpt) Read more at coachisright.com ...
In the brief, Foley makes the point that forcing an individual or company to sign a contract for the purchase of a product—health insurance included—would violate one of the centuries old underpinnings of contract law which states that to be enforceable, all contracts must be voluntary.
Choosing to buy or not buy Obamacare insurance will be voluntary. Those who do will get a tax credit. Those who don't won't get the tax credit. Choice is to each person and so is voluntary.
Now pay your 16th Amendment taxes and shut up.
Is it "voluntary" if you do it because you believe the government when they say "If you don't volunteer to do it, we'll make you wish you had!"?
I think the GM bondholders believed the government.
But I do hope "they" try and argue this thing as a tax. That will open the barn door to many, many challenges of tax law and could turn out to be the liberals worst nightmare as we start getting into our graduated tax system and equal protection.
Except that those with no income for the year will still be fined; In which case that would be a capitation tax and must be proportioned among the states which it is not.
This can happen when the self employed have an off year and expenses exceed revenue. Or the wealthy living of income taxed in previous years.
What happens if I don’t buy an Obamacare policy and I refuse to pay the fine ?
Unfortunately, probably the same thing that happens to anyone else who doesn't pay the IRS; you begin that long odyssey through the legal system and court costs, etc.
Will Obama”care” be the high water mark of the 80 year flood of Welfare Sewage that has finally mortally drowned America?
Read up on the latest court case on severability. you won’t like it but you need to understand that it is now held as severable after the fact by US Federal Courts. In other words, severability is not your life saver.
They are already arguing it as a tax; again read up on it and get current. There have been news reports that Obama lawyers are arguing it as a tax now since last summer. Also from the get go they have said they are following FDR’s playbook on Social Security, i.e. in public proclaim Social Security is a modest retirement pension plan and in court argue it is a tax. Rush also discussed this ages ago but the public still hasn’t caught on to what is going to hit them.
The public and most parts of conservative political circles have been putting their eggs in the basket of the Commerce Clause arguments and guess what? They will likely win on the Commerce Clause battlefront but they will lose on the 16th Amendment tax argument which is all that is needed to launch Obamacare for the ages.
And don’t think this hasn’t been done before, as I just explained to you, FDR’s lawyers played the same game with Social Security in the 1930s. Even Biden said in the press if they don’t win on the 16th Amendment then Social Security goes down too. Ok?
So once again I say shut up and pay your 16th Amendmnent taxes. Else the IRS will shut you up.
Tsk....and to think people like you think they have some sort of freedom........pay up and shut up!
It’s a tax stupid!
oh....and if you really do want to leave something worthwhile behind in your life, you might study this a bit:
http://www.fairtax.org/site/PageServer?pagename=about_faq
The above will put an end to the insanity guaranteed but you have to want it bad, bad enough to be passionate enough to lay your life down for it.
Low income and no income poor will get their Obamacare card regardless as an entitlement.
Those living off of previously taxed income are few and far between. They may get away with not paying but in reality they are statistically dust.
The point is that once again Conservatives are internalizing a false belief, that somehow contracts need be voluntary blah blah blah. When in fact the Obamacare lawyers are in court arguing 16th Amendment tax and to hell with contract law, it doesn’t matter.
I have seen Freepers get their hopes up so many times only to be whacked by something they hadn’t thought of, sending them into a dizzy state where it seems they are not living in Kansas anymore.
Too bad that as a force we can’t focus on the real enemy which is the 16th Amendment and too bad we don’t take the time to understand the solution:
http://www.fairtax.org/site/PageServer?pagename=about_faq
Michael Barnes,
It was written without a severabilty clause, yet the 11th Circuit Court severed the law anyway, ruling only the mandate unconstitutional and the rest of the law Constitutional!! Courts around the country have done this off and on over the years and it is perfectly legal.
The left has stated over and again that the individual mandate it VITAL for the law to work. But I’m skeptical of that. Personally, I don’’t think they CARE about how well it “works.” The purpose of the law is power and control, not healthcare.
“Too bad that as a force we can’t focus on the real enemy which is the 16th Amendment and too bad we don’t take the time to understand the solution:”
Actually, the real enemies are the corrupt members of the judiciary.
“Coach is Right” will run an article exposing the corruption of the Georgia Superior Court of Fulton County which, on Thursday, refused to even consider an appeal of Judge Malihi’s legally incorrect ruling on Obama’s eligibility last month. The actions of the Court, the clerks office and the Chief Judge are incredible!! Don’t look for any of it to be covered by CNN.
It’s this sort of bias and thoroughly improper, even ILLEGAL behavior on the part of COURTS yet which will make the involvement of citizens inevitable at some point in the future.
It is the one part of their case that they have lost in EVERY case as pointed out by the 11th Circuit:
It is not surprising to us that all of the federal courts, which have otherwise reached sharply divergent conclusions on the constitutionality of the individual mandate, have spoken on this issue with clarion uniformity. Beginning with the district court in this case, all have found, without exception, that the individual mandate operates as a regulatory penalty, not a tax.Florida v. HHS , 716 F. Supp. 2d at 1143–44 (“I conclude that the individual mandate penalty is not a “tax.” It is (as the Act itself says) a penalty.”);U.S. Citizens Ass'n v. Sebelius , 754 F. Supp. 2d 903, 909 (N.D. Ohio 2010) (concluding that the individual mandate is a penalty, “agree[ing] with the thoughtful and careful analysis of Judge Vinson”); Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611, 629 [106 AFTR 2d 2010-7174] (W.D. Va. 2010) (“After considering the prevailing case law, I conclude that the better characterization of the exactions imposed under the Act for violations of the employer and individual coverage provisions is that of regulatory penalties, not taxes.”);Virginia v. Sebelius , 728 F. Supp. 2d 768, 782–88 [106 AFTR 2d 2010-7333] (E.D. Va. 2010) (concluding that the individual mandate “is, in form and substance, a penalty as opposed to a tax”); Goudy-Bachman v. HHS, 764 F. Supp. 2d 684, 695 (M.D. Pa. 2011) (“The court finds that the individual mandate itself is not a tax ....”); Mead v. Holder, 766 F. Supp. 2d 16, 41 [107 AFTR 2d 2011-1006] (D.D.C. 2011) (“[T]he Court concludes that Congress did not intend [the individual mandate] to operate as a tax, and therefore Defendants cannot rely on the General Welfare Clause as authority for its enactment.”).
For good reason. The breadth of the taxing power, well noted by the government and its amici, fails to resolve the question we face: whether the individual mandate is a tax in the first place. The plain language of the statute and well-settled principles of statutory construction overwhelmingly establish that the individual mandate is not a tax, but rather a penalty. The legislative history of the Act further supports this conclusion. And as the Supreme Court has repeatedly recognized, there is a firm distinction between a tax and a penalty.See, e.g., United States. v. La Franca , 282 U.S. 568, 572 [9 AFTR 985], 51 S. Ct. 278, 280 (1931) (“The two words are not interchangeable one for the other.”).
The government would have us ignore all of this and instead hold that any provision found in the Internal Revenue Code that will produce revenue may be characterized as a tax. This we are unwilling to do.
A. Repeated Use of the Term “Penalty” in the Individual Mandate
“As in any case involving statutory construction, we begin with the plain language of the statute.” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1362 (11th Cir. 2008) (citing Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056 (1980)). The plain language of the individual mandate is clear that the individual mandate is not a tax, but rather, as the statute itself repeatedly states, a “penalty” imposed on an individual for failing to maintain a minimum level of health insurance coverage in any month beginning in 2014. Title 26 U.S.C. § 5000A(a) requires “[a]n applicable individual” to “ensure that the individual ... is covered under minimum essential coverage.” 26 U.S.C. § 5000A(a). In order to enforce this requirement, Congress stated that “[i]f a taxpayer who is an applicable individual ... fails to meet the requirement of subsection (a) for 1 or more months, then ... there is hereby imposed on the taxpayer a penalty with respect to such failures.” Id. § 5000A(b)(1) (emphasis added).
Nor could we construe Congress's choice of language as a careless one-time invocation of the word “penalty,” because the remainder of the relevant provisions in § 5000A uses the same term over and over again, without exception and without ever describing the penalty as a “tax.” See, e.g., id. § 5000A(b)(3)(B) (individual “with respect to whom a penalty is imposed by this section” who files joint tax return “shall [along with individual's spouse] be jointly liable for such penalty” (emphasis added)); id. § 5000A(c)(1) (describing “[t]he amount of thepenalty imposed by this section on any taxpayer for any taxable year” (emphasis added)); id. § 5000A(c)(2) (describing “the monthly penaltyamount with respect to any taxpayer” (emphasis added));id. § 5000A(g)(1) (“Thepenalty provided by this section shall be paid upon notice and demand by the Secretary ....” (emphasis added)); id. § 5000A(g)(2)(A) (providing that taxpayer “shall not be subject to any criminal prosecution or penalty” for failure “to timely pay any penalty imposed by this section” (emphasis added)); id. § 5000A(g)(2)(B) (providing that the Secretary shall not “file notice of lien” or “levy” on “any property of a taxpayer by reason of any failure to pay the penaltyimposed by this section” (emphasis added)).
Thus, the text of the individual mandate unambiguously provides that it imposes a penalty. The penalty encourages compliance with the Act's requirement to obtain “minimum essential coverage” by imposing a monetary sanction on conduct that violates that requirement. The text is not unclear and was carefully selected to denote a specific meaning. As the Supreme Court most recently recognized inUnited States v. Reorganized CF & I Fabricators of Utah, Inc. , 518 U.S. 213, 116 [77 AFTR 2d 96-2562] S. Ct. 2106 (1996), ““[a] tax is an enforced contribution to provide for the support of government; a penalty ... is an exaction imposed by statute as punishment for an unlawful act.””Id. at 224, 116 S. Ct. at 2113 (quoting La Franca, 282 U.S. at 572, 51 S. Ct. at 280). The Court further expounded upon La Franca: “We take La Franca's statement of the distinction [between a tax and penalty] to be sufficient for the decision of this case; if the concept of penalty means anything, it means punishment for an unlawful act or omission....” Id.; see also Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 779–80, 114 S. Ct. 1937, 1946 (1994) (“Whereas fines, penalties, and forfeitures are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes.”). It is clear that the terms “tax” and “penalty” “are not interchangeable one for the other .... and if an exaction be clearly a penalty it cannot be converted into a tax by the simple expedient of calling it such.” La Franca, 282 U.S. at 572, 51 S. Ct. at 280.
You are citing arguments against Obamacare as a tax. You omitted arguments for Obamacare as a tax.
If you look at arguments for you will see precedent in the cases challenging Social Security in the 1930s where with the same definitional issues held arguments against SS in terms of its original statutory language and how it morphed into a tax.
The courts do not need to listen to definitions argued by parties. They can simply allow the government to amend or correct its intent. Look at what happened to severability.
Social Security was originally written into law as a ‘contribution’ and later morphed to a ‘tax’.
Get real, the courts do not always abide by definitional interpretations of parties, they look at compelling state interests and they ask if the government can do what it is attempting to do. Whether tax, penalty, contribution or extortion, however called, the courts will not restrict the government power to tax, confiscate, seize or levy especially under the 16th Amendment.
Congress could have used the word ‘tip’ and it will still be lumped as a tax category.
But for the sake of argument, how will the high court strike down Obamacare and let Social Security stand?
In any event you have through your copied citations given readers hope, false hope. Now balance it out and go back and retrieve the arguments for Obamacare as a tax.
In disclosure,I want to see Obamacare dead but I see as Biden said that it would also necessitate the death of Social Security. And the latter is not going to happen unfortunately unless my tag line is fulfilled.
Social Security was always a tax. Here is the original language from the original statute:
TITLE VIII- TAXES WITH RESPECT TO EMPLOYMENT
INCOME TAX ON EMPLOYEES
SECTION 801. In addition to other taxes, there shall be levied, collected, and paid upon the income of every individual a tax equal to the following percentages of the wages (as defined in section 811) received by him after December 31, 1936, with respect to employment (as defined in section 811) after such date:
(1) With respect to employment during the calendar years 1937, 1938, and 1939, the rate shall be 1 per centum.
(2) With respect to employment during the calendar years 1940, 1941, and 1942, the rate shall 1 « per centum.
(3) With respect to employment during the calendar years 1943, 1944, and 1945, the rate shall be 2 per centum.
(4) With respect to employment during the calendar years 1946, 1947, and 1948, the rate shall be 2 « per centum.
(5) With respect to employment after December 31, 1948, the rate shall be 3 per centum.
DEDUCTION OF TAX FROM WAGES
SEC. 802. (a) The tax imposed by section 801 shall be collected by the employer of the taxpayer by deducting the amount of the tax from the wages as and when paid. Every employer required so to deduct the tax is hereby made liable for the payment of such tax, and is hereby indemnified against the claims and demands of any person for the amount of any such payment made by such employer.
(b) If more or less than the correct amount of tax imposed by section 801 is paid with respect to any wage payment, then, under regulations made under this title, proper adjustments, with respect both to the tax and the amount to be deducted, shall be made, without interest, in connection with subsequent wage payments to the same individual by the same employer.
DEDUCTIBILITY FROM INCOME TAX
SEC. 803. For the purposes of the income tax imposed by Title I of the Revenue Act of 1934 or by any Act of Congress in substitution therefor, the tax imposed by section 801 shall not be allowed as a deduction to the taxpayer in computing his net income for the year in which such tax is deducted from his wages.
EXCISE TAX ON EMPLOYERS
SEC. 804. In addition to other taxes, every employer shall pay an excise tax, with respect to having individuals in his employ, equal to the following percentages of the wages (as defined in section 811) paid by him after December 31, 1936, with respect to employment (as defined in section 811) after such date:
(1) With respect to employment during the calendar years 1937, 1938, and 1939, the rate shall be 1 per centum.
(2) With respect to employment during the calendar years 1940, 1941, and 1942, the rate shall be 1 « per centum.
(3) With respect to employment during the calendar years 1943, 1944, and 1945, the rate shall be 2 per centum.
(4) With respect to employment during the calendar years 1946, 1947, and 1948, the rate shall be 2 « per centum.
(5) With respect to employment after December 31, 1948, the rate shall be 3 per centum.
The court held in Helvering vs. Davis that this was a tax. I can find no evidence that this legislation was ever argued to anything other than a tax, although it was argue that it was not an excise tax
They also held:
Second: The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment. Congress may spend money in aid of the "general welfare". Constitution, Art. I, section 8; United States v. Butler, 297 U. S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power is not an exercise of judgment. This is now familiar law.
Social Security raised revenue with a tax on income. It delivered general welfare benefits from the revenues of the federal government. As stated in the stature and acknowledged by the courts.
Obamacare forces contractual arrangements between private parties under penalty of fines as stated in the statute and acknowledged by the courts.
Off to far north Alaska with you to be employed doing what ever the government wants you to do. No work then no food for you. Enjoy counting the polar bears,
Yes you found the Social Security was statutorily constructed as a tax but that was AFTER FDR's people were challenged on their wording and so your example illustrates my point beautifully.
Here is what happened:
First download the following pdf document (it is only 10 pages long) http://www.ssa.gov/history/pdf/hhr35129.pdf and then note on page 6, item 3, 4th paragraph, 3rd sentence:
The compulsory contributory annuity system is designed to enable younger workers with the help of their employers, to make their own provisions for old age.
Note that the Social Security was publicly announced not as a tax but as a contribution to an annuity system.This is important. This representation PRECEDED Roosevelt's draft.
Remark: The public discussions that preceded in the years before the first hearings in Congress on Social Insurance are all seen in microfiche of records, periodicals and news print to refer to the Social Insurance movement as a contributory retirement plan or compulsory annuity.
Historical context - Roosevelt was getting creamed in the courts who were turning over his new deal programs. His Social Insurance proposal was late to the party as it was hashed out in townhalls across the country, again as a contribution to a government backed annuity, a compulsory contribution.
It mirrors what is happening today. Today democrats want to force health insurance (and by the way health insurance was slated for FDR's 1935 social blitz but was left out for later) on everyone in the same way that FDR's people wanted to force their government annuity program on everyone.
FDR saw his New Deal programs unraveling in the courts and he saw that the same would happen to his Social Insurance - Economic Security program. So he peppered HIS draft legislation with "earnings tax" and then made this statement:
"We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions and unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program."
Notice how FDR shifts from 'contributions' to 'taxes'.
Furthermore the taxes were raised under Title VIII of the Social Security Act and the benefits were paid out under Title II of the Act in the hopes of obscuring the obvious connection between the two.
So let's look at your thesis. Let's look at what was written in the more than 900 pages of legislation that most democrats in Congress did not bother to read. Let's see where they used 'penalty' and the word 'tax'.
Your supposition is that Obamacare does not address taxes but only penalties. This is untrue. Under Title IX Revenue Provisions for example in Section 9001 and in Section 9015 (pages 729 and 752 respectively of http://burgess.house.gov/UploadedFiles/hr3590_health_care_law_2010.pdf) reference is made to excise taxes high cost employer sponsored insurance and additional taxes on high income taxpayers. Both of these are constitutional under the 16th Amendment as Section 9002 (page ) requires the cost of employer sponsored health plans to be reported in dollars on a W-2. Let that last sentence sink in. Current health insurance will now be reported on a W-2 as dollars. Obamacare states in Section 9001 that these W-2 quantities in excess of a certain level will be taxed at 40%. With high income taxpayers filing jointly with income in Section 9015 above $200,000, there will be a tax on their wages, and so on. Obamacare explicitly pays out taxes under revenue provisions and binds to these taxes the penalties for failing to pay.
So your thesis is fatally flawed because Obamacare is not defined as a penalty but rather as a tax and redistribute scheme, in other words a clear example of socialism all made constitutional under the 16th Amendment.
The genuineness of your supposition notwithstanding, if the arguments you have cut and pasted are the best that lawyers can do on behalf of clients that oppose Obamacare, the conservative movement is screwed.
Conservatives cannot defeat Obamacare in the Supreme Court because it is rooted in tax authority of the 16th Amendment.
It has been a slow walk of one hundred years since 1913 to bring Socialism to full bloom in the USA.
The only way to stop this pending historical victory of socialism in the USA is for the American people to become aware, rise up, become active and work to repeal the 16th Amendment and replace it with the following:
Yes, FDR was aware of the courts skepticism. That is why he crafted the legislation in the manner he did. Courts have to rule on the statutes as they are written. FDR wrote it so the courts would allow it.
Obamacare includes excise taxes is other sections with fines for non-payment is not the issue. The argument is about the mandatory requirement for having health insurance: hence the severability issue.
I’m all for getting the 16th amendment repealed.
I believe the biggest hurdle for the having Obamacare repealed is the issue of standing. They’ve lost on that issued several times. Obama will then wait to appoint new Justices who agree with his sweeping notions of the Commerce Clause.
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