Posted on 03/29/2010 8:20:39 PM PDT by Elderberry
We will truly be in Alice's Underland if they can convince a judge that a premium payment to an insurance company is really a tax covered by the 16th Amendment. Taxes are paid to governments -- not private companies. The tax argument won't carry water.
When there is a super majority of conservative senators AND congressmen with the stones to bring articles of impeachment.
Thank you for that! An observation offered from someone that appears to have a legal background.
So in essence, IF the district court were to grant a temporary injunction it could be very good news; upheld by the circuit, would be very good news, no?
Ok, let’s put our heads together just to explore what the possible arguments are. Keep in mind I am not arguing against you, I am just trying to count cards (so to speak) in the poker game (the legal game) and figure the odds that Obama has certain cards in his hands.
We can discuss this while knowing for sure that the Obama people have cards in their hands that they are going to play out in court and we are going to take whatever experience from the past (FDR, Social Security) and any clues of the present and try and get a sense of the strength of their hand. Ok?
One thing, don’t put any wishful thinking into it. IOW “I want Obama to lose, therefore his arguments must not hold water” or “people don’t like Obamacare therefore the Supreme Court should do such and such”. Rather what we should do is think “Ok, Obama’s possible argument X won’t hold water because of A, B, and C whilst his argument Y may hold water because of D, E, and F etc.”.
And lastly, don’t use any public statements of Obama and his people, because whatever they say in public could be 180 deg out of what they present in court.
So I will start. Having not read the entire bill, I have read that on pages 202 and 203, that for people with ‘inadequate health insurance’ (as in none) that their employers will pay taxes and for those individuals self-employed or not employed, that these indivisuals will pay an ‘excise tax’. Now an ‘excise tax’ may not seem to be an income tax but it most certainly is. And employer taxes will certainly be payroll income taxes (withheld by the employer), so these are going to be income taxes and that is why the Department of Treasury is assigned to oversee it, i.e. the IRS.
Everyone else will be directed to purchase a government defined, approved and mandated health insurance policy from a state exchange.
Now one of the arguments against Obama in court that we have been reading about is that the federal government cannot compel a person to buy anything just because they are alive. So say for argument’s sake, that people en masse decide to snub these exchanges and do their own thing. What Obamacare is planning to do then is what I wrote above, they are going to tax employers and individuals for persons having ‘inadequate insurance’. And I’ll bet they say they can do that because the 16th Amendment allows them collect income tax from whatever source.
Now I have just analyzed Obama’s hand so well that I shocked myself. So go ahead and weigh in with your thoughts while I try to get my blood flowing again.
What they choose to do down the road if people don’t comply has nothing to do with the provisions of the ObamaCare Bill on the table right now. The bill on the table calls for mandated premiums to a private company. Those premiums are not taxes paid to the government like SSI payments are. They can’t use the same argument.
It’s not mandated premiums, it’s mandated coverage. In order to provide the coverage, the private insurers are going to have to determine the premiums to cover the cost.
But mandating ‘basic coverage’ is only one section of Obamacare, and it alone may not allow the Supreme Court to strike down the whole law, it hey strike down any of it.
Along this line, Obama (his justice department lawyers) may use the Commerce Clause, that clause in the Constitution that the federal government has used to regulate interstate commerce. Because Medicaid and Medicare have federal funding ties, I would think they may have some success in an argument to regulate basic coverage but I think such Commerce Clause arguments will be weaker than the tax arguments, and I have read other analyses that give me a sense that Commerce Clause arguments may fail completely.
Now here’s the thing, say that a person buys an insurance policy now and the federal government determines that it is inadequate. As I described in my previous post, these persons with ‘inadequate health insurance’ will be taxed (pages 202 and 203) of the bill. So I am afraid of the tax argument, because the federal government has a free license there under the 16th. That’s why I am hoping for Divine Intervention in a huge rally of Americans to repeal the 16th. I know H.R. 25 is an alternate tax code waiting in the wings that is wonderful and could be used if the 16th is repealed.
So think some more and keep the comments coming. It’s good to discuss this.
Not a "temporary injunction," but rather a "preliminary injunction." That would be good news, but the burden on the party moving for the preliminary injunction is very high, particularly when the issue concerns the constitutionality of legislative enactments, which enjoy a presumption of validity.
The key issue, in my opinion, is whether the plaintiffs will suffer irreparable harm in the absence of a preliminary injunction. The obvious argument is that the states will have to spend billions of dollars funding the unfunded federal mandates and creating the bureaucracy to administer Obamacare, which they will never recoup in the event the court declares the key aspects of the law unconstitutional. The Feds will argue just the opposite -- that it will suffer irreparable harm if a preliminary injunction is granted because they will not be able to take the administrative steps and prerequisites to timely effectuate the law in accordance with the statutory framework in the event the court concludes that Obamacare is constitutional. Both arguments have merit and I would not be surprised if he court grants a preliminary injunction as to some aspects of the law that directly intrude upon state sovernity, but allows other aspects of the law to go forward.
Well, as much as I believe it might be a good mental exercise, I honestly don't have that enough faith in our judicial system to exert the effort. I don't think there's much doubt this particular suit will end up at the SCOTUS, with or without a temporary injunction. The SCOTUS justices will hear compelling arguments from both sides of the issue, probably enough to give them cover for a ruling either way. So IMHO, it will come down to the integrity of the individual justices and NOT the Constitutionality of the arguments. I think history clearly bears that out.
There is another factor that could potentilly influence any forthcoming decision, maybe carry the day and that is, are they paying attention to the mood of the country?
I think that the number of states that have joined the law suits should be an influence on the court.
To a layman that has the appearance of being exactly upside down. A law is passed, the wheels are put into motion, infrastructure set up, manpower hired and trained to make it all happen then ~POOF~, a lawsuit working its way through the courts finds the law unconstitutional! It seems to me a lawsuit that even has a remote chance of succeeding, not some frivolous nonsense, should be given the benefit of the doubt to put a stop to the enormous expense involved. But then, I'm not an attorney and I don't get paid for the interminable litigation involved.
The Feds will argue just the opposite -- that it will suffer irreparable harm if a preliminary injunction is granted....
While undoubtedly the way things work this seems like unmitigated nonsense to me. What POSSIBLE harm could come from NOT implementing a law(besides the obvious - like murder maybe)? The law didn't even exist before and one has to assume things were at least functioning so what's the harm in delaying the implementation of it? Thank God I didn't choose the legal profession as a career! It would drive me nuts. ;^)
Well quantity certainly has its place and the more the better as far as I'm concerned. We conservatives need to get behind these lawsuits, States' initiatives reasserting their Constitutional powers and their rightful place in the hierarchy. The States have the stroke we lack to rattle the cages in DC and get things done as our first line of defense against the federal leviathan. Our lives and the future of our republic may depend on it.
I want believe as both of you that somehow the People’s angst and disgust with what has happened will somehow influence the Supremes. I know that some of them will have sleepness nights trying to find a solution without appearing to be legislating.
The problem is the 16th Amendment. That amendment is a curse. It allowed the Left to impose its ideology on American society constitutionally. I hate to say it but that amendment gives the Left permission to take away our freedoms.
Let me repeat: the problem is the 16th Amendment.
As I posted previously in this thread, Obama and his justice department lawyers are going into court and defend the constitutionally of Obamacare on 16th Amendment grounds.
Here’s how:
If we don’t buy a health insurance policy meeting ‘federal government required coverages’, in other words if the federal government finds that we have ‘inadequate insurance’, then they are going to tax us individually or have our employers withhold from our paychecks. In other words again, they are going to tax us under authority of the 16th Amendment.
Keep in mind that any law for a new income or payroll tax can be passed and signed for any reason. But of course our elected officials are supposed to govern with our consent. So think of Obamacare as a huge tax program with healthcare as the propaganda used to distract or to mislead us into thinking we will get something in return for our tax paid. They are smart enough to know that if they just try and pass massive tax hikes without any reason (even though they don’t need a reason), they are smart enough to know they can’t get it past Congress. That’s why they have pushed healthcare. We know it’s not about health, it’s about taxes.
Think for a moment that you are a hardcore insider democrat to government. You see the federal government going broke, Social Security, Medicare going bankrupt, the United States insolvent, the States insolvent and headed for bankruptcy. You have two choices, drastically cut spending or raise massive taxes. What would be your reason for raising massive taxes? That’s what this is about, socialism expanding itself from the center of its destruction, socialism reaching out to feed itself on new activities to avoid feeding on itself.
We must repeal the 16th asap:
http://www.freerepublic.com/focus/bloggers/2479079/posts?page=2
I understand your argument but most of us have trouble just concentrating on one battle at a time. Keep in mind also that FDR’s SCOTUS, where much of the present socialism was given a pass, was cowed by various forms of intimidation and threats to “stack” the courts. He “Fireside Chatted” them into submission. The present SCOTUS seems to have at least 4, and occasionally 5, decent human beings on the bench.
Look, if Congress passes a law that all red-haired women between 25 and 49 must stay at home every second Thursday, and fines those who don’t obey th law $5,000 per day for each transgression of the law, yes, the fine is a tax, in some sense.
But the PROBLEM is not the tax; the problem is the unconstitutionality of the requirement to do something. When the second or third layer of a law is valid, and the first layer is not, you don’t say “oh, we’re gonna lose because of the 16th Amendment” because of the fine (tax),” but you *do* say, “The requirement to stay home is unconstitutional.”
So don’t think about the defenses for the second layer at all at this point — think about the law’s requirement, which is unconstitutional. That’s all you need to declare the whole thing a bag of dreck.
We should be attacking on several fronts. Because a loss at the Supreme Court will be very demoralizing and disunifying. We will be scattered and in disarray. The Left will never let us hear the end of their victory and they will act to move us to the fringe where they think we belong.
But if we have the 40 states that are now lining up against Obamacare, if we have 34 of them call for a Convention, then we control the field.
1. Win Congress in November.
2. Attack the Left in Court.
3. Organize 34 states to call for a Convention.
4. Win over 38 states to ratify to amend the Constitution to repeal the 16th.
All of the above have to be done simultaneously and with much media attention, and public demonstration.
It is my hope that just as it was for the 17th Amendment, when the people began to organize for a Convention and were on their way and near to getting 2/3s of the states to call a Convention, suddenly Congress at the last hour jumped in and did the will of the States and proposed the amendment to be sent back to them for ratification.
In order for Congress to make amendment proposals to be sent back to states for ratification, 2/3s of both House and Senate must vote for the amendment.
In 2010 the GOP will not have 2/3s of the Senate. But if Obama keeps our anger up and doesn’t distract us with a Kosovo or some such, then we will be angry enough to see both House and Senate propose to repeal the 16th by 2012, especially if we show resolve in organizing a Convention to propose repeal ourselves.
It’s all about showing will without letting up.
Roosevelt was a communist and a traitor.
But the tax can remain, that’s the problem. And worse, the Left could get the Supremes to begrudgingly declare that the tax is constitutional.
They could call it the silly tax. The portion of the law requiring redheads to stay home could be struck down but the silly tax would remain and would show up on paycheck withholdings as the silly tax.
Of course people can vote out the Congress and a new Congress can remove the silly tax but its constitutionality remains.
The Left has boasted that they have been working for this Universal single payer for 50 years. If they get set back here, they won’t stop. What will drive a stake through them is to repeal the 16th. And there is an alternate tax code that operates without the 16th that is waiting in the wings and is vastly more fair and efficient.
Admirable goals to be sure but we don’t have enough czars to take the shotgun approach. Some significant single victories along the way will help build momentum just about as well as anything IMHO.
Not to mention an opportunistic turncoat. And like odinga, he surrounded himself with like minded kommies. Looks like each generation has its own crosses to bear.
I should have told how it is thought Obama is going to defend the whole thing. This is a frightening thought but I want to be alert to any realistic risk and I think this is a substantial risk. I hope that I am wrong.
Obamacare says to each of us, that our health insurance policies must meet certain government standards. Obama’s lawyers will preface their argument by asserting in court that they are not mandating that Americans buy insurance, that they are not forcing anyone to buy insurance.
They will use what they say is their constitutional authority to regulate commerce to ‘set standards’ of health care because it affects nationwide commerce in that industry.
I can’t see clearly how the Supreme Court or any federal court can rule against the federal government ‘setting standards’ on anything. In this case, the government can use the word ‘should’ versus ‘shall’ and call it a standard minimum to say for example ‘should include persons with preexisting medical conditions’.
Therefore, I see the possibility that the courts will find it difficult to intervene, even if they have a personal passion to do so, on the activity of the federal government to set ‘minimal standards of health coverage’ as a national policy of ‘recommendation’. I believe that over time the Left will, as they often have done on other issues, change the force of these minimum standards from ‘recommended’ to ‘required’.
The federal government has from the 16th Amendment the constitutional authority to tax income (however defined) from whatever source. They can target certain groups and exempt others from their taxation.
On page 202 and 203 of Obamacare, the federal government intends to tax employers and individuals for persons not having adequate health insurance, which I infer will mean not meeting ‘minimum recommended standards of coverage’.
Now I look at this latter statement halfway, “the federal government intends to tax” meaning more precisely that the federal government shall tax, and everything that follows is irrelevant, the reason for the tax is irrelevant.
Now imagine that the federal courts look at whether they should intervene in the federal government’s power to tax. I think that many that sit on the court will be chagrined as so many of us are, but there is no clear court authority to interfere with the government’s power to tax.
This is why I look at the ultimate final battle as the one that will repeal the 16th Amendment.
Is there hope? Yes, there appears a sizable sustainable sentiment to run the Left out of power in Congress in 2010 but not leaving 2/3s to repeal Obamacare or to propose a constitutional amendment to repeal the 16th. Perhaps in 2012 there could be 2/3s to fight the ultimate battle but that is a long shot.
We can wager that Obamacare will be defunded in 2011 and we can devote energy to electing a new President in 2012 that will sign to repeal Obamacare. But I fear in that span of time that the Supreme Court will writhe in agony over the constitutionality of Obamacare and make the unfortunate ruling that legislation is however malintended, constitutional on its face because of the broad and unlimited power of the federal government to tax us in whatever manner it chooses.
I, for one, would not risk everything on repeal of Obamacare, I believe there is a good chance of repeal of Obamacare but many things can go wrong on the road to repealing Obamacare. A Kosovo war can be contrived, and the horror of some level of martial law can be witnessed. I would bet the Left will try by whatever means to change the subject, to distract our attention to something more acute, and then in a furtive move begin the process of taking over the health industry and thereby let socialism grip the American system of capitalism like never before.
Time is not a friend here. We cannot allow days of ‘birds chirping’ to pass where we grow accustomed to Obamacare as a normal role of government.
We must make the argument against taxation, that drastic changes must be made and that repeal of the 16th becomes the topic of the day, everyday, every Sunday news show, every weekday talk radio show, it must be a centerpiece of our political discourse.
And if we can achieve making repeal of the 16th the center focus, there will be talk of how the government will gets revenue. Fortunately, we have a wonderful tax code replacement in the wings.
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