Replies

After all, the legislatures' intent must be understood when considering a bill in court, right?

I would think so. Of course, I'm an "original intent" kind of guy. Since a lot of folks consider all legislation to be "living", I think there is a concern that the goverment may decide "When we debated the bill, and passed the bill, it was not a tax. However, at this point in time, we deem it expedient to declare that it is a tax. Let it be so."

I will be amazed if the Supreme Court doesn't trike this thing down, but I've been surprised before. ;)

I think there is a concern that the goverment may decide "When we debated the bill, and passed the bill, it was not a tax. However, at this point in time, we deem it expedient to declare that it is a tax. Let it be so."

I don't think that would work, since the "we" mentioned above was the Legislative branch, but the case is being defended by the Executive branch. The Executive can't change the intent of the Legislative.

Cuccinelli argued just as I suggested...from the ruling:

"The Commonwealth emphasizes that the best evidence of congressional intent is the language chosen by that legislative body. In the Minimum Essential Coverage Provision (26 U.S.C. 5000A(b)(1)) Congress specifically denominated this payment for failure to comply with the mandate as a "penalty."

Judge Hudson didn't fall for the defendant's attempt to call the penalty a tax. From the ruling:

"In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, this Courts' analysis begins with the unequivocal denials by the Executive and Legislative branches that the ACA was a tax. (Emphasis added)

...and...

"This Court is therefore unpersuaded that Section 1501(b)(1) is a bona fide revenue raising measure enacted under the taxing power of Congress. As the Supreme Court pointed out in La Franca, 202 U.S. at 572, 515 S. Ct. at 280. The penalizing feature of this so-called tax has clearly 'los[t] its character as such' and has become 'a mere penalty with the characteristics of regulation and punishment.' Kurth Ranch, 511 U.S. at 799, 114 S. Ct. at 1946 (citing Child Labor Tax Case, 259 U.S. at 28, 42 S. Ct. at 451). No plausible argument can be made that it has 'the purpose of supporting the Government.'"

The court therefore concluded that Section 1501(b)9(1) was a penalty, not a tax, notwithstanding the government's lame arguments to the contrary.