Posted on 06/17/2010 1:28:59 PM PDT by erkyl
Commerce clause is an ace in their hand but it is not the winning hand.
The winning hand they hold is the 16th amendment:
http://www.freerepublic.com/focus/news/2511077/posts?page=10#10
and the solution for us is here:
http://online.wsj.com/article/SB124044199838345461.html
Can’t wait to hear what he’s got to say about this.
“Uhh, uh, uhhh, now I never said uh, heh heh, I wouldn’t ,uh, CALL something a tax that, heh heh, ISN”T a tax. Oh damn, did the judge hear me?”
I'm more optimistic about this not passing muster with the Commerce Clause. To tax *inactivity* would essentially give the Legislative Branch UNLIMITED power.
Hell, I could then be taxed and regulated for *not* growing wheat (or anything else for that matter), even though I am not a farmer and have no land, the governmment's argument being that by *not* growing wheat, I affect the supply of wheat on the market.
Yes, it's a silly and unlikely example. But if Obamacare is upheld under the Commerce Clause, such a silly situation would become completely constitutional.
If the courts expand the Commerce Clause to that extent, the Republic is dead. Period.
Yeah those on our side have followed the ‘can’t tax inactivity’ line but that’s the wrong hand to play.
Obama’s lawyers will do like FDR did, they will say that they are not forcing anyone ‘away from inactivity’, they are simply setting ‘minimum federal guidelines for health insurance’. It’s on pages 231 and 232 of the legislation.
They are going to tax employers that currently provide health insurance that doesn’t meet ‘minimum standards’.
They are going to tax business individuals in the same manner.
They are going to give a tax credit to those that demonstrate they carry adequate insurance.
They are going to penalize those that don’t carry adequate insurance.
It’s not a commerce argument. It’s a tax argument. It’s the way FDR’s lawyers won on Social Security.
Because of the 16th Amendment, the government can tax ‘income’ from whatever source without regard to apportionment. That means they can tax you for whatever reason they want; they don’t need a reason. If they wrap the tax in some sort of healthcare context, then so be it, they can do it.
We have to get rid of the 16th. Here’s how:
http://online.wsj.com/article/SB124044199838345461.html
But the mandate applies to everyone -- even people with no income. So if the healthcare mandate is framed as a kind of "income" tax, then how can the government reconcile mandating that people without income purchase health insurance?
Tax credits. Low income folks will receive a check in the mail if they show they have adequate health insurance.
As another poster pointed out it will be like tax credits for weatherproofing. or energy efficient improvements, etc.
I'm not talking about low-income folks. I'm talking about *no-income* folks. The mandate is universal. But if the mandate is justified by saying it is merely a tax on an income source, then what about people with no income?
Granted, there may not be many people like this. But consider: the "significant other" of an income earner. The income earner has no legal tie to the significant other, yet may be paying for all his/her needs -- food, lodging, clothing, etc.
The significant other has no income at all. How then could the government enforce on that income-less individual the mandate, if the mandate is based on taxation of an income source?
If that income-less individual refused to purchase health insurance, then either he would be in violation of the law, in which case the mandate is not a tax on an income source; or he would not be in violation of the law, in which case the mandate is not universal.
Low income includes ‘no income’. Basically anyone at or below the poverty line as set by DHHS.
The ‘no income’ uninsured will be given a check that will be immediately taken by some government approved health insurance broker.
To answer your other questions, start from the fact that everyone is required by law to file a tax return, or to include dependents names and social security numbers. This filing requirement is what will be used to determine who does and who does not have ‘adequate’ health insurance.
I understand what you are saying -- how it will work in practice. But we were talking about the constitutionality of the law, and how the government is going to try to defend the constitutionality of the law before the courts.
You said the government's "ace in the hole" is that the mandate can be defined as a type of income tax. But if I do not earn income, I am not required to pay *any* income tax. (Yes, I might be entitled to some form of government assistance; but we are not discussing that.)
Let us suppose I do not earn one penny of income in a certain year. If the mandate is constitutional because it is a tax on income, then I must necessarily be exempt from the mandate, for I have no income. But the mandate is universal....
So yes, the government will argue that someone like me would be given "credits" with which to purchase health insurance. But what if I refuse?
Well, if I refuse, then I am either still in compliance with the law, in which case the mandate is not universal; or I am in violation of the law, in which case the mandate is not in any way based on taxation of an income source (for I do not have an income source).
The government cannot have it both ways, those two ways being: 1) an individual with income must purchase insurance because it is merely a type of income tax; and 2) but for those without income -- well, we will give them "credits" and force (?) them to purchase insurance anyway, because...because why?
What was up is now down and what was down is now up.
You are grasping at straws.
‘Income’ is the operative word in the 16th Amendment. Since 1913 ‘income’ has been defined, redefined, stretched into various categories.
There is taxable income. nontaxable income, dividend income, distribution income, imputed income, adjusted income and so forth.
Every person is required to file an ‘income’ tax form whether they ‘earned’ income or not.
No one said it is a tax on income, it is a tax that is managed via income tax reporting, and zero income is income. If zero income is achieved, a form declaring zero income has to be filled out.
To argue the unconstitutionality of ‘no income’ persons receiving a tax credit check for health insurance, you must argue against federal government spending decisions, and there is no constitutional restriction on how Congress decides to spend federal government tax revenue. For example, ‘cash for clunkers’, homebuyers tax credit, weatherproofing or energy tax credits, etc.
There is no such constitutional argument against such federal spending. There is only the ballot box.
No, I am simply arguing that a person with zero income — as in nontaxable, dividend, “unearned”, imputed, distribution, or otherwise — cannot be mandated to purchase health insurance if the government defends the mandate as constitutional because it is a tax on income.
Hopefully, the attorneys general of the states that are suing will be able to argue better than I :-)
Another thing I’m curious about — to pass Obamacare, they argued that the mandate was *not* a tax, but a “fee.”
Now they are saying that what they claimed was a fee is now a “tax”. Can the state attorneys general who are suing use this contradiction in any way?
Any lawyers out there?
Once again their argument is that no one is being ‘forced’, there is no ‘mandate’ to purchase health insurance. There are ‘minimal federal guidelines’ that describe ‘adequate’ health insurance, and a tax credit to those that obtain such.
That’s their argument.
Obamacare is implemented via a tax credit. Everyone is taxed and then a tax credit is offered.
Obama’s lawyers may lose on the ‘penalty’ for not having health insurance, but they get around it by taxing for whatever reason and then crediting for proof of adequate health insurance.
A status of ‘no income’ is not a way to avoid the tax, because there is a level of poverty and people derive a living in some manner unless they are a dependent and in such cases they are covered under someone’s tax forms.
A person declaring zero taxable income (or nearly zero) will be taxed ‘zero’ but will still receive a tax credit in the form of a check that will only be good for purchasing ‘adequate’ health insurance.
If there were no 16th Amendment, the Left would have no arguments to make before the Court.
Here’s the real tax system we need:
Also what they say politically such as ‘fee’ can be completely different than what Obama’s lawyers say in court.
Rush Limbaugh had a segment shortly after March 21 in which he covered the history of the court battles to defend Social Security. Publicly they were calling it a retirement pension plan and not a tax, but in court they were calling it a tax program.
It’s important to understand this point, public versus legal statements are not the same.
But this is exactly what I am getting at. What if I refuse the "credit"? If I do, then I have no health insurance.
Is there currently any law requiring a citizen to accept government assistance of any kind? As far as I know, not now. If I qualify for food stamps, but refuse them, do I violate the law? If the Feds send me an "Earned Income Tax Credit" check, but I refuse to cash it, do I violate the law? If someone qualifies for WIC, and refuses to apply, does she violate the law?
So then how can a zero-, or near zero-, income person be *forced* to accept a government credit, which then *must* be used to purchase health insurance, unless the health-insurance mandate is, fundamentally, a requirement in an of itself, and really not having anything to do with taxation per se?
Do you see what I am getting at?
I thnk you should accept that the government is going to defend Obamacare in the same way as Social Security, by having it cast as a tax.
You might argue that you don’t have to accept a social security check either if it offered to you.
If they equate the health insurance mandate with Social Security, then health insurance is no longer a mandate, but it becomes an entitlement, which is really screwy. Because you and I both know that a health insurance mandate is unconstitutional.
So I hope the states attorneys general who are suing can pull a rabbit out of their hats. After all, the Constitution *is* on their side. The enumerated powers of the federal government are very specific, and in order to find the power to force citizens to purchase health care, it must be “read into” the Constitution, because it is not among the enumerated powers — the “Good-and-Welfare” clause (thank you, John Conyers!) notwithstanding.
God, save our Republic!
Life tax eh? Debters to the State prison to open soon. Thanks Obama, you marxist/communist son of a bitch.
The House passed a bill, and the Senate passed a bill. It should have gone for reconciliation, and then back to both houses.
Scott Brown’s election meant it would not pass the Senate. So they skipped reconciliation, insisted the House pass the Senate version with no changes (Senate promised to make certain changes during budget reconciliation, later so a simple majority was all that was needed).
Result is the bill that was finally passed originated in the Senate, and was passed by the House. If it is a tax, then it did not originate in the appropriate house.
Was passed in the Senate, then passed in the House - and they sent a separate bill with the changes in it back to the Senate - the Senate then voted up the changes.
Article I Section 7 - Revenue Bills, Legislative Process, Presidential Veto
All bills for raising Revenue shall originate in the House of Representatives ...
This is not constitutional - if the courts accept it as a tax ...
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.