| | |
|
AffordableCareAct 7 - 25 Jan 2012 - Main.RohanGrey
|
| | The government wants the individual mandate to be a tax, not a penalty, for two reasons.
1. Additional Congressional Authority Under Art. I, Sec. 8 | | |
-- KippMueller - 24 Jan 2012 | |
>
> | I agree with Kipp - i could definitely imagine them deciding to remove the designation "tax" for political reasons rather than because they didn't believe it was a tax - not that the belief of congress/the administration in what metaphysically constitutes a "tax" necessarily affects whether the court believes it does. What does a tax do if not penalize those on whom it is applied, and what is a penalty if not a tax? The potentially different moral connotations typically associated with each word is of arguable relevance. Vinson's line here: "Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice in Wonderland” tack and argue in court that the Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad powers in check." is nice in theory but seems hilariously naive, given the inherent spin associated with choosing any descriptive language. Here is Justice Taft on his take of the difference between the two - i'd be curious if you any more informed than i was after reading it.
"The difference between a tax and a penalty is sometimes difficult to define, and yet the consequences of the distinction in the required method of their collection often are important. Where the sovereign enacting the law has power to impose both tax and penalty, the difference between revenue production and mere regulation may be immaterial, but not so when one sovereign can impose a tax only, and the power of regulation rests in another. Taxes are occasionally imposed in the discretion of the Legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty, with the characteristics of regulation and punishment. "
-- RohanGrey - 24 Jan 2012 | | | The detailed summary of the Act (dpc.senate.gov/healthreformbill/healthbill04.pdf) lists the payment as a penalty: "Beginning in 2014, most individuals will be required to maintain minimum essential coverage or pay a penalty of $95 in 2014, $350 in 2015, $750 in 2016 and indexed thereafter; for those under 18, the penalty will be one-half the amount for adults. Exceptions to this requirement are made for religious objectors, those who cannot afford coverage, taxpayers with incomes less than 100 percent FPL, Indian tribe members, those who receive a hardship waiver, individuals not lawfully present, incarcerated individuals, and those not covered for less than three months." Do the categories of objectors give us any indication as to whether it resembles a tax or a penalty? The fact that there are exceptions made for religious objectors indicates to me that the fee resembles a penalty more than a tax; I couldn't find many taxes out of which it was possible to opt out based on religious objection. It looks like you can do so with the social security tax if you have religious objections to being part of a social insurance system, but that doesn't seem to parallel the case here. |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |