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If Obamacare is Constitutional then....


The Court's holding on Obamacare's constitutionality was praised by many on the left, yet they may not be aware of the full implications. The holding was that under the commerce clause the bill was unconstitutional, but under the taxing power of Congress it passed the test. Can you imagine any other scenarios where such a precedent might have an effect? What if Congress passed a small tax on letters to the editor. Now clearly restricting free speech is unconstitutional, but what about a small tax? The Court just ruled that a small tax is within Congress's power when a direct mandate was not.

Democrats hold the White House and the Senate today, but someday the Republicans may hold all the elective branches of government again. What else could they tax? What about an abortion tax? What about a gay tax? What about a tax on people who speak out against the war? Why wouldn't such a law be ruled as constitutional under the same legal theory that the Court found Obamacare to be constitutional?

Did the Court just open a can of worms?


GoGreenLaw 5 years, 11 months ago

A: Yes and No. Many SCOTUS decisions that affirm uses of power are essentially "can of worms" because they are not setting a limit, meaning that the power is unlimited unless otherwise stated in the decision or in a subsequent case.

Also, imposing an abortion tax, a gay tax, etc., would not violate the Commerce Clause, a Constitutional grant of power to Congress, but the Bill of Rights. When a tax, or any law for that matter, incidentally infringe on a fundamental right, the SCOTUS will usually elevate the standard of review to intermediate or strict scrutiny, which would require the government to more strongly justify the imposition of a specific tax. Moreover, even if the court applies the lowest standard of review, rational basis, it would still be difficult for the government to justify something so preposterous as a gay tax.

jafs 5 years, 11 months ago

I think the more real concern is that they'll simply tax us for not purchasing other items.

One can make the same argument that personal economic decisions affect others, and the country as a whole.

And, that customers spending money benefits businesses, employees, etc.

What stops them from doing that, if anything?

fiddleback 5 years, 11 months ago

There is some due concern over the taxing of inactivity, and seemingly some contradiction by Roberts deeming Commerce Clause regulation of an inactivity unconstitutional but taxation of the same inactivity constitutional... However, he does point out that incentives via taxation is nothing new:

"First, and most importantly, it is abundantly clear that the Constitution does not guarantee that individuals may avoid taxation through inactivity. . . . Congress’s use of the Taxing Clause to encourage buying something is . . . not new. Tax incentives already promote, for example, purchasing homes and professional educations. . . "

As for your hypothetical taxes on other behaviors, we (unfortunately) rely on Congress to recognize and avoid such excesses, as Roberts also notes:

"Second, Congress’s ability to use its taxing power is not without limits. . . . We have maintained . . . that “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.” [citation omitted] (p. 41-42)"

jafs 5 years, 11 months ago

There's a bit of a difference between giving somebody a "tax break" for doing something, and imposing a tax for not doing anything.

Not that I like that practice either.

It's a bizarre decision - for the "tax" to have the desired effect, it would have to be high enough to affect behavior.

So, they seem to be saying the government can impose a small "tax" (I think it's really a "fine"), which won't affect behavior much, or help make up for the costs of the uninsured much.

fiddleback 5 years, 11 months ago

I suppose Roberts must see your first point as lacking a meaningful difference. That is, if a person pays lower taxes for certain activities, Roberts doesn't care to distinguish whether it's framed at the time of implementation as a tax cut or a tax raise...

This tax structure is designed to be nearly, though not quite, the cost of average premiums, so for example a person chooses between buying insurance for $1000 or being uninsured and paying $900 in taxes. So it's not small and obviously a strong incentive from a personal cost/benefit perspective.

jafs 5 years, 11 months ago

Perhaps, but I see a more important distinction there.

Not from what I've read - the tax is something like 1% of income, which works out to much less than the average premiums for a lot of people, except perhaps rich ones.

For example, somebody who makes $60,000/yr would pay $600/yr in tax penalties, which is $50/month, far less than the average insurance premium.

fiddleback 5 years, 11 months ago

It starts at 1%, but climbs to 2.5% by 2016.

jafs 5 years, 11 months ago

That would translate to $125/month for the $60K earner, still substantially below the average costs of insurance.

And, do you have a source for that? Others have posted that, but I've not read it anywhere else.

jafs 5 years, 11 months ago

Thanks - that's helpful.

The penalty is on income above the filing threshold, so that $60K/yr person won't pay 2.5% of $60K - it'll be even less.

So, the penalty will be nowhere near the costs of health insurance, except for rich folks.

fiddleback 5 years, 11 months ago

Try reading it again. To me, it sounds as though that 60K person would indeed pay 2.5%, as would any single person making over $9,500 or couple making over $19,000. So that 60K person would pay $1500 or $125 a month.

jafs 5 years, 11 months ago

I think not - they pay on income above the taxing threshold, so it wouldn't be on the entire $60K - it would be on $60K-$9,500, if I remember correctly. Of course, either way it doesn't come close to the costs of insurance, right?

fiddleback 5 years, 11 months ago

Yes, I follow now; so it's $1262 or $105 a month. While not really comparable to the cost of actual coverage, it's presumably structured to be enough of a bite to make shirkers reconsider going without. And, if they don't pay the tax, there are no criminal penalties, but those with modest incomes would lose whatever refund they had coming, and those with higher incomes may end up sued by the IRS.

jafs 5 years, 11 months ago

I don't know about that.

A person making $60K can pay that fine/penalty for about 1/3 to 1/4 of the costs of buying health insurance, and that's with group coverage. Why wouldn't they just pay the fine?

fiddleback 5 years, 11 months ago

Yes, some will just opt for the tax; the CBO estimates about 4 million. http://www.examiner.com/article/the-fact-and-fiction-behind-the-obamacare-tax-claim I suspect they tried to find a balance between estimates of how many will opt to pay the tax vs. how much tax is needed to support the program.

Ultimately, I'm not opposed because just like taxes that pay for infrastructure and services (not all of which you'll use), insurance systems are inherently collectivist. Therefore, I find individual payment into the system, whether it's buying one's personal coverage or paying a smaller substitute tax, to be appropriate.

jafs 5 years, 11 months ago

Insurance is inherently collectivist, which is one of the problems with it, in my view.

If somebody is young and healthy, and doesn't need it, I find it objectionable to try to force them to buy it, or pay into the system - I had no health insurance from my 20's to my 40's, didn't need it, spent very little on health care costs (which I paid out of pocket).

Also, part of my distaste is that we're forcing (or trying to encourage) people to buy a product from private insurance companies - if we want to provide insurance for all, we should do it at the government level - tax everybody and provide Medicare for all.

jafs 5 years, 11 months ago

When phased in, it will be 2.5% on income that exceeds the federal threshold for filing income taxes, according to your link.

I suppose that could be interpreted two different ways.

beatrice 5 years, 11 months ago

They have opened a can of worms with this tax, and if you look you can already see how those worms are starting to eat their way through the ozone and ... oh no ... it is true! ... The sky is falling! The sky is falling!!!! Everyone, run for your lives ... people will now be responsible for carrying insurance instead of allowing everyone else to pay their way!!! The horror, the horror....

I don't like so much of my taxes going to pay for the bloated defense department. Guess I should whine about it on a blog. That will show everyone what is what.

jafs 5 years, 11 months ago

You really must be trying to miss the point, because you're too smart to miss it by accident, after I've explained the issue a few times.

With this ruling, the federal government now has the authority to "tax" people for failing to buy a product from a private business.

This is different in kind from any other taxes I know of, and certainly opens the door to taxing us on any number of "non purchases" - I think it's wrong.

The question of how tax revenue is spent is a different question, of course, but if you don't like your taxes going to the defense department, then you should by all means communicate that to our elected officials, and vote for candidates who may spend less in that way.

beatrice 5 years, 11 months ago

As it is being discussed, insurance isn't a "product." It is not like electric cars nor healthy food items. Insurance is a safeguard (guarding against excessive bills and making sure people have access to healthcare), much as our military is a safeguard (guarding against enemys and making sure people have access to their constitutional rights). Once you stop thinking of health insurance as a product, perhaps you can see why a tax covers it.

jafs 5 years, 11 months ago

Of course it's a product - well, perhaps more of a "service".

If we wanted to use tax revenue to provide health insurance, a la Medicare, this would be a different issue.

As it's currently set up, this is a tax on the failure to purchase a product/service offered by private companies, of which there are many other examples.

Why do you miss this essential point? I don't argue against Medicare, which is using tax revenue to provide a service. I argue against mandating that people purchase something in the private sector, or pay a penalty for not doing so.

beatrice 5 years, 11 months ago

Are all doctors who receive Medicare payments government employees? Don't most actually work in the private sector, yet they are getting paid using taxpayer funds for their services, are they not? Think of insurance companies like doctors. They are part of the private sector, and now they work in accordance (in conjunction?) with the government. It isn't that different.

Besides, in the end, be it directly to the government to pay the insurance bill or to the insurance company, it is money out. I said it was a tax before the ruling (no, I don't care what Obama calls it) and I still believe it to be.

The issue of people not having access, being driven into bankruptcy because they can't pay their medical bills, people being denied coverage, children being kicked off family insurance plans, etc... are all problems facing our nation. Sometimes, we do call upon our legislators to work on fixing issues facing our nation. You may not agree with the solution, but others do agree with it and the Supreme Court ruled it constitutional. As you say yourself, if you con't care for how the legislators went about doing something to possibly correct the problem, you are free to contact your legislators and to vote in people who claim they will vote according to your desires.

jafs 5 years, 11 months ago

You must be trying to miss the point - I don't know why.

I haven't complained about Medicare paying private doctors, although I do find it a bit problematic that Medicare is letting private insurance companies administer the program - I think the government should do that.

The problem is how they're getting the money - they're taxing people because they fail to purchase a good/service in the private sector. This is the first time the federal government has done that, and I think it's a bad idea.

It gives the federal government too much power - they can now tax us if we don't buy any product they want us to buy - tvs, cell phones, etc.

Why is that ok with you?

Liberty275 5 years, 11 months ago

Fair enough. I suppose you would be OK with a $1000 penalty/tax for not paying $3000 per year to fire an M16 a certain number of times at a round metal disk. You're doing so protects society from foreign evils of terror and koreans, and you will become more proficient at hitting targets at 1000 yard downrange.

I'm certain you would find such an idea reprehensible, as you should. Unfortunately, you are cheerleading for the same excessive form of government intrusion into our lives because you think some forms of repression based on punitive taxation are better than others.

You don't care if it's wrong or right, just that it fits your politics.

beatrice 5 years, 11 months ago

It doesn't fit your politics, so you think it wrong. (See, I too can play that game.)

We don't allow people without insurance to die in the streets if sick or injured, thus we should make sure that all people have access to the insurance that will cover their bills should they find themself in need of healthcare. Or are you of the mindset that they should be allowed to die?

It isn't the best that we could have done, but it is a move in the right direction, in my opinion.

Topple 5 years, 11 months ago

Maybe the problem is the cost of insurance, not the use of medical care by individuals who are uninsured. There are people who visit the doctor a dozen times a year for mundane issues that could be solved with a bandaid and some ibuprofen, but insist on wasting a doctor's time.

I pay thousands into insurance and visit the doctor maybe once a year, on average, pay a co-pay, and save myself $50 with insurance. Quite the deal to tell the healthy people to cover the unhealthy. Throw away thousands a year NOW so that when you're old, the young people can throw away thousands of their money for you.

Obamacare, the new unsustainable Social Security Ponzi Scheme.

Satirical 5 years, 11 months ago


I don't think anyone would disagree (on second thought, Liberty_One might) that the Federal Government has the authority to levy a tax if it wanted to implement universal health care; or that is has the ability to tax income, property, imports, or certain activities. It can also give a tax break if you decide to engage in certain activity or make certain purchases to encourage behavior. In other words the government can tax you when take action.

However, giving the Government the power to tax a child as soon as it takes its first breath is something new. The Government is now taxing life. It is taxing inaction. This is an enormous change, and as Justice Kennedy put it...changes the nature of government in a very fundamental way.

The point Liberty_One is trying to make (even though I seriously doubt what he proposes would ever occur), is that if the Government can tax life, when can it also tax "liberty" and the "pursuit of happiness?"

beatrice 5 years, 11 months ago

The new law doesn't tax the child, but rather the parents. Parents are also responsible for making sure children attend school, so the idea of parents being responsible for their children isn't that radical.

However, nice touch with the taxing the "liberty" and "pursuit of happiness" line.

Satirical 5 years, 11 months ago


The parents are still taxed on behalf of the child as soon as it takes its first breath. They are still taxing life.

I digress. I think we are getting caught in the weeds of my dramatic example. The issue is, what is the proper role of government? Should the government be able to tax someone due to their inaction? If the Government can tax an inalienable and fundamental right like Life, where does it stop? The government can now apparently compel you to do anything under its taxing power. It could make you get married to a one legged, left handed, circus clown ; )

Or as Liberty_One asks, if the Government can use the Taxing Power to compel citizens take a certain action/inaction which is otherwise Unconstitutional, are their other ways the government could violate the Constitution as long as it uses its taxing power?

For example...it is unlawful to place too many barriers for a woman to have an abortion, but would a tax (penalty) on women who want an abortion of a few thousand dollars (or whatever the penalty is for ObamaCare) be lawful? It is a scary slippery slope (say that five times fast).

"However, nice touch with the taxing the "liberty" and "pursuit of happiness" line." - bea

Thanks! Happy 4th!

Katara 5 years, 11 months ago

In KS, women who wish to have abortion coverage must purchase a separate policy for it. Women are forced to pay extra for coverage for a legal medical procedure. Is this not essentially a tax (penalty) on women who want to have that service covered should they ever need or want an abortion?

Your scary slippery slope already happened and it had nothing to do with ACA or the Supreme Court decision.

Satirical 5 years, 11 months ago


(1) You only addressed the example, not the ultimate question. Please opine on both if you would be so kind.

(2) The burden to which you are referring is not a burden imposed by the government, but the private industry. There are no laws which prevent a private insurer from providing abortion coverage in its standard policy. There is simply no law requiring it either. The government is neutral allowing the private sector to decide. Therefore it is not burden (or tax) imposed by the government.

Paying more if you want more isn't a new concept. The government requires you to buy basic car insurance (if you own a car). If you want full coverage you have to pay more. Why should health insurance be so different? If you want greater health coverage you pay for it. That is not a penalty, it is consumer choice. (Choice -- something that is taken away by ObamaCare since I can't choose whether I breathe or not).

While I understand it would be a benefit to women who want to have abortions to not have to pay extra, the government declining to give a benefit (inaction) is not the same as imposing a burden (action).

Katara 5 years, 11 months ago

In KS, there is a recently passed law that prevents a private insurer from providing abortion coverage in its standard policy unless the woman's life is at risk.

If a woman in KS wishes to have abortion coverage for any other reason, she is forced to purchase a separate policy. This is Kansas law and is a burden imposed by the government.

Topple 5 years, 11 months ago

No, I call that insurance. If I live below sea level and want flood insurance, I buy it. If I want dental insurance, I buy it. If I want renters insurance, I buy it. If you want abortion insurance, you buy it. What's confusing about this?

beatrice 5 years, 11 months ago

Sati, so I didn't have to marry a one legged, left handed, circus clown? Now you tell me!

We take out taxes for Social Security because some people do not have enough money to cover their expenses in their twighlight years. It is a means to secure our society through supplementing the pocketbooks of the elderly. Not all people need such extra money to be given to them and some will never get to use it at all, but it is a system of taxation from everyone to help secure our nation. The ACA is, in many ways, similar. Yes, as a member of our greater society, I am okay with that, even though I already have wonderful insurance through my employer. Other issues on taxes will have to be debated as they appear. Until then, it is just a game of "what if...?" It is better to take each scenario as it arrives.

Satirical 5 years, 11 months ago


Sorry, I didn't mean to insult your hubby. Tell him no hard feelings (even though I still don't trust anyone who is left-handed).

I think we are talking about two different things. While I may not agree whether the government "should" impose a tax and grant universal healthcare, I do not disagree that they "could" do such a thing. A program like social security but for healthcare would almost definitely be Constitutional.

However, that is not what I have I problem with. I take issue with the government using its taxing power to do something which would otherwise be Unconstitutional. The Commerce Clause doesn't give the government to power to mandate everyone purchase a product or service, or have the power to tax me because I breathe. Somehow in order to save this bill Justice Roberts said the taxing power can do what otherwise wouldn't be allowed.

Liberty_One brings up a valid question of whether the taxing power, if interpreted in allowing what would be otherwise Unconstitutional, could be an end-run around other civil liberties. This is not saying the sky is falling for sure, but there is the potential for encroachment. To borrow a (slightly modified) phrase - The threat to freedom anywhere is a threat to freedom everywhere.

beatrice 5 years, 11 months ago

All fair and valid points. I did not know which way the ruling was going to go and i do find the entire thing quite interesting. However, i still believe we will need to take future situations, or attempts to make an end-run on other ciivil liberties as you put it, on when they appear.

jafs 5 years, 11 months ago

Of course they can, although it's more accurately called a "fine" or a "penalty" in my view.

But, this is the first time such a thing has been imposed for not buying a product on the private market, as far as I know.

Are you really interested in letting the federal government penalize you for not buying a tv?

Terry Sexton 5 years, 11 months ago

If someone chooses not to buy a TV, unlike choosing not to buy health insurance, I don't have to subsidize their viewing when they watch one elsewhere. I still have to subsidize their medical care, however, when the set falls on them.

jafs 5 years, 11 months ago

That could be - of course, stores can drop prices if they have more customers as well, so an individual decision not to buy might keep prices higher.

The fact is that we're all connected in a number of ways.

And, again, this decision doesn't say the government can impose this tax only on the failure to buy health insurance, so it could be levied on any purchase they choose to use.

jafs 5 years, 11 months ago

Well, I looked that up quickly.

It's by no means agreed on by legal scholars that that sets any sort of precedent for this decision - the authority to create and regulate militias is expressly given in the constitution.

So, as part of that authority, the federal government can easily mandate that soldiers provide their own equipment.

That doesn't mean that in other situations, the federal government has, or should have, the same power.

jafs 5 years, 11 months ago

Maybe, maybe not.

How broadly the general welfare clause should be interpreted is a matter of debate, and isn't settled by any means.

jafs 5 years, 11 months ago

Also, if I remember it correctly, the clause gives the government power to tax and provide for the general welfare, which to my mind means things more like Medicare, a government program paid for by tax revenue, than requiring people to buy things from private companies.

jafs 5 years, 11 months ago

Also, as far as I'm aware, those penalties are imposed by the state, not the federal government, right?

Liberty275 5 years, 11 months ago

No. Only a judge or jury can impose the "tax" on you if you have been found guilty of some crime. That is called due process, and is wholly missing from the health care thing. Your metaphor is messed up as it not illegal to refuse to purchase health insurance.

A better metaphor would be "You are breathing. We can't put you in jail for not dancing, but we'll tax you some more if you don't started doing it".

Satirical 5 years, 11 months ago


Those are examples of crimes. Are you suggesting the Government should make it a crime not to buy health insurance?

Satirical 5 years, 11 months ago

Last time I checked there is a difference between criminal law and civil law. Violating every law isn't a "crime."

Satirical 5 years, 11 months ago

So are you backing away from your statement that violation of any law = a crime?

Satirical 5 years, 11 months ago


I appreciate the Wikipedia definition, but the criminal code is very small compared to all the laws which are passed and impose a penalty if not followed. "Crimes" usually have a potential penalty of jail time, while penalties for non-criminal violations of the law are typically just a fine.

I guarantee you that President Obama would not say it is a crime to not buy insurance. (Try selling that to the American public). He would say there is a penalty or fine. It is not part of the criminal code, and therefore it is not a crime.

Topple 5 years, 11 months ago

Are either of those based on income? Are either of those trying to force you to purchase something?

scaramouchepart2 5 years, 11 months ago

Those are not taxes - they are fines. Taxes and fines have very different meanings.

Alexander Smith 5 years, 11 months ago

Well here it is, most states..well I think EVERY state mandates car insurance. THis helps keep car insurance down and keeps the costs to the public at a minimum. NOW, the reason our medical is so expensive is 1.) its not kep in check and 2.) we are having to pay for those who don't because doctors/hospitals cannot refuse life saving treatment. SO we pay for it.

Now with mandated insurance its the same effect as mandated car insurance. What is the big deal. Also for those who are SO against it, stop being a paranoid-selfish-GOP and think how much is going to impact you on taxes. It is going to be so small that you might have to sacrifice 1 or 2 number 1 meals at McDonalds for a YEAR!

For a country that thinks it so great and equal and fair, I have never seen a country full of so many selfish-cut-throat-people (mostly GOP). We are America, we stand together, our constitution is "WE THE PEOPLE". Yes there are people that abuse the system, there is no perfect system. Also.. and this is the killer part.. all the people that are against it will be the first to pound their fists at the government for help when in need but they are the ones that don't want to pay higher taxes so that the government CAN do their job. A big chunk of the people who are against it are the same ones that have 200+K homes, 34k+ SUVs, iPads, iPhones, HUGE TVs, go out for StarBucks every day.. but yet won't sacrifice a few coins to the Salvation Army at Christmas or Pay a percentage point or two a year increase in taxes to help the Government do its jobs.

I was at a clinic last winter and a mother showed up with a child who was suffering from the Flu, the child was maybe 5 and was in pain. The mother was in panic and the clinic would see her if she had insurance if not she had to pay up front. She said she did not have insurance but could only pay 40 dollars. The clinic said they couldn't see her then and she would have to go elsewhere. The kid was in horrible condition and no one would help but myself and this old guy stood up and told her to stop. Both of us pitched in to help the lady out and we paid her bill so the child could get help. THIS IS the American SPirit, and with Obamacare she would of gotten help without us having to jump in. Those against the program ... think about it.. and think about it hard. Yes there are people that abuse the system but a huge chunk of the people out there are not and THINK of the kids and children who are suffering while you sit in your house watching cable TV or talking on your 150 dollar a month Cell phone.

And for those religious GOP conservative freaks.. what doyou think God has to say about those fighting it? Children suffer because you can't sacrifice a few dollars a year while you live the lifestyle you do now with iPhones, 40 inche TVs and daily visits to a coffee house? Not saying the Democrats are much better but in the end they are because THEY will at least sacrifice some luxury to help those in need.

Liberty275 5 years, 11 months ago

"well I think EVERY state mandates car insurance"

No state mandates car insurance. Lucky for me your false premise saved me from reading the rest of that blob. Also, brevity is kindness.

Topple 5 years, 11 months ago

Not sure you could have showed your stereotyping ignorance any more clearly, ironmouse. Surely you have imperical evidence to support any of your rediculous assertions about having "200K+ homes, HUGE TVs, go out for StarBucks every day" but don't support charity, or how "religious GOP conservative freaks" make no sacrifices to help those in need while talking on their $150 / month cell phones.

Should I interrogate every Liberal sporting a Mac Book Pro why they couldn't have traded down for a cheaper alternative and given the difference to charity? Stereotypes are fun.

Daniel Dicks 5 years, 11 months ago

Anyone feel free to correct if I am wrong but wasn't Civil Rights Legislation ruled "Constitutional" under the commerce clause rather than the equal protection clause as most assume?

And it really doesn't matter does it?

jafs 5 years, 11 months ago

Yes, from what I've read, the Commerce Clause was used for the CRL.

And, it may be a flawed use of that, when it's applied to local businesses that don't operate in an interstate manner.

It matters if one cares about the ever expanding role of the federal government.

omgsmileyface 5 years, 11 months ago

If you dont take Part B of Medicare when you are first eligable you pay higher premiums when you do take it this is the same thing..... and alot of people dont know this and get screwed.... at least we all know unless you are living under a rock

Gotalife 5 years, 11 months ago

I am so sick of Republicans talking about nothing but Taxation...Get over it, pay your fair share, and help care for people who need it. Also, read the provisions. This is not a flat, across the board tax on everyone like conservatives are trying to say. The fear mongers need ideas of their own instead of constantly degrading and trash talking current administration ideas. And another thing, I find it really funny that so many conservatives think they know more than the Supreme Court.

Liberty275 5 years, 11 months ago

I'm not a republican, but I would guess the bulk of this tax is going to be paid by people that vote democrat. Of course that will change when income tax refunds start evaporating.

jafs 5 years, 11 months ago

With 5-4 decisions, there is substantial disagreement on the SC.

That means that people who disagree with the decision may be in very good company.

I'm not a Republican, but I disagree with this decision.

Topple 5 years, 11 months ago

It doesn't end.
If the government can't make a law forcing you to [insert anything], they'll just be within their rights to tax you for not [insert anything].

Satirical 5 years, 11 months ago

I think there isn't enough transfer of wealth from the young to the elderly. I mean it's not like we have Medicare, Social Security, or huge debt from institutions of higher learning. How else could we make the young even poorer? I got it! Make them pay for even more stuff that primarily benefits the elderly like universal health insurance. That's the ticket!

"Older Americans are 47 times richer than young Americans" http://money.cnn.com/2011/11/07/news/economy/wealth_gap_age/index.htm

The Baby Boomers are at War with the younger generation.

sourpuss 5 years, 11 months ago

Per the Constitution itself, if the SCOTUS deems that a law stands as Constitutional, then it is. The law was written and passed by one body, signed into law by a second, and upheld by a third. Let it go already.

Liberty275 5 years, 11 months ago

Would your hypothetical "gay tax" also apply to bisexuals? If there is no heterosexual tax, there will be no choice but to tax on a per-sexual-act basis, with different rates depending on the gender of your partner.

beatrice 5 years, 11 months ago

Bi-sexuals would have to pay half of the gay tax. Duh.

Kontum1972 5 years, 11 months ago

well in a few more months we might not have to worry about all this crap....the Four Horsemen will be making their appearance....things are not looking good on this big blue marble....

Alyosha 5 years, 11 months ago

It's simply incorrect, and evidence of ignorance of our country's history, and specifically the actions of the Founders, to believe and assert that the Federal government has not now, nor ever asserted, such power to compell citizens of the States to purchase something.

For instance, Congress enacted, and George Washington signed, an act mandating that "every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder."

Moreover, "In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[...] Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams."

See http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/06/26/george-washingtons-individual-mandates/

Everyone is free to disagree to disagree with the policies enacted in the PPACA, but to assert that it is an unprecedented power grab, or unconstitutional, puts you firmly in opposition to the Founding generations' understanding of the Federal government's power.

Satirical 5 years, 11 months ago

Your first example requiring white male citizens to purchase a weapon was for the purpose of being in a militia. The power of the Federal government to draft citizens for the defense of the nation is not being challenged. Requiring something for the defense of the nation is completely different from requiring a citizen to purchase something simply because I breathe.

You second example is a requirement based on action taken by an individual. If you own a ship and hire seamen, you must have insurance. This is no different from requiring car owners to purchase insurance. Again, this is completely separate from what ObamaCare requires. You can choose not to purchase a ship or a car. I can't choose not to breathe. I have a fundamental right to life endowed by my Creator. I know many intelligent Liberals, so I am not sure why many Liberals don't understand this distinction.

In conclusion, ObamaCare is an unprecedented power grab and is not in line with the Founding generations' understanding of the Federal government's power.

jafs 5 years, 11 months ago

I imagine that this decision means that mandate wouldn't stand today.

Satirical 5 years, 11 months ago


First, do you have a cite to backup your statement?

Second, even if true it would still be a government requirement based on action. Again, this is exactly the same as if you choose to buy a boat. You can choose not to purchase a boat or be a seaman, and thus not be subject to the requirement. You can't choose not to breathe.

jafs 5 years, 11 months ago

Well, I looked up the militia acts - the constitution expressly gives the right to create and regulate militias to the federal government - that's where they get the right to do that.

And, requiring a business owner to provide insurance may fit under the commerce clause, although I'm not sure about that really - I'd have to do more research.

But, requiring individuals to purchase something under the commerce clause has just been clearly ruled on by the SC - they say it's not correct.

I wonder if that means that the "seamen" requirement would be overturned.

ivalueamerica 5 years, 11 months ago

one trick pony.

Gay marriage....the sky is falling

Access to health care...the sky is falling

A black president...the sky is falling.

I can not imagine what it is like to live in your world of fear and hate and panic, but I am lucky, I have been able to avoid that and remain in reality.

Satirical 5 years, 11 months ago

In other words....nothing to add to the discussion. Thanks for your input.

Mike Ford 5 years, 11 months ago

eight posts out of sixty seven posts....you're keeping your ego in check liberty... good job.

I asked this question of Mr. Katsis at the Dole Center Constitution Days meeting in September 2011 before he testified before the SCOTUS a couple of months ago.

There were a whole series of laws connected to the Indian Non Intercourse Act of 1790. One of the laws dealt with trade. Traders going into Indian Country had to be licensed with the US Government to do so. Mandated licenses. The Choteaus traded with the Kaw Nation in the early 19th century before removal. Without a license a trader couldn't do business in Indian Country. Tribes had to do business with these traders. Congress had plenary power over dependant states and tribes and traders under the Commerce Clause. Indian tribes dealt specifically with certain traders attached to them by federal licenses. What difference is there between this and the health care law? the person arguing in favor of the health care law said my question could wind up in a scholarly journal while the Katsis guy against the health care law had no answer. Was he beyond the scope of his right wing talking points? probably.

jafs 5 years, 11 months ago

The difference is that regulating interstate commerce, and commerce between Indian tribes is precisely the power given in the ICC to the federal government.

Nothing in that power gives the right to require individuals purchase certain products in the private sector or pay a fine for not doing that.

Liberty275 5 years, 11 months ago

That's so cool! You learned to use paragraphs. Kudos!!!

KSWingman 5 years, 11 months ago

"There were a whole series of laws connected to the Indian Non Intercourse Act of 1790."

And yet, you were still conceived and foisted upon us.

Looks like the law didn't work too well.

Satirical 5 years, 11 months ago


If you would like, I could engage in a argument for the sake of argument to your ultimate question....

If I were arguing against your statement that the taxing authority grants a separate power that can make any government action Constitutional, when it would otherwise be Unconstitutional, I would argue that your examples (free speech, the right to privacy including abortions and being LGBT) are already specific rights in the Constitution (the right to privacy being implicit in its penumbra of course). Therefore, any effort to curb free speech would be met with the same burden on government (strict scrutiny, etc.).

However, the right not to be taxed because one breathes has never been read into the Constitution, therefore there is was no level of scrutiny to tangle with. It was simply a question of whether the government can use the tax code to compel action or inaction. So, I think your argument would have greater merit it if your examples were of something that isn't protected or prohibited by the Constitution (or hasn't been read into the Constitution).

Satirical 5 years, 11 months ago


Correct , but the right to property (or liberty) is not at odds with the power of the Government to tax. It is Constitutional for the government to tax property you own or purchase. Unfortunately there is no higher standard of which I am aware other than the requirements laid out in Article 1, Section 9, the 16th Amendment, and the General Welfare Clause.

I think you would be interested in U.S. v. Butler 297 U.S. 1 (1936) and Helvering v. Davis, 301 U.S. 619 (1937) http://en.wikipedia.org/wiki/Taxing_and_Spending_Clause

Did you ever have the chance to take a tax class with Prof. Dickenson?

Satirical 5 years, 11 months ago


I thought I read somewhere that you attended KU law school. My mistake.

Prof Dickenson, even though very liberal, is an amazing instructor. Although most of the class is figuring out what the tax code says, the class starts by explaining where the government's taxing power comes from and some of the common law history.

Did you have the opportunity to take any tax courses in school?

Mike Ford 5 years, 11 months ago

that law didn't work very well because the thirteen colonies violated it and had immunity from lawsuit from 1790 to 1973 until the US Government under President Nixon of all people decided to side with the affected Malicite, Passamaquoddy, and Abnaki tribes and sue the State of Maine which led to the Maine Indian Settlement Act of 1980 signed into law by President Carter giving back over 200,000 acres to three tribes. Later the Narragansett and Mashantucket Pequot tribes sued for violation of said act as did the Catawba Tribe of South Carolina and all were granted lands for violation of said act. The Robideaux trading outfit based in Centropolis, Kansas, as licensed traders for the Sac and Fox Nation of the Mississippi River ripped off and intimidated the Sac and Fox Tribe and the US Government running lines of credit to steal lands and selling poisoned whiskey operating as a fraud ring and causing that Sac and Fox Nation to remove to Oklahoma between 1867 and 1886. Many Kansas tribes lost lands to fraud rings which Kansas politicians were often involved in. John Roberts acting as a clerk gave wrong advice on the Sherill V. Oneida Indian Nation case dismissing two centuries of land claims involving the Indian Non Intercourse Act of 1790 and the Oneida and Cayuga Tribes in N.Y. State. Nothing in response to history except snide uninformed comments. Maybe you should run for a tea party candidacy.

Satirical 5 years, 11 months ago

Thread hijack alert! Thread hijack alert!

Set phasors to "stun" and set eyes to "ignore".

beatrice 5 years, 11 months ago

Sati, to stay on topic, you have asked if this is a step too far and I say it is not, although I acknowledge it is a big step. Then again, a big step was needed to get something done. Knowing that 30 million people will now have access to health care they can afford who previously did not is a great thing. I do not see how anyone can fall in line with the idea that those 30 million shouldn't have access to affordable health care (via insured care). Romney did it on a state level and Obama did it on the national level. Kudos to both, but I still have not read anyone say why someone in need of care in Massachusetts is somehow different from someone in need of care in Texas, or Kansas, or Arizona, etc....

A single-payer system would be a better step, but that wasn't about to happen.

Regarding the arguments made by others that now the government can make us buy television sets, or certain types of cars, or phasers that have a stun setting, those are "sky is falling" responses, in my opinion. Like those who said allowing Conceal and Carry holders greater access to carry would lead to bloodshed in the streets like the imaginary days of the Wild West, or that allowing gays to serve openly in the military would result in massive cases of violence against gay soldiers, in reality, these things didn't happen. The governemnt isn't going to make people buy certain types of television sets.

jafs 5 years, 11 months ago

Why not?

Individual decisions about what and how much to buy affect others, in a variety of ways - they help businesses, employees, increase tax revenue, etc. It is obviously better for our economy for people to buy things, without which it would come to a screeching halt.

Somebody in Massachusetts is different from somebody in other states because they live in different states - the whole idea of our structure is that states can and should operate differently, rather than operating in the same way. Think of it as different experiments in different states.

That way, people who prefer certain ways of governing can move to certain states.

I think that if we're going to provide health care to people that can't afford it, it should be done directly, with tax revenue and directly socialized care - insurance isn't the best vehicle for that, in my view.

"to get something done" is perhaps not the most precise goal to have.

beatrice 5 years, 11 months ago

Is a person's need for medical care different in Mass. than in another state? That was and is the question.

I agree that mandatory insurance isn't the best plan possible and have said so on more than one occassion. Given the fight against the current plan, one that used to be considered the conservative approach, what do you think the odds are that true socialized care would get through? The goal was not just to get something done, but rather to do what they could do given the present and intense level of opposition against doing anything at all. Doing something is better than doing nothing. Waiting until Hell freezes over and legislators agree to impliment -- state by state -- true socialized medicine is the same as doing nothing.

jafs 5 years, 11 months ago

Possibly - different states have different populations, and they're in differing states of health.

"Doing something is better than doing nothing" - not necessarily, one can make things worse.

We already have Medicare and Medicaid at the federal level - how hard would it be to simply expand those a bit if we feel it's warranted? Even that would be a little better than this bill.

jafs 5 years, 11 months ago

And, according to this decision, they can't "make us" buy things, but they can "tax" us if we fail to do so.

Is that ok with you if applied to other purchases, ones that you'd prefer not to make?

Satirical 5 years, 11 months ago


So I bought that GM (Government Motors) car even though I didn't have to!?! I hate metallic mint green!

I want affordable health care for everyone as well, I just believe there is a better method. I think there are plenty of reforms which would encourage competition, reduce tort claims, and other measures which could drive prices down, to make health care affordable to almost everyone. I would rather have cheaper health care coverage than having the government enter the market (which I have no doubt will increase rather than decrease costs) Then Medicare and Medicaid could take care of the rest.

Again, I agree there is a problem, I disagree on what is the best solution. I definitely disagree that the means (taxing someone because s/he breathes) justifies the end (universal health care).

beatrice 5 years, 11 months ago

Fair enough. I, too, don't feel this is the best possible solution. It is, however, the solution that the bickering, party-over-country politicians (both parties, by the way) would allow to get through. I do believe it is a better solution than doing nothing, but I do see why some do not care for the mandate. I really do understand the argument against it. Again, as with all the rest of my statements, this is my opinion.

However, the argument still being levied by some that it is still unconstitutional is something I can't just accept. It has been ruled as constitutional by those put in the position to make such a ruling. It is constitutional, even if people don't like it.

beatrice 5 years, 11 months ago

jafs: "... the whole idea of our structure is that states can and should operate differently, rather than operating in the same way. Think of it as different experiments in different states."

So you really believe that things like Social Security should be up to the states? If you live in Florida you get Social Security, but you don't if you live in Alaska? Should we do away with all federal taxes then and allow only states to gather taxes? Further, do you believe taxes that go to the feds should be determined by the states, so if you live in Texas you pay 70% to the feds, but in California you would pay 4%? None of that would even make sense.

We are separate states, but we make up one nation. Things determined right for the nation should apply to all states, and yes, this even includes things in which you do not agree.

Regarding being okay with the government making me buy a list of things -- I can only say that I'll have to wait until I see the actual list. To speculate on what the feds may or may not do because they are requiring us to do this one thing now is just too much of a Chicken Little game for me to take part.

jafs 5 years, 11 months ago

No, some things are clearly in line with federal scope and authority - the ability to tax and provide for the general welfare, for example.

So, programs like SS, Medicare, etc. are perfectly good uses of federal government, in my view.

That doesn't mean, on the other hand, that the federal government is supposed to have unlimited power, and the states little. It's a balancing act, one that leaves a lot of latitude to the states, but preserves a role for the federal government.

"Things determined right for the nation should apply to all states" - wow, that's pretty sweeping - who determines that and how? I notice you use the word "right" rather than constitutional, or legal.

The founders weren't libertarians, so they believed in a role for the federal government, but it was limited, far smaller in scope and power than the current day federal government. And, they believed in wide latitude for the states, as long as the powers weren't reserved to the feds, or prohibited to the states, by the constitution.

So, even if you don't want to buy something, you may be ok that the federal government will tax you if you don't, depending on what it happens to be?

There isn't something about the reach of the federal government into that area that bothers you at all?

jafs 5 years, 11 months ago

Yes, you're undoubtedly right - the founders weren't uniform.

I should have said that the system they designed wasn't intended to be a libertarian one, one that believes taxation is theft, etc. since they wrote Article 1, Section 8 of the constitution.

If people voted on that section without reading it, I can't help them. It's very clear that it gives the government the power to tax.

"Power" does in fact usually come from greater strength, which is sometimes found in greater numbers, but not always, of course.

Either way, the power to tax is clearly given in the constitution.

beatrice 5 years, 11 months ago

jafs, I have not said that the feds making us buy things (in general) doesn't bother me. However, we aren't talking about things in general, we are talking about this specific thing -- health insurance. To discuss other things is speculative. Why not stick with discussing health insurance?

On the "Things determined right ... " statement, yes, that was poorly stated. It clearly should have read "Some things ..." Examples could be laws against discrimination. Are you suggesting that states should be able to determine what groups we can and what groups we can't discriminate against? Do you think Arizona should be allowed to deny housing to Hispanic citizens, since they might harbor their illegal friends from across the border? Some things deemed "right" really are, wouldn't you agree?

jafs 5 years, 11 months ago

Because this decision allows them to tax/fine us for any purchases they choose.

And, for precision's sake, you really should stop saying "making us buy things" - this ruling specifically prevents the government from doing that - it allows them, rather, to tax/fine us if we fail to purchase them.

Some things deemed "right" may be, but there's a lot of disagreement about moral values and philosophies in this country. What do you think the correct procedure should be to determine those and how should they be implemented?

Religious folks (some of them) would like for their values to be imposed nationwide because they're certain they're correct - I assume you'd be against that?

Generally speaking, I believe that the constitution, rather than somebody's personal moral values, or religious ones, should be the touchstone for our laws and policies. And, I believe it's important to understand what the founders intended to do when they created our nation.

So, if we're not talking about constitutionally protected rights, then I think that states should have latitude to operate differently from one another.

By the way, I think the use of the ICC to support civil rights legislation was deeply flawed, in that it's intended to apply to interstate commerce, and was applied even to businesses that only operated within a state. If we want to protect people from discrimination, we should find a better reason/way to do it.

beatrice 5 years, 11 months ago

You are right. We shouldn't be discussing other issues, moral values and other laws. The more we do, the further away we get from this case, this situation, this time. Continuing to argue around "what ifs" is going nowhere.

So, we are talking about a specific, constitutionally protected right, which in this instance is the right of the federal government to require everyone to purchase health insurance. It is a constitutionally protected right, and the premise of this blog is flawed. There is no "If it is legal" nonsense -- it is legal, according to the Supreme Court. It isn't a matter of who likes or dislikes it. Once legislation is passed that places a tax on letters to the editor or religious based moralities being placed on us or whatever far-reaching scenario you can imagine, we can discuss them then. For now, they have not taken place. I stick with what I said earlier -- to argue those now is playing a Chicken Little game.

There is no "if" on whether or not ACA is constitutional, as suggested by the blog's title. The Supreme Court has ruled -- it is. We can do away with the "if."

jafs 5 years, 11 months ago

You keep getting it wrong - this ruling specifically did not uphold the right of the government to "require" the purchase of health insurance - it upheld their right to "tax" people who don't buy it.

Whether or not this is constitutional is still a matter of debate and disagreement, especially since virtually 1/2 of the court disagreed with the majority opinion.

If the Court ruled that DOMA was constitutional, would you then simply agree that gay and lesbian folks have no constitutional right to marry?

I say that calling this a "tax" is obviously absurd, since it functions as a fine or penalty, rather than a tax.

You seem too willing to simply accept a very divided court's ruling, but I suspect it's only because you agree with it, and would be far less willing to do that if you disagreed.

beatrice 5 years, 11 months ago

jafs, I understand what the ruling did and did not do. However, I recognize the end result as I am sure you do as well. You can speak to the legalize as much as you like, but I will call it what it truly is. The only way one will be "taxed" is if they do not have insurance, either getting it through an employer (although few provide 100% of the costs these days) or through the purchase of the insurance. So we can get into the semantics of the law as if we are lawyers ourselves if you wish, but in the end, it will mean you and I and everyone else will be required to have via purchase health insurance.

You can keep repeating it, but whether or not it is constitutional is absolutely NOT still a matter of debate. The decision has been made by those in the position to make decisions specifically on what is and what is not constitutional! It doesn't matter if the margin of the decision was one person, the matter is still decided. If voting is extremely close on a candidate for public office, do you say it is still up to debate as to who won?

Even if I didn't agree with this ruling, I personally would not pretend that it is still up for debate. As I said prior to the ruling, I would find the outcome "interesting." Now that they have ruled, I still do, and I realize it is the ruling, be it 5-4, 6-3, 7-1 and abstention, ... whatever the vote, the ruling is the ruling and one side was ruled correct while the other was not. It isn't still up for debate. The debate was presented in the court -- our Supreme Court and not just the court of popular opinion -- and it has been ruled on. Like it or not, that is how our system works.

I happen to like our system. You, on the other hand, seem too willing to simply throw the entire system into the toilet because they didn't rule as you thought they should. Likewise, I have no doubt in my mind that had it gone the other way, you and many others around here would be saying "See, it isn't constitutional after all." You would not be claiming that the matter is still up for debate ... and don't pretend you would.

5-4 rulings happen, but they are still the law of the land. Think of the recent District of Columbia v. Heller ruling, in which the court said that cities and states (STATES!) can't prohibit handguns in homes. So I guess this must mean that the ruling has no real merit then, correct? Guess this one must still be up for debate, right?

tbaker 5 years, 11 months ago

Yes. Two large cans of worms were opened. One legal and one political.

It was a HORRIBLE day for the constitution, but on balance the decision was not necessarily all that good for Caesar Obamanus either.

Obama is not able to play the victim and use the evil SCOTUS decision throwing out his signature achievement law as a theme to whine about and blame the boogie man preventing him from helping Americans without healthcare, etc, etc. Now he owns this ugly baby.

The court held States could elect NOT to expand MEDICADE/MEDICARE and not pony-up more money, essentially opting out of Obama Care. At least half the states will do this. Texas already has. This is important precedent, perhaps the best thing that came out of this ruling.

The “penalty” is in fact a tax. It’s official. Obama has spent the last 3+ years arguing it isn’t a tax. Now he has to eat that crow.

Obama promised not to raise taxes on people making less than the evil rich (>$250K) There is no way the ObamaCare tax will allow him to keep this pledge. The WSJ estimates 75% of the funding for ObamaCare will be from taxes on people making less than $150K.

Obama is on the horns of a big campaign dilemma too. He can chose to talk about ObamaCare which the majority of people hate and make it the central issue of the campaign, or he can chose not to talk about ObamaCare and by doing so let the Republicans define the issue for him.

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