ObamaCare: "Tax vs Penalty" is Irrelevant

INTRO: Some have said that Chief Justice Roberts "rewrote" ObamaCare to be a tax, to make it pass muster. No, he really did not do that. What Roberts did was rationalize ObamaCare to be a Tax, and then claimed an all-encompassing authority to tax <virtually anything> by the federal government, which is a patently false claim <and why he may have done this is discussed elsewhere>.

Actually the distinction of it being a "Tax" or a "fine/penalty" should not really matter, as both were deliberately prohibited by the nation's founders. Do we honestly believe that this nation's founders were so naive that they would allow a prohibited "tax" to be redefined as a penalty, or a prohibited penalty to be redefined as a tax, and thereby allow the government engage tyrannous abuse of authority by simply redefining it?

Well, as it turns out, those Founders did not do so. There are prohibitions in the Constitution to both ObamaCare being applied as a "Tax", and a "Penalty in Obamacare.

"A TAX"

As originally written and intended, the Constitution prohibited this sort of Direct Tax or fine to Congress, because both allowed the Congress to enact AGENDAS, you know, such as "tax the rich" and redistribution of wealth. Originally "direct tax" was recognized by our founders to included income from "trades" or "occupations". I have notes from Pennsylvania's ratification of the Constitution which recognizes "trades" and "occupations" in the primary definition of direct tax, with property and things which can be transferred being only in the secondary definition.

The Constitution indicates in Article 1, Section 9, Clause 4 under "Limits to Congress":

• "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

After government attempted to enact various direct taxations, the Supreme Court ruled in 1895, Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429, that even <secondary definition> taxes upon on interest, dividends, and rents imposed by the Income Tax Act of 1894 were indeed direct taxes, and were unconstitutional because they violated the rule that direct taxes must be apportioned.

In 1913 the 16th Amendment changed this, by allowing tax on income "from whatever source derived."

Shortly thereafter (1916) the Court went even further to change "direct" tax, and redefine income, in Stanton v. Baltic Mining Co, in which the Court stated that the 16th Amendment conferred no new power of taxation but simply prevented the courts from taking the power of income taxation possessed by Congress from the beginning out of the category of indirect taxation to which it inherently belonged.

This claim in Stanton was a falsehood and utter corruption. The Court was saying that income from employment was now an indirect "event-tax", or "excise tax" rather than a direct tax to the individual, equivalent to a tax on purchasing clothes, food, or filling our gas tanks, with our labor from our employment being essentially worthless, rather than the equal exchange of labor for payment - something fundamentally different from an excise event-tax. This was a corruption of not only intent of the founders, but also corrupted the very definition of "direct tax" itself which the founders recognized!

However, since ObamCare is not based on income, but rather the absence of a property (insurance), it is undeniably a "direct tax" to the individual, and remains prohibited by the Constitution unless it is apportioned in each state according to the census!

FINE OR PENALTY


The founders, in their wisdom, had another check, an insurance to prevent "agendas", and prevent a "direct tax" from simply being re-defined as a "fine" or "penalty"

The United States Constitution, Article I, Section 9 "Limits on Congress", has the strong prohibition:



A bill of attainder is a judgment levied on an individual or groups intending to pronounce guilt without the benefit of a trial. It is prohibited not only because 1) it is usurpation of the judicial authority by the Legislative branch, but also because 2) it can so readily be abused to corrupt the legislative process with political intent (AGENDAS!).

A prime example of a bill of attainder would be the threats from Congress to legislate taxes on AIG executives receiving bonuses - particularly given the fact that those bonuses were a contractual part of the employment contract predating any government involvement.

Bills of Attainder invariably involve "A Taking", which is the confiscation by mere statute of property (money), or individual rights themselves, and doing so without benefit of any due process. In the case of the mandate for health care insurance, the government is declaring every American guilty if not covered by health care insurance, and then providing a penalty, a 'taking', for this guilt, without any benefit of due process of law, bypassing the judiciary entirely - a bill of attainder.

The "takings" in the case of ObamaCare also involve a abrogation of a full 70% of the Bill of Rights, from the 4th Amendment protection of personal papers and effects from unreasonable search and seizure, unless following due process of an individual court hearing, on up through violation of the 10th Amendment. Furthermore, even more takings may occur by the mere "deeming" of the Secretary of Health & Human Services, again without any sort of due process on an individual basis.

As shown, the Government's difficulty in consistently defining the ObamaCare as either a "tax" or a "penalty" is no coincidence , but rather only an attempt to simultaneously bypass two deliberate prohibitions to Congress in the Constitution. Essentially the government was trying to find the most convenient definition for the given moment so as to push it past the people and the Court, a "high-wire balancing act", and this was clearly evident throughout the court hearing.

In the OP I reference the original understanding of "direct tax" at the time of this nation's founding. Here is that definition from the Pennsylvania Ratification Convention.

PROHIBITION OF A "DIRECT TAX":


THE ADDRESS AND REASONS OF DISSENT OF THE MINORITY of the CONVENTION, Of the State of Pennsylvania, to their Constituents.Signed on p. 3 by Nathaniel Breading and twenty others; followed by the vote of the convention on ratification of the Constitution. Dated: Philadelphia, Dec. 12, 1787.

As you can see, the above references of direct tax includes incomes from trades and occupations.

As described in that definition, ObamaCare also cannot be avoided. We cannot "sell" anything to "save our heads", any more so than we can not be employed, to avoid having our wages taken from us.

We are to be taxed and directed by compulsion, command, and our freedoms violated by mere virtue of being citizens of the country.

Those who already do comply with the un-enumerated power of those numerous directives, are not penalized financially, but will similarly lose their freedoms and have their personal information accessed at will, without any due process.

Thank you Trip, for finally stating the obvious. I'm no attorney, but I've been wondering about just what you've posted here since the idiot Roberts offered up his latest sophistry.

Bravo!

This issue was in fact raised during the proceedings, and the majority decision explicitly recognizes that any tax has to work within the limits of the Direct Taxation Clause.

Precedent holds that only two types of taxes qualify as direct: Property and capitations taxes. This dates back to Hylton v United States in 1796 and was upheld in numerous cases over the years.

So:

"A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific cirumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States." (p41)

Even in the dissent, Scalia referred to the Direct Tax Clause as "famously unclear," and did not articulate an argument against that interpretation -- he only said the issue should be examined more thoroughly.


Obamacare has been found to be Constitutional. That part is over and done with. If you want to get rid of it, you'll have to repeal it.

And that is, without question, an uphill battle. Opposition has dropped from a high of 46% to around 33%; individual provisions are very popular; governors are accepting its expansion of Medicaid; Obama will be president when the law goes into full force in 2014. So... Good luck with that.

There's also the patent absurdity of treating Obamacare as "tyrannical." Britain, Japan, France, Sweden, Canada and Australia (among others) all have true universal health care, and are not "tyrannies." They live free, they die free, and they have the right and ability to cancel those services at any time -- as do American citizens, who can repeal Obamacare.

Visbek said:

This issue was in fact raised during the proceedings, and the majority decision explicitly recognizes that any tax has to work within the limits of the Direct Taxation Clause.

Precedent holds that only two types of taxes qualify as direct: Property and capitations taxes. This dates back to Hylton v United States in 1796 and was upheld in numerous cases over the years.

So:

"A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific cirumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States." (p41)

Even in the dissent, Scalia referred to the Direct Tax Clause as "famously unclear," and did not articulate an argument against that interpretation -- he only said the issue should be examined more thoroughly.


Obamacare has been found to be Constitutional. That part is over and done with. If you want to get rid of it, you'll have to repeal it.

And that is, without question, an uphill battle. Opposition has dropped from a high of 46% to around 33%; individual provisions are very popular; governors are accepting its expansion of Medicaid; Obama will be president when the law goes into full force in 2014. So... Good luck with that.

There's also the patent absurdity of treating Obamacare as "tyrannical." Britain, Japan, France, Sweden, Canada and Australia (among others) all have true universal health care, and are not "tyrannies." They live free, they die free, and they have the right and ability to cancel those services at any time -- as do American citizens, who can repeal Obamacare.

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Obamacare is NOT universal health care, not by a long shot. Obamacare is a law that generates several million more new customers for the insurance industry, that's all. And ensures that dollar for dollar, american healthcare is the least efficient in the entire world. A boon for private industry.

Henry David said:

Obamacare is NOT universal health care, not by a long shot. Obamacare is a law that generates several million more new customers for the insurance industry, that's all. And ensures that dollar for dollar, american healthcare is the least efficient in the entire world. A boon for private industry.

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Yes, I'm well aware that it's not universal health care.

The point is that even a more thorough regulation of medical care still does not qualify as "tyranny," especially since it can be repealed at any time.

Visbek said:

There's also the patent absurdity of treating Obamacare as "tyrannical." Britain, Japan, France, Sweden, Canada and Australia (among others) all have true universal health care, and are not "tyrannies." They live free, they die free, and they have the right and ability to cancel those services at any time -- as do American citizens, who can repeal Obamacare.

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Visbek said:

Yes, I'm well aware that it's not universal health care.

The point is that even a more thorough regulation of medical care still does not qualify as "tyranny," especially since it can be repealed at any time.

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What a pile of banal sophistry!

First off, Tyranny is not determined by what other countries do, all of which you note are monarchies and now socialist havens, but rather determined by what this country prohibits. The Constitution was written to limit government to prohibit tyranny. There is no authority for the government to engage in health care regulation, much less compel its purchase while dictating what one might obtain under that purchase.

Furthermore this is not merely "regulation" of medical care, ie, dictating of standards, but the confiscation of monies and confiscation of rights that are so innate to the individual that they involve the individual's ownership of self! The government has no such autority, not even under the power to tax.

While this is not Universal Health Care, or Sinple Payer, as the left so fervently wants, that would be even more of a violation of the constitution and rights, and only serve to mask the violation by having all decisions and all payments lost in government bureaucracy, and would not be the Nirvana the left believes it to be.

Visbek said:

Obamacare has been found to be Constitutional. That part is over and done with. If you want to get rid of it, you'll have to repeal it.

And that is, without question, an uphill battle. Opposition has dropped from a high of 46% to around 33%; individual provisions are very popular; governors are accepting its expansion of Medicaid; Obama will be president when the law goes into full force in 2014. So... Good luck with that.

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No, that part is not over and done with. It may have been ruled by a court to be constitutional, but it is not its final resolve, much less its absolute determinatio to be such. That screwy rationalization referenced as a verdict does not establish de facto constitutonality. It still remains inherently unconstitutional and an assault upon the Constitution itself. Those 5 justices, <originally only 4 justices as the decision was originally to entirely invalidate ObamaCare> had no legitimate authority to fundamentally, and profoundly change the relationship between the citizen and government, as they did. Not even an amendment to the Constitution is sufficient means to do that. Each and every one of those justices should be turned into wind chimes, along with those who voted for this obsceneity to begin with. Roberts, Ginsberg, Breyer, Sotomayor, and Kagan have violated not just their oath, but the Constitution itself.


When this illegitimate law goes into effect in any force, the people will be responding with their own force, as this is undeniably tyrannous government taking over ownership of something it cannot possibly have the legitimate authority regulate in this country. At this point we have the government making life and death decisions regarding individuals, and determining the relative value of each individual's lives, none of which the government is empowered to do. Right now only the taxes are going into effect, without any of the onerous compulsions and denials put upon the individual, and even from the taxes alone people are increasing their rejection to ObamaCare and are up in arms. But also the other things going into effect is the further killing of jobs, the the killing of what little economic growth there might have been, all in the midst of the worst economic depression since the Depression!

This is not just people's "bad political decisions", as Roberts referred to it in his SECOND opinion on ObamaCare <he actually wrote 70% of what became the minority dissent too> but it is government doing entirely what government has no authority to do, which is essentially what Roberts himself wrote in that dissent! Tyranny!

Furthermore, this is not a democracy, and no amount of opinioN <not even from the COurt> can possibly validate what is inherently unconstitutional, and null and void at face value. While those opinions more recently become largely more positive, this is based on only hearing of coverage of certain things, when nothing is yet implemented and does not involve recognizing the denials. Those opinions do not register the effects. In other words, even that populist appeal is going to plummet again as well!

Visbek said:

This issue was in fact raised during the proceedings, and the majority decision explicitly recognizes that any tax has to work within the limits of the Direct Taxation Clause.

Precedent holds that only two types of taxes qualify as direct: Property and capitations taxes. This dates back to Hylton v United States in 1796 and was upheld in numerous cases over the years.

So:

"A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific cirumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States." (p41)

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This is corrupt rationalization from Roberts, in conflict with his original opinion as seen in the first 70% of the minority Dissent.

First, "Property and capitation" are not the only two types of direct tax. The Hylton case was concerning a tax on carriages, with carriages being argued in that case to be the equivalent of property, like land, which the government rejected, and relegated to being an excise tax in the decision. However, as shown by the discussion of Direct tax, which I provide in #2, the consideration of such "property" to be direct taxation, is only the secondary recognition of what constitutes direct taxation. Direct taxation is quite literally applied directly "to the individual". Capitation is only one form of direct taxation.

Furthermore, in conflict with Roberts' implication regarding “without regard to property, profession, or any other circumstance”, the fact that such a capitation tax is only payed by individuals without insurance, does not remove the consideration of being capitation or direct tax, as those who do not pay that tax are already paying it by compliance.

Direct involves "to the person", and the reason it was prohibited is that allowing such taxation enables the government to exercise agendas against individuals or groups, something that Leftists want to enable, yet is in gross conflict with the founder's intent.

Visbek said:

Even in the dissent, Scalia referred to the Direct Tax Clause as "famously unclear," and did not articulate an argument against that interpretation -- he only said the issue should be examined more thoroughly.

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The entire dissenting opinion involves rejection of that interpretation! And the only reason that the Direct Tax Clause is "famously unclear" is that what constitutes a Direct Tax has been deliberately muddied by the courts themselves, which have even deliberately corrupted the primary definition's recognition of income tax into being an excise tax, as per Stanton vs Baltic Mining Co, in conflict with the clear recognition at this nation's founding!

Visbek said:

Yes, I'm well aware that it's not universal health care.

The point is that even a more thorough regulation of medical care still does not qualify as "tyranny,"

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It's not a regulation of medical care. It's a regulation of us. The people.

Read it again:

Henry David said:

Obamacare is NOT universal health care, not by a long shot. Obamacare is a law that generates several million more new customers for the insurance industry, that's all. And ensures that dollar for dollar, american healthcare is the least efficient in the entire world. A boon for private industry.

Click to expand...

Visbek said:

especially since it can be repealed at any time.

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By this argument, no law can be tyrannical because laws can be changed. That doesn't work.

Trip said:

First off, Tyranny is not determined by what other countries do...

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I never said it was. I'm pointing out that despite adopting policies you hate, their citizens are undoubtedly and unquestionably free.

Tyranny is, as you ought to know, "cruel and oppressive government." Government regulation of health care, or even a tax on those who don't have it -- even if those things are unconstitutional -- does not even remotely qualify.

And if we really were living in a tyrannical state? You'd be in jail right now for bad-mouthing the powers that be. Thankfully, you are a citizen who is entirely free and at liberty to express your political views, including those that are highly critical of the government. In fact, the louder and more vociferously you (peacefully) protest, the more you prove you are not living in a tyranny. Funny how that works.

There is no authority for the government to engage in health care regulation....

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Apparently there is -- that and much more.

No, that part is not over and done with.

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Yeah, it's done. You can screech all you want, but judicial review is an accepted structure of the US government. Including by strict originalists.

Again: If you want to stop Obamacare, you basically won't get anywhere in the courts. All you have to do is get a federal law passed. Case closed.

When this illegitimate law goes into effect in any force, the people will be responding with their own force....

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No, they won't.

Again: Disapproval of the law has dropped to around 33%. Governors are implementing the Medicare portions, and many are wising up to wanting control over the exchanges. Support for individual provisions is very high. Ratepayers are receiving check from insurers who spent too much on overhead. There are no "death panels." It will not cause any economic setbacks.

No one will be firing bullets over this.

Trip said:

This is corrupt rationalization from Roberts...

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So says the man who rejects the 14th Amendment as invalid. :mrgreen:

First, "Property and capitation" are not the only two types of direct tax.

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Kinda looks like precedent doesn't agree with you -- or, at least, the clause itself is nowhere near as clear as you proclaim.

The entire dissenting opinion involves rejection of that interpretation!

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Uh, no, it doesn't.

The first half discusses how the Commerce Clause cannot be utilized to support the Individual Mandate. In fact, the dissent says they would shoot it down on that basis alone.

Section II discusses taxes: It explores the idea that the Individual Mandate is both a penalty and a tax; asserts these are mutually exclusive; and further suggests that this concept rewrites the law. Section III claims Obamacare violates the Anti-Injunction Act, looks into the validity of the Medicaid expansion, and so forth.

The ONLY thing the dissent says on the Direct Tax Clause issue is near the end of Section II:


Yep, that's pretty much all the dissent says on the Direct Tax Clause issue. One paragraph out of 60+ pages of dissent. It isn't even an argument; all it says is "no one spent any time on this one."

Visbek said:

I never said it was. I'm pointing out that despite adopting policies you hate, their citizens are undoubtedly and unquestionably free.

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No, they are undeniably not free. When a state government dictates what one must do, and usurps the very ownership of one's body, and confiscates peoples money allegedly for the dictated care of that body, along with denial of care when it sees fit, that is no sort of "freedom".

Visbek said:

Tyranny is, as you ought to know, "cruel and oppressive government." Government regulation of health care, or even a tax on those who don't have it -- even if those things are unconstitutional -- does not even remotely qualify.

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No tyranny is not just "cruel and oppressive government", and that applies too subjective evaluations which would welcome tyrannous government. Fortunately we do not have to look to only a vague definition that you provide, and the founders recognized that the government exceeding its boundaries as established in the Constitution is not only illegitimate, but inherently tyrannous government -- in *THIS* country.

Visbek said:

And if we really were living in a tyrannical state? You'd be in jail right now for bad-mouthing the powers that be. Thankfully, you are a citizen who is entirely free and at liberty to express your political views, including those that are highly critical of the government. In fact, the louder and more vociferously you (peacefully) protest, the more you prove you are not living in a tyranny. Funny how that works.

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And that's another screwball, vague means to recognize tyrannous government -- not being in jail at any given moment. So as long as one person is not in jail, its not tyrannous, or just so long as oneself is not in jail, then it is not tyrannous?

My being able to express my views, and even my ability to cast a vote, has nothing to do with the fact the government is exceeding its legitimate authority, or not. Your personal definition is quite insipid.

The general definition of tyranny is "arbitrary or unrestrained exercise of power; a despotic abuse of authority".

Our government has no authority to take over the health care and dictate its standards, much less compel people to purchase health care insurance, confiscate a whole range of monies and freedoms allegedly for that health care canard, and declare the relative worth of 'free' citizens, dictatating who might receive care, and who not, who might live, and who die.

Those standards are all "arbitary" and the government's actions are entirely "unrestrained", unchecked, unchallengeable, and subjective.

It is text book tyranny, particularly in *THIS* country where we are entitled to a form of government in which it is restrained, and our rights are guaranted, not confiscated in the name of a fabricated "right" to health care.

Visbek said:

Yeah, it's done. You can screech all you want, but judicial review is an accepted structure of the US government. Including by strict originalists.

Again: If you want to stop Obamacare, you basically won't get anywhere in the courts. All you have to do is get a federal law passed. Case closed.

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No, its not done. Judicial review was never meant to be the final word on constitutionality, and it would be insane for the founders to set up such a system of one hand of government validating what the other hand does, particularly since those founders sought to protect freedoms from just such a government.

There are other constitutional remedies such as citizen grand juries and state nullification. And then there is the final remedy, of people taking up arms, which also has "precedent". And if you think "no one" will do so, you should recognize that all the arms sales lately have not occurred because of sudden upsurge in enthusiasm for deer hunting.

Neomalthusian said:

It's not a regulation of medical care. It's a regulation of us. The people.

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OK then

Your state government requires you to have some type of auto insurance if you're going to own a car. Even if the car sits in your garage 24/7, you're supposed to have insurance on it. It's not a regulation of the auto industry. It's a regulation of us. The people.

Is required auto insurance an instance of tyranny?

By this argument, no law can be tyrannical because laws can be changed. That doesn't work.

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Works for me. Unless you're going to say that "taxation with representation" is an example of tyranny. :mrgreen:

It's "tyranny" when the act is cruel and oppressive. A tax may suck, but it's hardly "cruel." Buying health care may suck, but it's not "oppressive." No one is forcing you to see a doctor, no one is forcing you to receive specific treatments, no one is forcing you to receive types of medical care that violates your religious beliefs, and there definitely aren't any "death panels" which will categorically deny care to someone who is terminally ill.

And yes, you are entirely within your rights and abilities to protest against the law, to speak out against it, and to lobby for repeal. You had your chance to elect a President, Vice President and legislators who explicitly pledged to repeal the ACA; you lost. You had the opportunity to challenge its validity and constitutionality in the courts; you lost. You've had years to convince the public that it's a bad law. You're losing, big time.

This isn't "tyranny." This is a complaint by people who can't handle the fact that living in a constitutional republic means that every now and then, your side loses.


I do agree it's a big boon for the insurers, but mostly in the sense that they get to stay in business, rather than get trashed by their blatant inability to compete and win against a government-sponsored option. They can no longer deny coverage to those pesky expensive people with pre-existing conditions (which, nowadays, can include something as innocuous as migraines); if they spend too much on overhead, they have to send out checks to the insured. We'll see in a few years if they really are making out like bandits.

Trip said:

No, they are undeniably not free. When a state government dictates what one must do, and usurps the very ownership of one's body, and confiscates peoples money allegedly for the dictated care of that body, along with denial of care when it sees fit, that is no sort of "freedom".

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Thankfully, the citizens of those nations do not subscribe to your extremely narrow definition of "free." If you haven't done so, travel abroad sometime. It's quite evident that those citizens are not being abused by despots.

I mean, really. You do understand that although North and South Korea both have universal health care, one is a brutal dictatorship and the other is a free constitutional republic, yes? That there are obvious and qualitative differences between the freedoms available to the citizens of these two nations?

The general definition of tyranny is "arbitrary or unrestrained exercise of power; a despotic abuse of authority".

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Yep, Obamacare doesn't fit that one either.

It's not arbitrary; it's bounded by the Constitution, which (as noted) cannot compel citizens to purchase a service via the Commerce Clause. Obama did not declare it to be law by fiat; it was validly modified and passed via legislation and given a pretty thorough judicial review. If Obama was a "despot," we'd have a very different law -- and would not be looking forward to the 2016 election.

And again, you can get rid of it any time you can muster the votes. Good luck with that, by the way.

No, its not done. Judicial review was never meant to be the final word on constitutionality, and it would be insane for the founders to set up such a system of one hand of government validating what the other hand does, particularly since those founders sought to protect freedoms from just such a government.

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Fortunately, they were quite sane, and there are several checks and balances on the SCOTUS. Including the ability to overturn a court's decision via amendments.

In addition, removing the ACA is actually quite easy: Just repeal it. The only thing the SCOTUS did was say "it falls within the powers of the federal government," and that's it. There is no reason whatsoever why the law can't be repealed, nor did the SCOTUS suggest any such thing.

There are other constitutional remedies such as citizen grand juries and state nullification.

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Citizen grand juries and state nullification have absolutely no legal standing whatsoever.

Visbek said:

So says the man who rejects the 14th Amendment as invalid. :mrgreen:

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The 14th Amendment was only ratified by compulsion upon the southern states, which is nowhere any sort of constitutional method. The 14th Amendment is entirely and inherently invalid... but that has no direct bearing on this discussion.

Visbek said:

Kinda looks like precedent doesn't agree with you -- or, at least, the clause itself is nowhere near as clear as you proclaim.

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Strangly, a strict following of that precedent does agree with me, which is why even that dissenting opinion indicated the direct tax clause being unclear.

Visbek said:

Uh, no, it doesn't.

The first half discusses how the Commerce Clause cannot be utilized to support the Individual Mandate. In fact, the dissent says they would shoot it down on that basis alone.

Section II discusses taxes: It explores the idea that the Individual Mandate is both a penalty and a tax; asserts these are mutually exclusive; and further suggests that this concept rewrites the law. Section III claims Obamacare violates the Anti-Injunction Act, looks into the validity of the Medicaid expansion, and so forth.

The ONLY thing the dissent says on the Direct Tax Clause issue is near the end of Section II:

"Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and- a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression."(p25-26)
​

Yep, that's pretty much all the dissent says on the Direct Tax Clause issue. One paragraph out of 60+ pages of dissent. It isn't even an argument; all it says is "no one spent any time on this one."

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The entire dissent, which Roberts himself wrote the majority of <yes, Roberts wrote 70% of the dissent too> involves the rejection of ObamaCare in its entirety, inclusive of the "tax" argument.

Visbek said:

Thankfully, the citizens of those nations do not subscribe to your extremely narrow definition of "free." If you haven't done so, travel abroad sometime. It's quite evident that those citizens are not being abused by despots.

I mean, really. You do understand that although North and South Korea both have universal health care, one is a brutal dictatorship and the other is a free constitutional republic, yes? That there are obvious and qualitative differences between the freedoms available to the citizens of these two nations?



Yep, Obamacare doesn't fit that one either.

It's not arbitrary; it's bounded by the Constitution, which (as noted) cannot compel citizens to purchase a service via the Commerce Clause. Obama did not declare it to be law by fiat; it was validly modified and passed via legislation and given a pretty thorough judicial review. If Obama was a "despot," we'd have a very different law -- and would not be looking forward to the 2016 election.

And again, you can get rid of it any time you can muster the votes. Good luck with that, by the way.



Fortunately, they were quite sane, and there are several checks and balances on the SCOTUS. Including the ability to overturn a court's decision via amendments.

In addition, removing the ACA is actually quite easy: Just repeal it. The only thing the SCOTUS did was say "it falls within the powers of the federal government," and that's it. There is no reason whatsoever why the law can't be repealed, nor did the SCOTUS suggest any such thing.



Citizen grand juries and state nullification have absolutely no legal standing whatsoever.

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The funny thing about the Penalty/tax part of the AHC act is that is really only asking that everyone pay for a PART of the services they already have, emergency room care, insurance or not. The joke is that those that are the most opposed are also the ones that claim to want everyone to pay their own way. Go figure.

Visbek said:

Thankfully, the citizens of those nations do not subscribe to your extremely narrow definition of "free." If you haven't done so, travel abroad sometime. It's quite evident that those citizens are not being abused by despots.

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A "narrow" definition of free? The most broad definition of "free" and freedom involves no sorts of dictates upon your own action and leaves one's life open to their own choices. That is what this country guarantees. The lesser freedoms, where some think they are "free" involving handouts <of other people's money> from the state, is only enslavement.

Visbek said:

I mean, really. You do understand that although North and South Korea both have universal health care, one is a brutal dictatorship and the other is a free constitutional republic, yes? That there are obvious and qualitative differences between the freedoms available to the citizens of these two nations?

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Fortunately these United States are not either North Korea or South Korea. We have a unique system in all the world where the government does not get to dictate our lives. "You do understand" that South Korea does not have any guaranteed individual freedoms despite being a "Constitutional Republic", as we do, right? South Korea has also had a series of military dictatorships despite being referred to as a "Constitutional Republic"; we have not.

Visbek said:

Yep, Obamacare doesn't fit that one either.

It's not arbitrary; it's bounded by the Constitution, which (as noted) cannot compel citizens to purchase a service via the Commerce Clause. Obama did not declare it to be law by fiat; it was validly modified and passed via legislation and given a pretty thorough judicial review. If Obama was a "despot," we'd have a very different law -- and would not be looking forward to the 2016 election.

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Obama's cronies made a law only obtained by fraud, subterfuge, lies, bribery, coercion, and disguise of what was actually in the bill before people voted for it. No one had even read the entire bill before it was voted on! What judicial review it had was by a Chief Justice who was so prepared to nullify the entirety of it, that he wrote 70% of what became the minority opinion, flipped his vote at the last minute under extremely questionable circumstances, and then had at least one person who should have had to recuse herself from being involved in representing that legislation for Obama. There's nothing valid about ObamaCare at all, and Obama himself is not even a legitimate Oval Occupant!

This ignores the fact that ObamaCare is entirely in conflict with the Constitution, so much so that it nullifies 70% of the Bill of Rights, and violates the prohibitions on direct taxation and bills of attainder. By using the Constitution itself as the sole litmus test, ObamaCare is and should be null at face value because nothing about the legislation, its vote, or its implementation is "pursuant to" that Constitution. Again, not even an amendment to the consitution would be sufficient to fundamentally change the relationship between citizen and government.

Visbek said:

And again, you can get rid of it any time you can muster the votes. Good luck with that, by the way.

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We are not a democracy, my freedoms and rights are not subject to a vote, and when the time comes, "good luck" surviving the turmoil that will result.

Visbek said:

In addition, removing the ACA is actually quite easy: Just repeal it. The only thing the SCOTUS did was say "it falls within the powers of the federal government," and that's it. There is no reason whatsoever why the law can't be repealed, nor did the SCOTUS suggest any such thing.

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There is no reason why that legislation needs to be repealed: it is null and void at face, and it is nowhere within the powers of the federal government.

Visbek said:

Citizen grand juries and state nullification have absolutely no legal standing whatsoever.

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Curiously, that is what the federal government would have us believe, but even their legal arguments claiming such are not upheld by fact. Both have full legal standing, and historic intent behind them.

iguanaman said:

The funny thing about the Penalty/tax part of the AHC act is that is really only asking that everyone pay for a PART of the services they already have, emergency room care, insurance or not. The joke is that those that are the most opposed are also the ones that claim to want everyone to pay their own way. Go figure.

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I know people who already pay their own way and have no health insurance, but set money aside for that. They negotiate with doctors themselves, and do not pay the jacked up prices that result because of the insurance company monopolies and how they have been jacking up those who do not have health insurance.

If you want to talk about "funny things", let's do so honestly.

THe health care bill did not fix anything. It did not fix the problems caused by the insurance companies, it did not bring down the cost of the insurance, it did not bring down the cost of the health care.

The end result will be higher cost insurance, more overhead, taxes on things like wheelchairs and crutches, taxes on whole variety of subjective things in society, and health care will be less available, rationed and even denied by an entity <the government> able to choose even to deny you medical care by bureaucratic process, and an entity for which there is no legitimate appeal or alternative!

It is anything but a reasonable plan.

Visbek said:

OK then

Your state government requires you to have some type of auto insurance if you're going to own a car.

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No, only IF I intend to drive the car on state-maintained roadways.

Even if the car sits in your garage 24/7, you're supposed to have insurance on it.

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That's not true.

It's not a regulation of the auto industry. It's a regulation of us. The people.

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It's a regulation of the manner in which we use state-funded infrastructure.

Is required auto insurance an instance of tyranny?

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No, for reasons noted above which have been repeated countlessly throughout this debate.

It's "tyranny" when the act is cruel and oppressive.

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The federal requirement to continue purchasing an already astronomically priced service from a private company is cruel and oppressive. The entire basis of reforming health care is that health care (and subsequently its insurance) is getting so outrageously expensive that it is pretty much cruel and oppressive.

A tax may suck, but it's hardly "cruel." Buying health care may suck, but it's not "oppressive."

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Use whatever adjective you like, but the amount we are paying for our health care is a critical problem. Duh. And now we're federally mandated to keep feeding the problem.

PPACA is the worst thing we could have done. Much worse than doing NOTHING, even. That says a lot.

Alexander Hamiliton tells us in Federalist #78 that no legislation contrary to the Constitution can be valid:



This is supported by the Supremacy Clause, which indicates that all legislation, and even treaties must be "pursuant to" the U.S. Constitution.

In the case of ObamaCare, we have the federal government and Supreme Court acting "by virtue of powers", or under the color of law, and yet doing not only what their powers do not authorize, but also what those powers forbid!

Trip said:

INTRO:
The Constitution indicates in Article 1, Section 9, Clause 4 under "Limits to Congress":

• "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

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Actually, your constitutional quote supports Roberts' decision.

Muddy Creek said:

Actually, your constitutional quote supports Roberts' decision.

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How do you imagine that to be the case?

This is what Roberts wrote in the majority opinion:



Here Roberts fudges a great deal. A capitation is not defined by "every person paying it". If such were true, then we could have per head fee for voting, but by Roberts false logic it would not be a capitation, as those who don't vote would not be paying it. Just as with the prohibited capitation for voting, the payment in ObamaCare is "triggered by specific circumstances".

This is a deliberate misrepresentation on Roberts' part, attempting to make it seem as if the penalty is no longer applied to and targeting the individual, when it undeniably is.

Contrary to Roberts implication above, the consideration of "other circumstances" is not integral to it being a capitation, and certainly does not exclude it from being a direct tax, or else the federal government would not have needed an amendment to tax income.

Also, obviously, direct taxes are not limited to "capitations", but Roberts is attacking "parts of the whole" of what constitute a "direct tax", i.e capitations and land ownership, to falsely try and invalidate the whole, it being a direct tax!

As I showed in my second post of this thread, the primary definition of "direct tax" is that it is applied to the person, on their "head", on a case by case basis. The reason this is recognized as tyrannous, and denied our government, is direct taxation can be used to target individuals, and to exercise a whole array of agendas, just as it is doing now. It should be recognized that the reference to ownership of land or personal property, seen even in that definition from the Pennsylvania ratification convention, is only the secondary definition of direct tax, and one not even uniformly recognized in this country.

The federal government is not just prohibited a "capitation" tax, but any other direct tax as well. The only direct tax that is now allowed, is a direct tax on income, as a result of the 16th Amendment. However even as recognized by Roberts, the penalty paid under ObamaCare is not based on income, but rather is based on a required performance <having health insurance>, with people who are <subjectively> judged to not be able to afford that insurance being granted immunity. It's still a penalty applied directly to the person, their 'head', and is clearly not an excise "event" tax, but rather directed at a "non-event".

This is the level of outright, unabashed perfidy and dishonesty our Court has sunk to, openly engaging it, with Roberts doing so despite the fact he authored 70% of what became the minority opinion, intending to reject ObamaCare entirely as unconstitutional. His argument for supporting ObamaCare, based on an all-pervasive taxing authority, is just not the fact of that authority, and is undeniably based on specious arguments.


In truth, those who do not have health insurance are being judged guilty, with their penalty also provided, usurping judicial authority, and denying any sort of individual due process. It is blatantly unconstitutional, with the entire endeavor being outside the government's enumerated powers.

Trip said:

Alexander Hamiliton tells us in Federalist #78 that no legislation contrary to the Constitution can be valid:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.​

This is supported by the Supremacy Clause, which indicates that all legislation, and even treaties must be "pursuant to" the U.S. Constitution.

In the case of ObamaCare, we have the federal government and Supreme Court acting "by virtue of powers", or under the color of law, and yet doing not only what their powers do not authorize, but also what those powers forbid!

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Yes, and consider this:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

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Those who claim that 9 supreme court justices are the sole caretakers of the constitution are just simply wrong. Every legislator, judge, and executive officer, from the president, down to the town dogcatcher MUST uphold the constitution.

As Justice Marshall explained in Marbury v. Madison: "Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument."

The thing most people miss is that by scotus declaring it a tax they made the bill unconstitutional as all bills for raising revenue must begin in the house and Obamacare started in the senate.

Trip said:

A "narrow" definition of free? The most broad definition of "free" and freedom involves no sorts of dictates upon your own action and leaves one's life open to their own choices. That is what this country guarantees.

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If that was the case, then it would be impossible to outlaw libel, slander, theft, murder and so forth. Americans are not granted such radical freedoms.

Fortunately these United States are not either North Korea or South Korea.

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Don't dodge the question.

Do you, or do you not, recognize that there are qualitative differences in the degree of liberty exercised by the citizens of North Korea and South Korea?

Obama's cronies made a law only obtained by fraud, subterfuge, lies, bribery, coercion, and disguise of what was actually in the bill....

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It was passed via the same mechanisms as every other law. The "public print" was made available on December 4, 2009, a full 8 months before passage. You may not like the results of the judicial review, but that does not invalidate the process.

And while it's unusual that Roberts participated in the dissent, that doesn't invalidate the results either. It shows how he basically changed his mind part of the way through the process.

We are not a democracy, my freedoms and rights are not subject to a vote, and when the time comes, "good luck" surviving the turmoil that will result.

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We are in a constitutional, representative democracy which is also a republic.

And yes, the government has the ability to curtail certain freedoms. You cannot slander or libel; you cannot enslave another human; you cannot murder another person; you can own a handgun, but not a RPG or a tank.

And in case you haven't figured it out: You don't scare me with your claims of some massive uprising.

There is no reason why that legislation needs to be repealed: it is null and void at face, and it is nowhere within the powers of the federal government.

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And it's going into full effect in 2014. No amount of proclamations that it is "null and void" will change the fact that if you exceed the income requirements and don't have health insurance, you will pay a tax.