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This topic is not about the American Invasion of Iraq. Stop. - Page 23 |
On June 30 2012 03:10 BluePanther wrote:Show nested quote +On June 30 2012 03:08 farvacola wrote:On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike. You are completely missing the point. This opinion is way off the beaten track for legal reasoning regarding similar laws. Sure, they justified it with other rulings, but it's clear that everyone thinks this should have been a commerce clause issue because of HOW the law functions. Virelli was berated iirc for even presenting the argument that it should fall under the taxing power.
What was Virelli berated with? As in, what were the comments in terms of considering the individual mandate as a tax instead of a commerce clause application? I'm simply trying to figure out why this is such a stretch for so many.
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On June 30 2012 02:59 xDaunt wrote:Show nested quote +On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one.
It certainly should have been taken seriously by the commentators. Anyone that bothered to listen to the audio of the oral arguments should have known to take it seriously.
JUSTICE SCALIA: You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause blah, blah, blah, it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said every body who doesn't buy health insurance at a certain age will be taxed so much money, right?
GENERAL VERRILLI: It -- it used its powers together to solve the problem of the market not -
JUSTICE SCALIA: Yes, but you didn't need that.
GENERAL VERRILLI -- providing for the -
JUSTICE SCALIA: You didn't need that. If it's a tax, it's only -- raising money is enough.
GENERAL VERRILLI: It's justifiable under its tax power.
JUSTICE SCALIA: Extraordinary.
Source: Transcript from SCOTUS arguments day 2
Edit: Audio on 'if it's a tax' starts around the 49 min mark.
http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday
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On June 30 2012 03:08 farvacola wrote:Show nested quote +On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike.
Yes, you can say that there was a collective failure of legal minds across the country (including me) to anticipate that the Court would uphold law as a tax. In fairness to those legal minds, the law did not say it was a tax, the drafters of the law did not say it was tax, and the administration said it was not a tax up until the case got to the Court. This is why I said that the Court did contortions (or however I put it) to call the law a tax.
As for me, I don't pretend to not have preferred outcomes in these things. However, I have objectively explained why I thought certain things would happen with regards to this decision. For example, I explained many times in this thread why the law would not be upheld under the commerce clause and how the Court's "New Federalism" jurisprudence strongly indicated this result (coincidentally, one of the major failings of legal commentators was to discuss this New Federalism jurisprudence when predicting the outcome of the case, which I previously have pointed out).
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On June 30 2012 02:59 xDaunt wrote:Show nested quote +On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one.
Wow, the irony of you calling someone a partisan hack, when you've ignored all the evidence and facts on the economic and health care effects of Obamacare and consequently got all of that wrong. You've also, rather than argue with or present your own evidence, just ignored and dismissed statistics on the state of the economy in the US election thread. In fact, I've personally never seen you argue from facts, statistics and cited sources. You're perhaps the most partisan and anti-evidence person I've argued with on this forum.
But I'll stop talking about economics now, and turn to the the legal issues.
A poll of constitutional law scholars found that 19 out of 21 said that Obamacare was constitutional, but that most thought that the Supreme Court would be partisan and overturn it. Thus, the argument about the constitutionality of the law under the Commerce Clause was in line with precedent. And given that the court did rule against that argument, on a completely partisan 5-4 vote, I'd say that prediction was pretty much true.
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On June 30 2012 01:54 xDaunt wrote:Show nested quote +On June 30 2012 01:50 Kukaracha wrote:On June 30 2012 01:48 Malarkey817 wrote:On June 30 2012 01:30 rogzardo wrote:On June 30 2012 01:18 Malarkey817 wrote:On June 30 2012 00:54 rogzardo wrote:
We're all going to be taxed very slightly in order to give health care to tens of millions of Americans who can't afford it. If you can't be bothered to lose 1-2% of your income in order to benefit, greatly, millions of your fellow Americans, then you are an immoral person. You can't praise someone's morality for paying a tax, that's actually laughable. Am I a moral person because I pay the local mafia "protection money"? (of course taxes are legitimized, but does that make them moral?) Why not extend the healthcare benefits to our neighboring countries as well? I'm sure there are also a lot of suffering people in Mexico who cannot afford healthcare. Isn't it morally objectionable to ignore these people just because they were born south of the border? Yes, it is just as immoral to ignore your suffering countrymen as those living under another government, but the MORAL solution is NOT to pay for it with money taken under threat of violence from the government. The only moral solution is to help as many people as you can with voluntarily given money. I understand that you want to help everyone and fix the problem once and for all, but all this will do is help a portion of the people and create more problems. Helping 100 million+ Americans is a good place to start. You think its a bad idea to help a portion of low-income people, just because others will still be left without aid? Great plan. By that logic, we have no moral obligation to help anybody, ever! As you say, this will help a portion of the people. A large portion. The 'problems' created are taxing insurance companies, pharmacuetical companies, and individuals who make more tan 200k/year. I'm ok with that. I think you may have missed the part I emphasized with capital letters, so I'll just repeat it here. I think it's a great idea(moral) to help anyone and everyone who is in need of care. I think it's a bad idea(immoral) to coerce or actually force other people to pay for that care unwillingly. This leaves us with voluntary aid as our only moral solution. Is it bad to force people not to kill other people? Should that decision be left at one's discretion? I know that this concept is foreign to some of you non-Americans who don't have a federalist system like we have in the US, but it's not the role of the federal government to exercise a general police power (ie the power to do things like forbidding the killing of others). That job is left to state governments.
Did the federal state not intervene in forcing equality between blacks and whites, for example?
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On June 30 2012 03:17 xDaunt wrote:Show nested quote +On June 30 2012 03:08 farvacola wrote:On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike. Yes, you can say that there was a collective failure of legal minds across the country (including me) to anticipate that the Court would uphold law as a tax. In fairness to those legal minds, the law did not say it was a tax, the drafters of the law did not say it was tax, and the administration said it was not a tax up until the case got to the Court. This is why I said that the Court did contortions (or however I put it) to call the law a tax. As for me, I don't pretend to not have preferred outcomes in these things. However, I have objectively explained why I thought certain things would happen with regards to this decision. For example, I explained many times in this thread why the law would not be upheld under the commerce clause and how the Court's "New Federalism" jurisprudence strongly indicated this result (coincidentally, one of the major failings of legal commentators was to discuss this New Federalism jurisprudence when predicting the outcome of the case, which I previously have pointed out).
Thanks. Out of curiosity, how commonplace is the disparity between authorial intent and court argumentation when it comes to couching certain aspect of the act/law in question? I ask because it was clear that Virelli and others were aware of the possibility that calling it a tax might be legally prudent. And furthermore, how often has Scotus justified a ruling using unexpected rationale?
Edit: ^Thanks parallel, that poll is very intriguing given what has been previously asserted in this thread
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On June 30 2012 03:22 farvacola wrote:Show nested quote +On June 30 2012 03:17 xDaunt wrote:On June 30 2012 03:08 farvacola wrote:On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike. Yes, you can say that there was a collective failure of legal minds across the country (including me) to anticipate that the Court would uphold law as a tax. In fairness to those legal minds, the law did not say it was a tax, the drafters of the law did not say it was tax, and the administration said it was not a tax up until the case got to the Court. This is why I said that the Court did contortions (or however I put it) to call the law a tax. As for me, I don't pretend to not have preferred outcomes in these things. However, I have objectively explained why I thought certain things would happen with regards to this decision. For example, I explained many times in this thread why the law would not be upheld under the commerce clause and how the Court's "New Federalism" jurisprudence strongly indicated this result (coincidentally, one of the major failings of legal commentators was to discuss this New Federalism jurisprudence when predicting the outcome of the case, which I previously have pointed out). Thanks. Out of curiosity, how commonplace is the disparity between authorial intent and court argumentation when it comes to couching certain aspect of the act/law in question? I ask because it was clear that Virelli and others were aware of the possibility that calling it a tax might be legally prudent. And furthermore, how often has Scotus justified a ruling using unexpected rationale?
With regards to legislative intent (you refer to it as authorial intent), courts (including the Supreme Court) sometimes base their decisions upon it and other times completely ignore it. This is even true of individual judges. As far as I can tell, there really isn't much rhyme or reason for why this happens. I suspect that this is evidence of objective-oriented adjudicating, but I haven't studied the issue enough to say one way or another.
As for the Court coming up with unexpected rationales for their decisions, it happens fairly often. For example, if you look at Establishment Clause cases (1st Amendment prohibition against state-imposed religion), the reasoning, bases, and announced rules for those decisions are inconsistent from case to case. You can also look at a whole bunch of the watershed civil rights cases from the 1950s and 1960s and see instances where the Court's decisions were based upon unexpected and novel lines of reasoning.
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On June 30 2012 03:22 Kukaracha wrote:Show nested quote +On June 30 2012 01:54 xDaunt wrote:On June 30 2012 01:50 Kukaracha wrote:On June 30 2012 01:48 Malarkey817 wrote:On June 30 2012 01:30 rogzardo wrote:On June 30 2012 01:18 Malarkey817 wrote:On June 30 2012 00:54 rogzardo wrote:
We're all going to be taxed very slightly in order to give health care to tens of millions of Americans who can't afford it. If you can't be bothered to lose 1-2% of your income in order to benefit, greatly, millions of your fellow Americans, then you are an immoral person. You can't praise someone's morality for paying a tax, that's actually laughable. Am I a moral person because I pay the local mafia "protection money"? (of course taxes are legitimized, but does that make them moral?) Why not extend the healthcare benefits to our neighboring countries as well? I'm sure there are also a lot of suffering people in Mexico who cannot afford healthcare. Isn't it morally objectionable to ignore these people just because they were born south of the border? Yes, it is just as immoral to ignore your suffering countrymen as those living under another government, but the MORAL solution is NOT to pay for it with money taken under threat of violence from the government. The only moral solution is to help as many people as you can with voluntarily given money. I understand that you want to help everyone and fix the problem once and for all, but all this will do is help a portion of the people and create more problems. Helping 100 million+ Americans is a good place to start. You think its a bad idea to help a portion of low-income people, just because others will still be left without aid? Great plan. By that logic, we have no moral obligation to help anybody, ever! As you say, this will help a portion of the people. A large portion. The 'problems' created are taxing insurance companies, pharmacuetical companies, and individuals who make more tan 200k/year. I'm ok with that. I think you may have missed the part I emphasized with capital letters, so I'll just repeat it here. I think it's a great idea(moral) to help anyone and everyone who is in need of care. I think it's a bad idea(immoral) to coerce or actually force other people to pay for that care unwillingly. This leaves us with voluntary aid as our only moral solution. Is it bad to force people not to kill other people? Should that decision be left at one's discretion? I know that this concept is foreign to some of you non-Americans who don't have a federalist system like we have in the US, but it's not the role of the federal government to exercise a general police power (ie the power to do things like forbidding the killing of others). That job is left to state governments. Did the federal state not intervene in forcing equality between blacks and whites, for example?
Sure, but there was specific federal, Constitutional authority to do so (14th Amendment).
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On June 30 2012 03:32 xDaunt wrote:Show nested quote +On June 30 2012 03:22 farvacola wrote:On June 30 2012 03:17 xDaunt wrote:On June 30 2012 03:08 farvacola wrote:On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike. Yes, you can say that there was a collective failure of legal minds across the country (including me) to anticipate that the Court would uphold law as a tax. In fairness to those legal minds, the law did not say it was a tax, the drafters of the law did not say it was tax, and the administration said it was not a tax up until the case got to the Court. This is why I said that the Court did contortions (or however I put it) to call the law a tax. As for me, I don't pretend to not have preferred outcomes in these things. However, I have objectively explained why I thought certain things would happen with regards to this decision. For example, I explained many times in this thread why the law would not be upheld under the commerce clause and how the Court's "New Federalism" jurisprudence strongly indicated this result (coincidentally, one of the major failings of legal commentators was to discuss this New Federalism jurisprudence when predicting the outcome of the case, which I previously have pointed out). Thanks. Out of curiosity, how commonplace is the disparity between authorial intent and court argumentation when it comes to couching certain aspect of the act/law in question? I ask because it was clear that Virelli and others were aware of the possibility that calling it a tax might be legally prudent. And furthermore, how often has Scotus justified a ruling using unexpected rationale? With regards to legislative intent (you refer to it as authorial intent), courts (including the Supreme Court) sometimes base their decisions upon it and other times completely ignore it. This is even true of individual judges. As far as I can tell, there really isn't much rhyme or reason for why this happens. I suspect that this is evidence of objective-oriented adjudicating, but I haven't studied the issue enough to say one way or another. As for the Court coming up with unexpected rationales for their decisions, it happens fairly often. For example, if you look at Establishment Clause cases (1st Amendment prohibition against state-imposed religion), the reasoning, bases, and announced rules for those decisions are inconsistent from case to case. You can also look at a whole bunch of the watershed civil rights cases from the 1950s and 1960s and see instances where the Court's decisions were based upon unexpected and novel lines of reasoning.
Well I was actually referring more to the possibility of Roberts operating under an acknowledgement of Original Intent, as opposed to Legislative Intent, in that his justification of the individual mandate as a tax may not have been an explicit desire on the part of authors, but rather an unforeseen actuality of the acts imposition.
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On June 30 2012 03:41 farvacola wrote:Show nested quote +On June 30 2012 03:32 xDaunt wrote:On June 30 2012 03:22 farvacola wrote:On June 30 2012 03:17 xDaunt wrote:On June 30 2012 03:08 farvacola wrote:On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike. Yes, you can say that there was a collective failure of legal minds across the country (including me) to anticipate that the Court would uphold law as a tax. In fairness to those legal minds, the law did not say it was a tax, the drafters of the law did not say it was tax, and the administration said it was not a tax up until the case got to the Court. This is why I said that the Court did contortions (or however I put it) to call the law a tax. As for me, I don't pretend to not have preferred outcomes in these things. However, I have objectively explained why I thought certain things would happen with regards to this decision. For example, I explained many times in this thread why the law would not be upheld under the commerce clause and how the Court's "New Federalism" jurisprudence strongly indicated this result (coincidentally, one of the major failings of legal commentators was to discuss this New Federalism jurisprudence when predicting the outcome of the case, which I previously have pointed out). Thanks. Out of curiosity, how commonplace is the disparity between authorial intent and court argumentation when it comes to couching certain aspect of the act/law in question? I ask because it was clear that Virelli and others were aware of the possibility that calling it a tax might be legally prudent. And furthermore, how often has Scotus justified a ruling using unexpected rationale? With regards to legislative intent (you refer to it as authorial intent), courts (including the Supreme Court) sometimes base their decisions upon it and other times completely ignore it. This is even true of individual judges. As far as I can tell, there really isn't much rhyme or reason for why this happens. I suspect that this is evidence of objective-oriented adjudicating, but I haven't studied the issue enough to say one way or another. As for the Court coming up with unexpected rationales for their decisions, it happens fairly often. For example, if you look at Establishment Clause cases (1st Amendment prohibition against state-imposed religion), the reasoning, bases, and announced rules for those decisions are inconsistent from case to case. You can also look at a whole bunch of the watershed civil rights cases from the 1950s and 1960s and see instances where the Court's decisions were based upon unexpected and novel lines of reasoning. Well I was actually referring more to the possibility of Roberts operating under an acknowledgement of Original Intent, as opposed to Legislative Intent, in that his justification of the individual mandate as a tax may not have been an explicit desire on the part of authors, but rather an unforeseen actuality of the acts imposition.
I have a hard time believing that Roberts would have decided the case this way if he was operating under concerns of Original Intent. I don't think that Roberts even discusses what the Founders would have done in his opinion.
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On June 30 2012 03:22 Kukaracha wrote:Show nested quote +On June 30 2012 01:54 xDaunt wrote:On June 30 2012 01:50 Kukaracha wrote:On June 30 2012 01:48 Malarkey817 wrote:On June 30 2012 01:30 rogzardo wrote:On June 30 2012 01:18 Malarkey817 wrote:On June 30 2012 00:54 rogzardo wrote:
We're all going to be taxed very slightly in order to give health care to tens of millions of Americans who can't afford it. If you can't be bothered to lose 1-2% of your income in order to benefit, greatly, millions of your fellow Americans, then you are an immoral person. You can't praise someone's morality for paying a tax, that's actually laughable. Am I a moral person because I pay the local mafia "protection money"? (of course taxes are legitimized, but does that make them moral?) Why not extend the healthcare benefits to our neighboring countries as well? I'm sure there are also a lot of suffering people in Mexico who cannot afford healthcare. Isn't it morally objectionable to ignore these people just because they were born south of the border? Yes, it is just as immoral to ignore your suffering countrymen as those living under another government, but the MORAL solution is NOT to pay for it with money taken under threat of violence from the government. The only moral solution is to help as many people as you can with voluntarily given money. I understand that you want to help everyone and fix the problem once and for all, but all this will do is help a portion of the people and create more problems. Helping 100 million+ Americans is a good place to start. You think its a bad idea to help a portion of low-income people, just because others will still be left without aid? Great plan. By that logic, we have no moral obligation to help anybody, ever! As you say, this will help a portion of the people. A large portion. The 'problems' created are taxing insurance companies, pharmacuetical companies, and individuals who make more tan 200k/year. I'm ok with that. I think you may have missed the part I emphasized with capital letters, so I'll just repeat it here. I think it's a great idea(moral) to help anyone and everyone who is in need of care. I think it's a bad idea(immoral) to coerce or actually force other people to pay for that care unwillingly. This leaves us with voluntary aid as our only moral solution. Is it bad to force people not to kill other people? Should that decision be left at one's discretion? I know that this concept is foreign to some of you non-Americans who don't have a federalist system like we have in the US, but it's not the role of the federal government to exercise a general police power (ie the power to do things like forbidding the killing of others). That job is left to state governments. Did the federal state not intervene in forcing equality between blacks and whites, for example?
Yes, but that was a constitutional amendment (14th) that gave them jurisdiction. The federal government has the power to use police force to enforce the constitution. After the supreme court decided that the state law in Brown overstepped state powers, for example, the federal government called in the military to ensure it was carried out despite the objections of the state and the state lawmakers.
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On June 30 2012 03:45 xDaunt wrote:Show nested quote +On June 30 2012 03:41 farvacola wrote:On June 30 2012 03:32 xDaunt wrote:On June 30 2012 03:22 farvacola wrote:On June 30 2012 03:17 xDaunt wrote:On June 30 2012 03:08 farvacola wrote:On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike. Yes, you can say that there was a collective failure of legal minds across the country (including me) to anticipate that the Court would uphold law as a tax. In fairness to those legal minds, the law did not say it was a tax, the drafters of the law did not say it was tax, and the administration said it was not a tax up until the case got to the Court. This is why I said that the Court did contortions (or however I put it) to call the law a tax. As for me, I don't pretend to not have preferred outcomes in these things. However, I have objectively explained why I thought certain things would happen with regards to this decision. For example, I explained many times in this thread why the law would not be upheld under the commerce clause and how the Court's "New Federalism" jurisprudence strongly indicated this result (coincidentally, one of the major failings of legal commentators was to discuss this New Federalism jurisprudence when predicting the outcome of the case, which I previously have pointed out). Thanks. Out of curiosity, how commonplace is the disparity between authorial intent and court argumentation when it comes to couching certain aspect of the act/law in question? I ask because it was clear that Virelli and others were aware of the possibility that calling it a tax might be legally prudent. And furthermore, how often has Scotus justified a ruling using unexpected rationale? With regards to legislative intent (you refer to it as authorial intent), courts (including the Supreme Court) sometimes base their decisions upon it and other times completely ignore it. This is even true of individual judges. As far as I can tell, there really isn't much rhyme or reason for why this happens. I suspect that this is evidence of objective-oriented adjudicating, but I haven't studied the issue enough to say one way or another. As for the Court coming up with unexpected rationales for their decisions, it happens fairly often. For example, if you look at Establishment Clause cases (1st Amendment prohibition against state-imposed religion), the reasoning, bases, and announced rules for those decisions are inconsistent from case to case. You can also look at a whole bunch of the watershed civil rights cases from the 1950s and 1960s and see instances where the Court's decisions were based upon unexpected and novel lines of reasoning. Well I was actually referring more to the possibility of Roberts operating under an acknowledgement of Original Intent, as opposed to Legislative Intent, in that his justification of the individual mandate as a tax may not have been an explicit desire on the part of authors, but rather an unforeseen actuality of the acts imposition. I have a hard time believing that Roberts would have decided the case this way if he was operating under concerns of Original Intent. I don't think that Roberts even discusses what the Founders would have done in his opinion.
I realize that this is a point of contention amongst legal scholars, but I'm operating under the understanding that Original Intent and Originalism are not the same thing. As I understand it, Original Intent directly competes with Original Meaning (Scalia's brand of Originalism) as an interpretivist strategy of judicial review in which intentionality takes precedence over explication, and not solely in regards to the Constitution but all written pieces of law.
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On June 30 2012 03:55 farvacola wrote:Show nested quote +On June 30 2012 03:45 xDaunt wrote:On June 30 2012 03:41 farvacola wrote:On June 30 2012 03:32 xDaunt wrote:On June 30 2012 03:22 farvacola wrote:On June 30 2012 03:17 xDaunt wrote:On June 30 2012 03:08 farvacola wrote:On June 30 2012 02:59 xDaunt wrote:On June 30 2012 02:52 farvacola wrote:On June 30 2012 02:49 xDaunt wrote:
Just as an aside, most of the legal commentary that I have seen and heard about the decision has been absolutely appalling. It's been so bad and so inaccurate that I've wondered whether these people have actually read the decision. For example, I was watching two women last night, both of whom clerked on the US Supreme Court, and each was missing and omitting key aspects of the decision. Long story short, don't necessary trust what you're hearing from media figures about the decision. To be frank, if any of us had put faith into your brand of good "legal commentary" we'd have been far more surprised by the courts decision yesterday. If legal analysis out there is bad, tell us why please, instead of simply asserting so. I've pointed out numerous times why and where legal commentary has been bad. Again, I'm sorta amused by all of you who think that I was wrong about the case because it's clear that you don't really understand how these decisions work. My prediction was that the law would not survive under the commerce clause, thus it would be struck down. As it turns, I was right except with regards to the law being struck down. The Court did not uphold the law under the commerce clause. What I did not expect is that the Court would consider the mandate to be a "tax," which basically no one argued or took seriously -- not the parties and not the commentators. Everyone thought that this case was going to be decided under the commerce clause (including me), which is why everyone is surprised about how the law survived. So anyway, it's your choice. You can either learn something from this discussion or be a partisan hack for the sake of being one. So a total ignorance of the judicial prerogative to exhaust every vein of constitutionality before ruling on a given law or act is what then? A collective failure on the part of legal minds in the US or an expectation that the court would rule as partisanly as Roberts had declared years ago? And while I may have partisan inclinations, at least I don't hide them behind a pseudo-affluent brand of constitutionalism. Here's you just a few pages back. "And that's the most distressing part about the Democrat/liberal position on Obamacare and the individual mandate. Having the Court strike it down is a true, unequivocal win for freedom" Whelp, freedom lost, and pots and kettles everywhere are preparing to strike. Yes, you can say that there was a collective failure of legal minds across the country (including me) to anticipate that the Court would uphold law as a tax. In fairness to those legal minds, the law did not say it was a tax, the drafters of the law did not say it was tax, and the administration said it was not a tax up until the case got to the Court. This is why I said that the Court did contortions (or however I put it) to call the law a tax. As for me, I don't pretend to not have preferred outcomes in these things. However, I have objectively explained why I thought certain things would happen with regards to this decision. For example, I explained many times in this thread why the law would not be upheld under the commerce clause and how the Court's "New Federalism" jurisprudence strongly indicated this result (coincidentally, one of the major failings of legal commentators was to discuss this New Federalism jurisprudence when predicting the outcome of the case, which I previously have pointed out). Thanks. Out of curiosity, how commonplace is the disparity between authorial intent and court argumentation when it comes to couching certain aspect of the act/law in question? I ask because it was clear that Virelli and others were aware of the possibility that calling it a tax might be legally prudent. And furthermore, how often has Scotus justified a ruling using unexpected rationale? With regards to legislative intent (you refer to it as authorial intent), courts (including the Supreme Court) sometimes base their decisions upon it and other times completely ignore it. This is even true of individual judges. As far as I can tell, there really isn't much rhyme or reason for why this happens. I suspect that this is evidence of objective-oriented adjudicating, but I haven't studied the issue enough to say one way or another. As for the Court coming up with unexpected rationales for their decisions, it happens fairly often. For example, if you look at Establishment Clause cases (1st Amendment prohibition against state-imposed religion), the reasoning, bases, and announced rules for those decisions are inconsistent from case to case. You can also look at a whole bunch of the watershed civil rights cases from the 1950s and 1960s and see instances where the Court's decisions were based upon unexpected and novel lines of reasoning. Well I was actually referring more to the possibility of Roberts operating under an acknowledgement of Original Intent, as opposed to Legislative Intent, in that his justification of the individual mandate as a tax may not have been an explicit desire on the part of authors, but rather an unforeseen actuality of the acts imposition. I have a hard time believing that Roberts would have decided the case this way if he was operating under concerns of Original Intent. I don't think that Roberts even discusses what the Founders would have done in his opinion. I realize that this is a point of contention amongst legal scholars, but I'm operating under the understanding that Original Intent and Originalism are not the same thing. As I understand it, Original Intent directly competes with Original Meaning (Scalia's brand of Originalism) as an interpretivist strategy of judicial review in which intentionality takes precedence over explication, and not solely in regards to the Constitution but all written pieces of law.
Yep, you're right.
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On June 30 2012 03:08 BluePanther wrote:Show nested quote +On June 30 2012 02:53 hzflank wrote:On June 30 2012 02:32 BluePanther wrote:On June 30 2012 02:25 hzflank wrote:On June 30 2012 02:09 xDaunt wrote:On June 30 2012 02:03 BuddhaMonk wrote:On June 30 2012 01:59 xDaunt wrote:On June 30 2012 01:56 BuddhaMonk wrote:On June 30 2012 01:48 Malarkey817 wrote:On June 30 2012 01:30 rogzardo wrote:
[quote]
Helping 100 million+ Americans is a good place to start. You think its a bad idea to help a portion of low-income people, just because others will still be left without aid? Great plan. By that logic, we have no moral obligation to help anybody, ever!
As you say, this will help a portion of the people. A large portion. The 'problems' created are taxing insurance companies, pharmacuetical companies, and individuals who make more tan 200k/year. I'm ok with that. I think you may have missed the part I emphasized with capital letters, so I'll just repeat it here. I think it's a great idea(moral) to help anyone and everyone who is in need of care. I think it's a bad idea(immoral) to coerce or actually force other people to pay for that care unwillingly. This leaves us with voluntary aid as our only moral solution. Do you also think that national security is something that should be funded by voluntary money, or is that something where it's OK to "coerce" people and use the money for a military? There's clearly a difference between 1) the federal government taxing people and using that tax money to fund government programs, and 2) the federal government using the tax power to force people to buy products from private companies. You may want to consider this point before posting further. Are you suggesting that public money for national security never finds its way into the pockets private companies? Or it's OK in your mind so long as the government is an intermediary? The latter. The feds can spend money for public welfare. That's not in dispute. However, forcing private individuals to engage in behavior (ie buy products from private companies) that they otherwise would not engage in by using the tax power is not right. Sorry, but you are not connecting the dots... There is no real difference between forcing a person to buy a product or taxing that person to generate money to buy the same product. ... and that is why he's saying SCOTUS was not right in their decision. Would you spell it out for me? I am under the impression that the federal government is allowed to instruct states on how to tax their citizens. They are allowed to tax, but the way the law is written, it's basically a fine in substance -- a penalty -- which SCOTUS said quite clearly is not allowable. So the court is allowing the government to do exactly the opposite of what it said the government couldn't do --- penalize someone for not following a mandate. It's circular logic imo.
It's basically a fine? Did SCOTUS not just declare it a legal tax? And is SCOTUS not the absolute authority on US law? As I see it, it is as much basically a fine as it is a tax break for insured people.
As a layperson, I often feel that semantics have too much sway over common sense (in law). I fully agree that common sense tells us that that you are correct, but legally it seems that you are incorrect.
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On June 30 2012 03:58 hzflank wrote:Show nested quote +On June 30 2012 03:08 BluePanther wrote:On June 30 2012 02:53 hzflank wrote:On June 30 2012 02:32 BluePanther wrote:On June 30 2012 02:25 hzflank wrote:On June 30 2012 02:09 xDaunt wrote:On June 30 2012 02:03 BuddhaMonk wrote:On June 30 2012 01:59 xDaunt wrote:On June 30 2012 01:56 BuddhaMonk wrote:On June 30 2012 01:48 Malarkey817 wrote:
[quote]
I think you may have missed the part I emphasized with capital letters, so I'll just repeat it here. I think it's a great idea(moral) to help anyone and everyone who is in need of care. I think it's a bad idea(immoral) to coerce or actually force other people to pay for that care unwillingly. This leaves us with voluntary aid as our only moral solution. Do you also think that national security is something that should be funded by voluntary money, or is that something where it's OK to "coerce" people and use the money for a military? There's clearly a difference between 1) the federal government taxing people and using that tax money to fund government programs, and 2) the federal government using the tax power to force people to buy products from private companies. You may want to consider this point before posting further. Are you suggesting that public money for national security never finds its way into the pockets private companies? Or it's OK in your mind so long as the government is an intermediary? The latter. The feds can spend money for public welfare. That's not in dispute. However, forcing private individuals to engage in behavior (ie buy products from private companies) that they otherwise would not engage in by using the tax power is not right. Sorry, but you are not connecting the dots... There is no real difference between forcing a person to buy a product or taxing that person to generate money to buy the same product. ... and that is why he's saying SCOTUS was not right in their decision. Would you spell it out for me? I am under the impression that the federal government is allowed to instruct states on how to tax their citizens. They are allowed to tax, but the way the law is written, it's basically a fine in substance -- a penalty -- which SCOTUS said quite clearly is not allowable. So the court is allowing the government to do exactly the opposite of what it said the government couldn't do --- penalize someone for not following a mandate. It's circular logic imo. It's basically a fine? Did SCOTUS not just declare it a legal tax? And is SCOTUS not the absolute authority on US law? As I see it, it is as much basically a fine as it is a tax break for insured people. As a layperson, I often feel that semantics have too much sway over common sense (in law). I fully agree that common sense tells us that that you are correct, but legally it seems that you are incorrect.
It's a fine, but it's collected as a tax (by the IRS). It's semantics to say it's a tax and not a fine -- either way you're paying the government money because you didn't do what they told you to do.
Nobody questions that the government could tax the people and then provide the healthcare. But this precedent opens up a new method for the federal government to exercise control over individuals that hasn't previously existed in the united states.
Basically, the government can now control anything it wants (financially, not jail time) if it just assesses the penalty/fine for not doing what they want as a "tax" collected by tax collectors instead of being directly paid to the government (like a normal fine).
It's just lawyers being lawyers, and this just creates a loophole and isn't sound judicial or constitutional (limited government) policy. That's why I don't think they were "right".
(for clarification, I specialize in government/constitutional law)
Yes, legally it's correct, but it flies in the face of common sense (that it's a financial penalty).
For example:
It is unconstitutional to say "You must buy 10 pounds of brocolli a year."
It is constitutional to say "You must pay $10,000 in taxes if you do not purchase 10 pounds of brocolli a year."
It's a federal power loophole.
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Here's a good explanation of why Roberts's decision that Obamacare is a tax is odd:
No one knew it at the time, but the key moment in the Supreme Court Obamacare case came on March 26, the first day of oral arguments, when few people were paying close attention.
Before getting to the heart of the case, the justices first wanted to deal with what seemed to be a side issue: Was the penalty imposed by the individual mandate in Obamacare a tax? If it was, the case would run afoul of a 19th century-law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it. Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then.
No one had challenged Obamacare on that basis; the challengers wanted the case to go forward now. The White House, having argued strenuously during the Obamacare debate that the penalty wasn't a tax, wanted to go ahead as well. So the court, on its own, tapped a Washington attorney to make the argument that the penalty was a tax and therefore the case should not go ahead.
"The Anti-Injunction Act imposes a 'pay first, litigate later' rule that is central to federal tax assessment and collection," said the lawyer, Robert A. Long, on that first day of oral arguments. "The Act applies to essentially every tax penalty in the Internal Revenue Code. There is no reason to think that Congress made a special exception for the penalty imposed by [Obamacare]."
After Long made his case, it fell to the administration's lawyer, Solicitor General Donald Verrilli, to argue that no, the mandate was not a tax, and therefore the case was not subject to the Anti-Injunction Act.
At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution's Commerce Clause, he had as a backup the argument that it was also justified by Congress' power to levy taxes -- in other words, that it was a tax.
Justice Samuel Alito saw the conflict right away.
"General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"
"No," answered Verrilli.
At the time, some observers found the whole thing a little boring; the real action would come the next day, when the court got to the question of whether the Commerce Clause could be stretched to include the individual mandate.
But a lot of those same observers were shocked on Thursday, when Chief Justice John Roberts, rejecting the Commerce Clause argument, agreed with Verrilli that the mandate simultaneously was and was not a tax, and that therefore Obamacare would stand. Roberts joined the court's four liberal justices, Ginsburg, Breyer, Sotomayor and Kagan, who seemed prepared to uphold Obamacare under any circumstances.
Roberts' sleight of hand drove his conservative colleagues nuts. "The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes," wrote dissenters Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. "That carries verbal wizardry too far, deep into the forbidden land of the sophists."
After the ruling, Obamacare opponents pointed out the thousands of times the president and Democratic lawmakers had contended that the mandate penalty was not -- repeat, not -- a tax. But it no longer mattered. "Call it what you will," said former House Speaker Nancy Pelosi.
Outside the court, the conservatives who thought they knew Roberts seemed baffled. "For whatever reason, and you'll have to ask Justice Roberts, he re-wrote the statute," said Mike Carvin, who argued against Obamacare in the case. "I'm glad he re-wrote the statute rather than the Constitution, but none of it can pass rational scrutiny."
Maybe rational scrutiny isn't what is called for. If a person wants to do something badly enough, he'll come up with a reason for doing it. John Roberts, apparently, wanted to uphold Obamacare, even if it meant venturing deep into the forbidden land of the sophists.
Source.
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On June 30 2012 04:09 BluePanther wrote:Show nested quote +On June 30 2012 03:58 hzflank wrote:On June 30 2012 03:08 BluePanther wrote:On June 30 2012 02:53 hzflank wrote:On June 30 2012 02:32 BluePanther wrote:On June 30 2012 02:25 hzflank wrote:On June 30 2012 02:09 xDaunt wrote:On June 30 2012 02:03 BuddhaMonk wrote:On June 30 2012 01:59 xDaunt wrote:On June 30 2012 01:56 BuddhaMonk wrote:
[quote]
Do you also think that national security is something that should be funded by voluntary money, or is that something where it's OK to "coerce" people and use the money for a military? There's clearly a difference between 1) the federal government taxing people and using that tax money to fund government programs, and 2) the federal government using the tax power to force people to buy products from private companies. You may want to consider this point before posting further. Are you suggesting that public money for national security never finds its way into the pockets private companies? Or it's OK in your mind so long as the government is an intermediary? The latter. The feds can spend money for public welfare. That's not in dispute. However, forcing private individuals to engage in behavior (ie buy products from private companies) that they otherwise would not engage in by using the tax power is not right. Sorry, but you are not connecting the dots... There is no real difference between forcing a person to buy a product or taxing that person to generate money to buy the same product. ... and that is why he's saying SCOTUS was not right in their decision. Would you spell it out for me? I am under the impression that the federal government is allowed to instruct states on how to tax their citizens. They are allowed to tax, but the way the law is written, it's basically a fine in substance -- a penalty -- which SCOTUS said quite clearly is not allowable. So the court is allowing the government to do exactly the opposite of what it said the government couldn't do --- penalize someone for not following a mandate. It's circular logic imo. It's basically a fine? Did SCOTUS not just declare it a legal tax? And is SCOTUS not the absolute authority on US law? As I see it, it is as much basically a fine as it is a tax break for insured people. As a layperson, I often feel that semantics have too much sway over common sense (in law). I fully agree that common sense tells us that that you are correct, but legally it seems that you are incorrect. It's a fine, but it's collected as a tax (by the IRS). Basically, the government can now control anything it wants (financially, not jail time) if it just assesses the penalty/fine for not doing what they want as a "tax" collected by tax collectors instead of being directly paid to the government (like a normal fine). It's just lawyers being lawyers, and this just creates a loophole and isn't sound judicial or constitutional (limited government) policy. That's why I don't think they were "right". (for clarification, I specialize in government/constitutional law) Yes, legally it's correct, but it flies in the face of common sense (that it's a financial penalty).
What limitations exist on the Federal government's ability to tax and which limitation does this law violate?
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On June 30 2012 04:13 JonnyBNoHo wrote:Show nested quote +On June 30 2012 04:09 BluePanther wrote:On June 30 2012 03:58 hzflank wrote:On June 30 2012 03:08 BluePanther wrote:On June 30 2012 02:53 hzflank wrote:On June 30 2012 02:32 BluePanther wrote:On June 30 2012 02:25 hzflank wrote:On June 30 2012 02:09 xDaunt wrote:On June 30 2012 02:03 BuddhaMonk wrote:On June 30 2012 01:59 xDaunt wrote:
[quote]
There's clearly a difference between 1) the federal government taxing people and using that tax money to fund government programs, and 2) the federal government using the tax power to force people to buy products from private companies. You may want to consider this point before posting further. Are you suggesting that public money for national security never finds its way into the pockets private companies? Or it's OK in your mind so long as the government is an intermediary? The latter. The feds can spend money for public welfare. That's not in dispute. However, forcing private individuals to engage in behavior (ie buy products from private companies) that they otherwise would not engage in by using the tax power is not right. Sorry, but you are not connecting the dots... There is no real difference between forcing a person to buy a product or taxing that person to generate money to buy the same product. ... and that is why he's saying SCOTUS was not right in their decision. Would you spell it out for me? I am under the impression that the federal government is allowed to instruct states on how to tax their citizens. They are allowed to tax, but the way the law is written, it's basically a fine in substance -- a penalty -- which SCOTUS said quite clearly is not allowable. So the court is allowing the government to do exactly the opposite of what it said the government couldn't do --- penalize someone for not following a mandate. It's circular logic imo. It's basically a fine? Did SCOTUS not just declare it a legal tax? And is SCOTUS not the absolute authority on US law? As I see it, it is as much basically a fine as it is a tax break for insured people. As a layperson, I often feel that semantics have too much sway over common sense (in law). I fully agree that common sense tells us that that you are correct, but legally it seems that you are incorrect. It's a fine, but it's collected as a tax (by the IRS). Basically, the government can now control anything it wants (financially, not jail time) if it just assesses the penalty/fine for not doing what they want as a "tax" collected by tax collectors instead of being directly paid to the government (like a normal fine). It's just lawyers being lawyers, and this just creates a loophole and isn't sound judicial or constitutional (limited government) policy. That's why I don't think they were "right". (for clarification, I specialize in government/constitutional law) Yes, legally it's correct, but it flies in the face of common sense (that it's a financial penalty). What limitations exist on the Federal government's ability to tax and which limitation does this law violate?
It is my opinion that it should be treated not as a tax, but rather as a penalty. It is what it is, not what you call it.
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On June 30 2012 04:09 BluePanther wrote:Show nested quote +On June 30 2012 03:58 hzflank wrote:On June 30 2012 03:08 BluePanther wrote:On June 30 2012 02:53 hzflank wrote:On June 30 2012 02:32 BluePanther wrote:On June 30 2012 02:25 hzflank wrote:On June 30 2012 02:09 xDaunt wrote:On June 30 2012 02:03 BuddhaMonk wrote:On June 30 2012 01:59 xDaunt wrote:On June 30 2012 01:56 BuddhaMonk wrote:
[quote]
Do you also think that national security is something that should be funded by voluntary money, or is that something where it's OK to "coerce" people and use the money for a military? There's clearly a difference between 1) the federal government taxing people and using that tax money to fund government programs, and 2) the federal government using the tax power to force people to buy products from private companies. You may want to consider this point before posting further. Are you suggesting that public money for national security never finds its way into the pockets private companies? Or it's OK in your mind so long as the government is an intermediary? The latter. The feds can spend money for public welfare. That's not in dispute. However, forcing private individuals to engage in behavior (ie buy products from private companies) that they otherwise would not engage in by using the tax power is not right. Sorry, but you are not connecting the dots... There is no real difference between forcing a person to buy a product or taxing that person to generate money to buy the same product. ... and that is why he's saying SCOTUS was not right in their decision. Would you spell it out for me? I am under the impression that the federal government is allowed to instruct states on how to tax their citizens. They are allowed to tax, but the way the law is written, it's basically a fine in substance -- a penalty -- which SCOTUS said quite clearly is not allowable. So the court is allowing the government to do exactly the opposite of what it said the government couldn't do --- penalize someone for not following a mandate. It's circular logic imo. It's basically a fine? Did SCOTUS not just declare it a legal tax? And is SCOTUS not the absolute authority on US law? As I see it, it is as much basically a fine as it is a tax break for insured people. As a layperson, I often feel that semantics have too much sway over common sense (in law). I fully agree that common sense tells us that that you are correct, but legally it seems that you are incorrect. It's a fine, but it's collected as a tax (by the IRS). It's semantics to say it's a tax and not a fine -- either way you're paying the government money because you didn't do what they told you to do. Nobody questions that the government could tax the people and then provide the healthcare. But this precedent opens up a new method for the federal government to exercise control over individuals that hasn't previously existed in the united states. Basically, the government can now control anything it wants (financially, not jail time) if it just assesses the penalty/fine for not doing what they want as a "tax" collected by tax collectors instead of being directly paid to the government (like a normal fine). It's just lawyers being lawyers, and this just creates a loophole and isn't sound judicial or constitutional (limited government) policy. That's why I don't think they were "right". (for clarification, I specialize in government/constitutional law) Yes, legally it's correct, but it flies in the face of common sense (that it's a financial penalty). For example: It is unconstitutional to say "You must buy 10 pounds of brocolli a year." It is constitutional to say "You must pay $10,000 in taxes if you do not purchase 10 pounds of brocolli a year." It's a federal power loophole.
This is really interesting, by the way Blue Panther what is your job/ current level of study?
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On June 30 2012 04:16 BluePanther wrote:Show nested quote +On June 30 2012 04:13 JonnyBNoHo wrote:On June 30 2012 04:09 BluePanther wrote:On June 30 2012 03:58 hzflank wrote:On June 30 2012 03:08 BluePanther wrote:On June 30 2012 02:53 hzflank wrote:On June 30 2012 02:32 BluePanther wrote:On June 30 2012 02:25 hzflank wrote:On June 30 2012 02:09 xDaunt wrote:On June 30 2012 02:03 BuddhaMonk wrote:
[quote]
Are you suggesting that public money for national security never finds its way into the pockets private companies? Or it's OK in your mind so long as the government is an intermediary? The latter. The feds can spend money for public welfare. That's not in dispute. However, forcing private individuals to engage in behavior (ie buy products from private companies) that they otherwise would not engage in by using the tax power is not right. Sorry, but you are not connecting the dots... There is no real difference between forcing a person to buy a product or taxing that person to generate money to buy the same product. ... and that is why he's saying SCOTUS was not right in their decision. Would you spell it out for me? I am under the impression that the federal government is allowed to instruct states on how to tax their citizens. They are allowed to tax, but the way the law is written, it's basically a fine in substance -- a penalty -- which SCOTUS said quite clearly is not allowable. So the court is allowing the government to do exactly the opposite of what it said the government couldn't do --- penalize someone for not following a mandate. It's circular logic imo. It's basically a fine? Did SCOTUS not just declare it a legal tax? And is SCOTUS not the absolute authority on US law? As I see it, it is as much basically a fine as it is a tax break for insured people. As a layperson, I often feel that semantics have too much sway over common sense (in law). I fully agree that common sense tells us that that you are correct, but legally it seems that you are incorrect. It's a fine, but it's collected as a tax (by the IRS). Basically, the government can now control anything it wants (financially, not jail time) if it just assesses the penalty/fine for not doing what they want as a "tax" collected by tax collectors instead of being directly paid to the government (like a normal fine). It's just lawyers being lawyers, and this just creates a loophole and isn't sound judicial or constitutional (limited government) policy. That's why I don't think they were "right". (for clarification, I specialize in government/constitutional law) Yes, legally it's correct, but it flies in the face of common sense (that it's a financial penalty). What limitations exist on the Federal government's ability to tax and which limitation does this law violate? It is my opinion that it should be treated not as a tax, but rather as a penalty. It is what it is, not what you call it.
Anything that raises revenue is a tax, at least that's what I gathered from the oral arguments.
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EPT
