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Laelth

(32,017 posts) Thu Jun 28, 2012, 12:00 PM Jun 2012

Glaring contradiction in SCOTUS ruling on ACA. A tax or not a tax?

This is an invitation to discuss a puzzling contradiction that crops up in the majority opinion regarding the ACA.

The first question that the Court addresses is whether it has standing to even rule on the individual mandate. Congress has already dictated (in the Anti-Injunction Act) that the Court can't rule on the constitutionality of a given tax until that tax has been collected. Because the tax in question (the penalty for not buying health insurance) has not been collected yet (and won't be until 2014), some argued that the Court could not rule on the mandate yet. This argument makes sense to me, but the Court said it could rule on the subject because, ultimately, the "shared responsibility payment," i.e. the penalty, was not a tax.

Fine. I can understand that. But then the Court rules that Congress does not have the power to enforce the mandate under the Commerce clause. Personally, I agree, and I was pleased with this finding. Instead, the Court says that Congress has the power to enact the mandate because the mandate is, in fact, a tax.

A tax? Really? If so, then the Anti-Injunction Act says the Court can't rule on the mandate until 2014 after the tax has already been collected.

I found this odd, and I think the Court had to stretch the law a bit, here, in order to rule that the mandate was Constitutional.

-Laelth

14 replies

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Highlight:

Glaring contradiction in SCOTUS ruling on ACA. A tax or not a tax? (Original Post) Laelth Jun 2012 OP

Logic has no power to invalidate a SCOTUS decision; similar to the fable, we must pretend Romulox Jun 2012 #1

Have you read the entire decision? elleng Jun 2012 #2

Here's where they deal with this issue: Laelth Jun 2012 #7

You really get the idea that Roberts came to his conclusion and then went and found the arguments. BlueCheese Jun 2012 #9

I don't think you are. It strikes me as a classic example of first reaching a decision then finding PoliticAverse Jun 2012 #10

Not twisted logic cthulu2016 Jun 2012 #14

If it walks like a tax and sounds like a tax it must be a tax SoutherDem Jun 2012 #3

It's now, officially, a tax. Laelth Jun 2012 #6

Tax, like social security. nadinbrzezinski Jun 2012 #4

Yes their argument why the Anti-Injunction Act didn't apply will foment much discussion n/t PoliticAverse Jun 2012 #5

Here's some commentary as to why the Anti-Injunction Act didn't apply... PoliticAverse Jun 2012 #8

There are two separate questions cthulu2016 Jun 2012 #11

Thanks cthulu2016. Been reading SCOTUS blog all day. That really explains it well. joshcryer Jun 2012 #12

Politics, one assumes. cthulu2016 Jun 2012 #13

Romulox

(25,960 posts)

1. Logic has no power to invalidate a SCOTUS decision; similar to the fable, we must pretend

Reply to Laelth (Original post)

Thu Jun 28, 2012, 12:02 PM

Jun 2012

that the Emperor wears fine clothes.

elleng

(131,457 posts)

2. Have you read the entire decision?

Reply to Laelth (Original post)

Thu Jun 28, 2012, 12:06 PM

Jun 2012

The entire mandate/tax portion?
The entire anti-injunction portion?
I haven't read any entire portion.

Laelth

(32,017 posts)

7. Here's where they deal with this issue:

Reply to elleng (Reply #2)

Thu Jun 28, 2012, 12:49 PM

Jun 2012

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.

So, in effect, the majority argues that Congress gave them the right to review this tax now because "it's up to Congress whether to apply the Anti-Injunction Act to any particular statute." In choosing to label the tax as a penalty, the SCOTUS says, Congress implicitly gave the SCOTUS the right to review this feature of the law.

Huh? That seems like some twisted logic to me. Am I missing something?

-Laelth

BlueCheese

(2,522 posts)

9. You really get the idea that Roberts came to his conclusion and then went and found the arguments.

Reply to Laelth (Reply #7)

Thu Jun 28, 2012, 08:15 PM

Jun 2012

Maybe that's what they always do. See Bush vs. Gore, for example.

PoliticAverse

(26,366 posts)

10. I don't think you are. It strikes me as a classic example of first reaching a decision then finding

Reply to Laelth (Reply #7)

Thu Jun 28, 2012, 10:43 PM

Jun 2012

a justification for it.

cthulu2016

(10,960 posts)

14. Not twisted logic

Reply to Laelth (Reply #7)

Thu Jun 28, 2012, 11:54 PM

Jun 2012

The anti-injunction act is a creation of congress and for purposes of the anti-injunction act Congress gets to define whether a bill is covered by the AIA.

But not calling it a tax Congress waived the AIA, and has the power to do so. They are free to expose a tax to pre-collection challenge, by calling it an aardvark instead of a tax, if they feel like it.

But how congress labels a bill does not affect constitutional analysis of whether the bill is within congress' power. If congress called a tax an aardvark it would still be within their power as long as "aardvark" means you send the government a check.

Someone would say, "Congress has no aardvark power," and the court says, "In terms of that question, the question is whether Congress can make you send the government a check, which it can. How they chose to label it doesn't change the nature of the power. Aardvark is just another name for tax."

"And, looking at this in the alternative, if Congress passed an aardvark that said you must send the government a check to be allowed to vote we would say, that is a poll tax, and calling it something different doesn't change that."

SoutherDem

(2,307 posts)

3. If it walks like a tax and sounds like a tax it must be a tax

Reply to Laelth (Original post)

Thu Jun 28, 2012, 12:08 PM

Jun 2012

I stated those exact words the day it was argued before the SCOTUS.
I stated it was called a mandate to keep from using the word tax.
I was crucified here on DU by many.
I don't want to be misunderstood. I support the ACA, I wish it went further. I wish it was single payer or a full expansion of medicare to all.
Call it a tax, call it a mandate call it whatever you wish.

Laelth

(32,017 posts)

6. It's now, officially, a tax.

Reply to SoutherDem (Reply #3)

Thu Jun 28, 2012, 12:30 PM

Jun 2012

And it is so because the SCOTUS said so. I'm fine with that.

But, if it's a tax, the SCOTUS should not have ruled on its constitutionality until 2014. That's my point. If it's a tax (and it must be because the SCOTUS said so), then the SCOTUS lacked jurisdiction to hear the case according to the Anti-Injunction Act.

They should have waited until 2014 to rule if they wanted to call the mandate a tax.

Am I missing something?

-Laelth

nadinbrzezinski

(154,021 posts)

4. Tax, like social security.

Reply to Laelth (Original post)

Thu Jun 28, 2012, 12:09 PM

Jun 2012

This is how it was decided by SCOTUS too.

PoliticAverse

(26,366 posts)

5. Yes their argument why the Anti-Injunction Act didn't apply will foment much discussion n/t

Reply to Laelth (Original post)

Thu Jun 28, 2012, 12:10 PM

Jun 2012

PoliticAverse

(26,366 posts)

8. Here's some commentary as to why the Anti-Injunction Act didn't apply...

Reply to Laelth (Original post)

Thu Jun 28, 2012, 08:00 PM

Jun 2012

http://www.scotusblog.com/2012/06/sometimes-labels-matter-why-the-anti-injunction-act-didnt-preclude-judicial-consideration-of-the-individual-mandate/

cthulu2016

(10,960 posts)

11. There are two separate questions

Reply to Laelth (Original post)

Thu Jun 28, 2012, 11:02 PM

Jun 2012

1) does the mandate penalty trigger the AIA. No.

2) does Congress have the power to enact the mandate penalty under its general power to levy taxes and fees. Yes.

The AIA is not triggered by any and all conceivable uses of congress' tax authority.

That's the general argument.

At first glance, the idea of using two tests to answer the same question – “Is this a tax? – is counterintuitive. But Chief Justice Roberts’ opinion explains the reason for the distinction: the Constitution imposes limits upon Congress, and it would undermine those limits if Congress could circumvent them merely by altering the label on a piece of legislation. That is why for purposes of determining the scope of the taxing power, the label does not matter. However, the AIA is Congressional policy, and so the key question in that context is whether Congress intended for that policy to apply in a particular case. If Congress wants the AIA to apply, it knows to use language echoing that statute. Similarly, if Congress does not want the AIA to apply, it will use different language, and courts should respect that judgment. In this case, because Congress deliberately avoided using the word “tax,” opting instead to describe the shared responsibility payment (the consequence of not purchasing insurance, and thus the sole incentive to comply with the mandate) as a “penalty,” the Court held that Congress did not intend for the AIA to preclude judicial consideration of the mandate.

http://www.scotusblog.com/2012/06/sometimes-labels-matter-why-the-anti-injunction-act-didnt-preclude-judicial-consideration-of-the-individual-mandate/

joshcryer

(62,287 posts)

12. Thanks cthulu2016. Been reading SCOTUS blog all day. That really explains it well.

Reply to cthulu2016 (Reply #11)

Thu Jun 28, 2012, 11:14 PM

Jun 2012

My question is why they deliberately avoided the word "tax" even though it clearly is one.

cthulu2016

(10,960 posts)

13. Politics, one assumes.

Reply to joshcryer (Reply #12)

Thu Jun 28, 2012, 11:41 PM

Jun 2012

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