The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.It's not much of an argument, though, because the "old law" is still relevant. Thus, it won't do to say that this wasn't a tax by 1867's standards, but it is by today's. We have to say that right now it is not a tax, because if it were that would create negative consequences for the government's desire to resolve this issue now; and that also, right now, it is a tax because otherwise Congress has no authority to do it.
One thing that I find odd is that the administration doesn't want to take the out -- apparently they argued earlier that this was a tax (full stop), and thus that the 1867 law prevented any lawsuits until someone had paid the tax. That would put the issue off until 2015, when presumably every insurance company in America will be well on its way to going out of business because of the costs associated with compliance. By 2015, in other words, the law won't be subject to being overturned in the same way, because the private health-insurance market will have been crippled. You'll be well on your way to something like single payer.
So what's the deal? Is this a calculation by the President that he won't be re-elected, and thus putting off the court ruling a year or two is not a good idea? An expected conservative shift in the court's composition seems like the only thing I can think of that is strong enough to shift the balance on the above calculation. That's a not a show of confidence by the administration as to its chances for re-election.
3 comments:
it won't do to say that this wasn't a tax by 1867's standards, but it is by today's.
It isn't by today's standard, either. The House version of PPACA had the individual being taxed with a tax--House language. However, what the law actually says is the Senate's language: it's a penalty. The Congress explicitly made it (not just chose to call it) a penalty.
from Section 5000 of the PPACA: ‘‘(1) IN GENERAL.—If an applicable individual fails to meet
the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c). (Subsection (c) essentially sets the penalty at $750.) Moreover, as Justice Ginsburg noted in today's...conversations...it can't possibly be intended to raise revenue (which the lawyer appointed to argue for dismissal under the AIA claimed as a characteristic that made this a tax): if the thing works, no revenue at all will be raised.
The insurance companies are similarly penalized, not taxed, for noncompliance.
The (Virginia? I don't have the reference handy) even called out the government's lawyer when he struck down the Individual Mandate, saying that the government couldn't pass a noncompliance penalty and then start calling it a tax when it was convenient to do so.
As to the question you actually asked, I think Obama has simply chosen to roll the dice and get PPACA upheld now, rather than later. Get the question settled this year.
Another blogger, though (again, no cite--sorry), sees this as a lose-lose situation for Obama. Either the law is struck down and Obama gets a major loss on his signature achievement in a Presidential election year, or the law is upheld and a thoroughly POed electorate in an election year sweeps Republicans into power everywhere so the law can be repealed.
I'm not sanguine about that, though. Separately, even if the law is struck down, it still needs explicitly to be repealed. If it's still on the books, it can be "tweaked" to answer the Court's objections, and then we're stuck with a bad, but constitutional, law.
Eric Hines
It's a calculation that they can contradict themselves in the most absurd ways, and no one in the media or the voting population will call them out, because they're so much smarter than the peasants.
Did you notice the election results in Queensland this week? How I hope our batch have equally miscalculated.
"It's a calculation that they can contradict themselves in the most absurd ways, and no one in the media or the voting population will call them out, because they're so much smarter than the peasants."
Imagine their surprise to discover many of the peasantry are... punching above their weight.
"Did you notice the election results in Queensland this week? How I hope our batch have equally miscalculated."
A particularly humorous headline said something about Bligh leading Labor to a record-breaking defeat. 'Twas a regular mutiny.
It could happen here, but the GOP has a knack for snatching defeat from the maw of victory.
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