The Easiest Justification For The Obamacare Mandate Is The One That's Gotten The Least Attention: It's A Tax

The New Republic:

Put aside all the questions about regulating interstate commerce and whether declining to buy health insurance constitutes “inactivity.” Is the Obamacare mandate a tax? And, if so, does that make it constitutional? In a new piece for the Atlantic, Jack Balkin argues that the answer to both questions is plainly “yes”—and wonders why that argument hasn’t loomed larger in the court cases challenging the Affordable Care Act.

Read the whole story: The New Republic

Comments

[jdstelecom]

08:29 PM on 05/09/2012

This had to be one of the most pitiful defenses of Obamacare.

First, although it is true that Congress calling it a penalty is not legally binding, it is suggestive of what Congress thought they were enacting.

Second, one of the legal standards for determining whether it’s a tax is whether its primary purpose is to raise revenue. Here the author merely asserts that it will raise revenue and moves on. In fact, if the mandate worked perfectly it would raise no revenue.

Third, both parties argued that it wasn’t a tax. In theory the court could independently determine it’s a tax. But our system is an adversarial one. If both parties agree on a point it is rare that the court would rule the other way

Finally, the author declares without any support that it is not a direct tax (if it were it would be unconstitutional). If it isn’t a direct tax then what tax is it? It isn’t an income tax because the mandate/tax is required independent of income. It certainly isn’t an indirect/excise tax. The courts have ruled these apply to some activity; here the penalty accrues when you do nothing. It is obviously a “head tax”-which is a direct tax- that can be avoided if the citizen buys insurance. But a direct tax has to be apportioned by the population i.e. it has to work like a flat fee. However, here people will pay different penalties depending on their location and income.

[SharonDoc]

10:12 PM on 05/08/2012

If it's black w a white stripe down its body and smells its a skunk, or a dem....it's definitely not a zebra.

[To Tall Jones]

11:20 AM on 05/08/2012

But its not a tax. The individual mandate forces individuals to buy a product from a private entity and penalizes them if they chose not to purchase it. Therefore this makes the individual mandate unconstitutional.

[wtf2009]

01:14 PM on 05/08/2012

James Madison did it. So no it's not unconstitutional.

[To Tall Jones]

01:20 PM on 05/08/2012

@wtf2009...Do you have the case study as to what Madison did exactly?

[SharonDoc]

10:18 PM on 05/08/2012

We know that, and so do the dems but many will try to spin, flap and twist it anyway unimaginable to "will it" or as Picard would say "make it so"!

[BlueEyedAngel]

11:39 PM on 05/07/2012

That's great! In an election year, we can all rest easy knowing that Obama lied to us when he said he would not increase taxes on the poor and middle class. After years of small increases in my health insurance, my "tax" just went up 20% for my next renewal period. What a coincidence!

[wtf2009]

01:15 PM on 05/08/2012

And yet you're not blaming the health insurance company that raised your rates....interesting....

[Michael Steaphens]

02:17 PM on 05/08/2012

Perhaps the insurance companies have to raise rates to pay for the new mandates...

[BlueEyedAngel]

08:43 PM on 05/08/2012

I am laying the blame squarely on the (un)Affordable Health Care Act, yes. I will elaborate on my statement. The first renewal cycle after it passed, a new series of regulations took effect that required changes in the policy I had since it didn't conform to the new law. I know this not just because of the letter from my provider, but because I have private insurance through a broker I've known for years who sells plans from multiple providers. The odd thing is...the new regs actually removed some preventative care (tests, etc.) from the policy options. I was forced to choose from several "compliant" plans (I didn't get a waiver like the unions). Historically, my rates have only increased a few dollars (less than $5) each year due to being older. However, this year I saw a 20% increase over last year, plus another reduction in covered items and copay increases. This new law was supposed to make health insurance more affordable, but instead was a gift from Obama to the Health Insurance industry. He and the Democrats that pushed (and didn't read) this law are full of hot air.

[SharonDoc]

10:24 PM on 05/08/2012

You are absolutley correct and I experienced the same situation along w several of my friends, family.
ON HP there is a huge far left fringe that will flat out deny deflect and attack those that purport the facts

[VikingQuest]

11:03 PM on 05/07/2012

Obama when selling this bill argued with reporters that the mandate was definitely not a tax . . .

Was Obama just that ignorant or was he lying?

[GHO]

11:13 PM on 05/07/2012

He is a politician, so of course he lied.

[To Tall Jones]

11:26 AM on 05/08/2012

@VikingQuest...Obama just signed the thing, he said what he was told to say LOL. If Congress would have called it a tax, or, used "tax" in the verbiage instead of "penalty" that would have had major political ramifications for the Democrats and Obama.

[JRandomPoster]

10:56 PM on 05/07/2012

No, it isn't, because corporations cannot collect a tax.

If we had single payer - or even PO/Medicare buy in, then they could use that argument.

But we didn't get that.

[focher]

10:55 PM on 05/07/2012

I suspect that the individual mandate was just a ruse to get the insurance industry to go along with the policy changes around pre-existing conditions, coverage of dependents up to the age of 26, and multitude of other regulations.

The whole joke is that the American healthcare system is going to collapse and only then will we see a single payer system (and that is NOT nationalized healthcare, for those who are intellectually challenged to understand the difference).

[wtf2009]

01:17 PM on 05/08/2012

What ruse. The insurance industry DEMANDED the mandate. The insurance industry claimed they could not make a profit insuring sick people and needed to insure healthy people in order to make money.

You got a beef - take it up with the insurance industry.

[VoteThemAllOut]

10:31 PM on 05/07/2012

If the administration wants to claim it is a tax it will validate that Obama lies. What will 'Glorious Leader' do now:
- drop this tactic and hope the Supreme Court doesn't repeal it, or
- push it in hopes of keeping it alive and have to admit that he lied with no possiblity of being able to deny he lied.

[Tuigim]

10:24 PM on 05/07/2012

The Easiest Justification For The Obamacare Mandate: It's A Tax
You call it "Obamacare" on Huffpo?
This isn't FOX!!!
The bill is stupid and immoral and his usual compromise instead of doing the right thing and providing health care as a top responsibility. End wars, make people better instead of killing them.
But it is NOT "Obamacare,"

[3dtrix]

10:17 PM on 05/07/2012

Insurance companies are now tax collectors?

I know they'd LOVE the authorization - but that's absurd on its face.

None of this has made a lick of sense from the get-go - the government has EVERY right to collect taxes for what IT pays for so let's just cut the BS and have a single-payer system.

Problem solved - BS eliminated...

[ohiomark]

10:16 PM on 05/07/2012

If it is a tax, then Obama lied when he said that he wouldn't raise taxes on anyone making $250,000 a year........errrrrrrr $200,000 a year.....errrrr $150,000 a year.....whatever.

The fact is that is was not sold to the American people as a tax and it won't get past the SCOTUS as one either.

[williamina]

12:36 AM on 05/08/2012

the oral arguments are over, colonel vermicelli didn't argue tax

[ohiomark]

07:58 AM on 05/08/2012

Actually, he did and some of the Justices had to correct him that it wasn't a tax.

[The Great Intellectual]

10:14 PM on 05/07/2012

So basically the Democrats in Congress and the President lied to us. The Republicans didn't,

I strictly remember the Republican's calling this a tax on Life and the Democrats and Obama said the Republican's are liars. Now Democrats are trying to call it a Tax. So they lied to the American people. Wouldn't be the first time the Democrats did this.

The Democrats have been lying about how the Economy Collapse. They blame Bush but will not name Policies. Most people with half a brain know the Housing Bubble collapsed the Economy and intelligent people know the Housing Bubble started in 1995 after Clinton revised the Community Reinvestment Act making Banks meet a quota on Low Income Loans.

[focher]

11:00 PM on 05/07/2012

Sorry, but read the Big Short. The housing bubble happened because of the deregulation of the financial system. Yes, that was passed by Democrats (and Republicans) and signed by Clinton. Banks could now also be investment firms, and they used that opportunity to start buying worthless tranches of home mortgages that were bundled into falsely rated AAA investments. This bogus meme about it being caused by banks being forced to meet a quota on low income home loans is right up there with teachers, police, and firefighters bankrupting states with their huge pensions and benefits. Banks were giving loans because they wanted more mortgages to resell ... and they didn't care at all about the quality of those mortgages.

[The Great Intellectual]

11:14 PM on 05/07/2012

You are so false. Banks don't make money on foreclosed homes. Banks are not in the Real Estate Business they are in the money business. A Bank who gives a loan to someone making $30k on a $200k property and that person forecloses and the housing collapse now that home is worth $100k where is the Bank making money??? They aren't.

The Banks were just fine giving safe loans to people with 20% down and buying a home less than 2.5 times their income. But the Government wasn't OK with that because how is a poor person going to save $20k to put down on a $100k home? They won't be able to.

Also they were forced into giving low income loans before Deregulation. The Banks pushed for Deregulation to get rid of these Toxic Assets. Clinton also in 1998 pressured Fannie and Freddie Mac to take on even more Risk. There are numerous articles if you check Google Archives from this time range talking about how this is Risky being Fannie and Freddie Mac are backed by the Tax Payers.

[GHO]

10:07 PM on 05/07/2012

It probably is the best argument, but you still have to convince the SCOTUS that it is indeed a tax.

Normally, taxes are paid directly to government at rates set by government for servics provided or contrrolled by government. This would be money paid to a 3rd party at rates set by that 3rd party for services provided or controlled by that 3rd party.

Not sure it fits.

[williamina]

12:39 AM on 05/08/2012

oral arguments are over. you can't call them on the phone or t w e e t them your bl og post. hope you did not buy a cheese tray

[Micheal Frisbie]

09:57 PM on 05/07/2012

it can't be a tax if you pay a premium to an insurance company.

[focher]

11:01 PM on 05/07/2012

That's not the tax. The tax kicks in if you don't carry insurance. And you pay that tax directly to the government.

[Micheal Frisbie]

11:16 PM on 05/07/2012

i understand, but the tax penalty is designed to make you buy an insurance policy instead of paying the tax to the government. i guess if it goes through, then we will just have to see which is cheaper, the insurance policy, or the tax... and to think, we could have just made everything simple like canada has, and have nationalized medical coverage.

[To Tall Jones]

11:32 AM on 05/08/2012

@focher...Wrong...A penalty kicks in if you don't buy a product from a private entity.

[edward60]

09:55 PM on 05/07/2012

Americas health care system cost more than any other country and rates 20th, single payor will be the outcome sooner or later.

[ohiomark]

10:17 PM on 05/07/2012

If I get sick, there is no other country I would rather be in.

[MaxHeadroom]

10:32 PM on 05/07/2012

Never traveled anywhere, have you?

It shows by your naive comment.

[focher]

11:02 PM on 05/07/2012

Ah yes, the "America has the best medical system in the world". Except it doesn't. Saying it repeatedly to a bunch of old people listening to a radio in 2012 isn't gonna make it true, either.