Womano-a-Mano*: The Faculty Lounge Fails

M2RB:  AC/DC, Live from the Palladium in NYC with Bon Scott at vocals

She's got style, that woman
Makes me smile, that woman
She's got spunk, that woman
Funk that woman

She's got speed, my babe
Got what I need, my babe
She's got the ability
To make a man outta me

But, most important of all
Let me tell ya
The lady's got balls
She's got balls

"But today, Chief Justice Roberts has done much to repair the enormous damage done to the Court’s reputation by Bush v. Gore and exacerbated by Citizens United. The Supreme Court's precedents clearly establish that the individual mandate, which doesn’t literally force anyone to purchase health insurance but simply adjusts the income-tax liability of those who don’t, can be sustained as an exercise of Congress's indisputably broad power to impose taxes. By faithfully applying those precedents—regardless of whatever personal distaste he may have had for the law he upheld—the chief justice helped restore Americans' confidence in the political neutrality of their highest court."

- Professor Laurence Tribe, Harvard Law School, Chief Justice John Roberts’s Ruling Restores Faith in the Court’s Neutrality, The Daily Beast, 28 June 2012

Oh, puhlease, Larry, you big, stinking fraud:

1.  YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the mandate was constitutional pursuant to the Commerce Clause. 

I've said for more than 3 years that the mandate was NOT constitutional under the Commerce Clause.

Sophie: 1

You:  0

"Smart People/Smart Power":  0

2.  YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the mandate was constitutional pursuant to the Necessary & Proper Clause.

I've said for more than 3 years that the mandate was NOT constitutional under the N&P Clause.

Sophie: 2

You:  0

"Smart People/Smart Power":  0

3.  YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the Federal government could regulate INactivity.

I've said for more than 2.5 years that the Federal government did not have plenary powers (see McCulloch v. Maryland), such regulation was unprecedented and unsupported by any precedent, and violated the test established by the Court in Lopez.

"BUT WE HAVE NEVER PERMITTED CONGRESS TO ANTICIPATE THAT ACTIVITY ITSELF IN ORDER TO REGULATE INDIVIDUALS NOT CURRENTLY ENGAGED IN COMMERCE. Each one of our cases, including those cited by JUSTICE GINSBURG, post, at 20–21, involved PREEXISTING ECONOMIC ACTIVITY. See, e.g., Wickard, 317 U. S., at 127–129 (producing wheat); Raich, supra, at 25 (growing marijuana)."

- Roberts, CJ

Sophie: 3

You:  0

"Smart People/Smart Power":  0

4.  YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the Socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the Federal government could regulate healthcare and mandate that individual purchase health insurance because it was a "unique market" because "all people will use healthcare at some point and the government has the authority to regulate how they pay for it."

I've said for more than 2.5 years that the Federal government could NOT regulate healthcare and mandate individuals enter into third-party contracts for the provision/procurement of government-approved goods or services as a condition of good citizenship and that the healthcare market "uniqueness" because "everyone would use healthcare at some point in their lives" was irrelevant.  

 

"THE PROPOSITION THAT CONGRESS MAY DICTATE THE CONDUCT OF AN INDIVIDUAL TODAY BECAUSE OF PROPHESIED FUTURE ACTIVITY FINDS NO SUPPORT IN OUR PRECEDENT. We have said that Congress can anticipate the effects on commerce of an economic ACTIVITY.

The Commerce Clause is NOT a general license to regulate an individual from cradle to grave, simply because he will PREDICTABLY ENGAGE IN PARTICULAR TRANSACTIONS.”

- Roberts, CJ

Sophie: 4

You:  0

"Smart People/Smart Power":  0

5.  YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the Federal government could compel them to engage in commercial activity for the express purpose of being able to regulate them, not just their activity or inactivity.

I've said for more than 3 years that the Federal government could NOT compel individuals to enter into the commerce so as to regulate them, their activity or inactivity.  I continuously reminded you that the precedent stood only for the position that the government could regulate certain activities of individuals, not the individuals themselves.

“The Framers . . .  gave Congress the POWER TO REGULATE COMMERCE, NOT TO COMPEL IT ... [Otherwise you] undermine the principle that THE FEDERAL GOVERNMENT IS A GOVERNMENT OF LIMITED AND ENUMERATED POWERS.

THE INDIVIDUAL MANDATE'S REGULATION OF THE UNINSURED AS A CLASS IS, IN FACT, PARTICULARLY DIVORCED FROM ANY LINK TO EXISTING COMMERCIAL ACTIVITY.

[A]llowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation and—under the Government's theory—empower Congress to make those decisions for him.”

- Roberts, CJ

Sophie: 5

You: 0 

"Smart People/Smart Power":  0 

6.  YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the Federal government had the power to compel individuals to act.

Again, I warned you that only the states had plenary (police) powers over individuals.

 

“ANY POLICE POWER TO REGULATE INDIVIDUALS AS SUCH, AS OPPOSED TO THEIR ACTIVITIES, REMAINS VESTED IN THE STATES."

- Roberts, CJ

Sophie: 6

You:  0 

"Smart People/Smart Power":  0  

7.  YOU wrote on 11 February 2011 in the New York Times:

“Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multi-trillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?”

Beginning in March 2009 and continuing through today, I wrote arguments such as this:

“There is not a one, single example in the history of the United States to which any jurist in this country can point where the Federal government mandated, under the Commerce Clause, that an individual enter into a third-party contract with a private entity for the provision/procurement of a government-approved good or service as a condition of good citizenship.  Not. One. Single. One.

No one denies the right of the Federal government to regulate the insurance industry.  Indeed, the Supreme Court has already held that the Federal government has the power to regulate the insurance industry under the Commerce Clause.  It did so in United States v South-Eastern Underwriters Association, 322 U.S. 533 (1944).  As any learned jurist knows or a marginally capable user of Google can discover, the reason that the Federal government has not been regulating the insurance industry in the ensuing decades is due to the party of President Barack Obama, the party of the little guy.

Following the Court’s ruling in South-Eastern Underwriters, Democrats in Congress and President Truman passed and signed into law the McCarran–Ferguson Act of 1945, which exempted the business of insurance from most Federal regulation, including Federal anti-trust laws to a large degree. 

If you’ve ever wondered why there are so few health insurance companies in your state or why you can’t purchase insurance across statelines, you can thank a Democrat.   The ‘Party of the Workingman’ loved creating oligopolies for their buddies back home.  So what if Joe down at the petrol station has to pay a few more bucks a week and gets less service?  Where’s he going to go?  He’s a captive customer…thanks to our pardners in Washington.

All of this, however, has nothing to do with the the ability of the Federal government to mandate individuals purchase health insurance.  No one denies that the Federal government can regulate the transportation of gasoline by BP; yet, has one person ever argued that, pursuant to the Commerce Clause, the government can compel Americans to enter the petrol market and purchase BP products?  What about the people, who do not drive?  

Further, the idea that the Commerce Clause is some sort of catch-all that can be used to regulate anything that tangentially affects interstate commerce is a flat-out falsehood and makes those, who argue it look pathetically ignorant.

Anyone familiar with Federalism is aware that the Federal government cannot force states to lower speed limits, raise driving ages, lower the legal blood alcohol level, or increase the drinking age.  This is true even though a drunk teenager driver speeding on an elevated portion of the interstate, who crashes into a petrol truck causing a fire and structural damage to the infrastructure, which results in the closure of that stretch of the interstate for months, will have a direct and adverse impact on interstate commerce.  As the Court ruled in South Dakota v. Dole, 483 U.S. 203 (1987), all the Federal government can do is to "attach reasonable conditions to funds disbursed to the states."  Federal mandates, unreasonable conditions, and/or the withholding of otherwise due Federal funds would violate the Tenth Amendment.

So, let's stop playing games and trying to be cute-by-half.  The Bullshit Stops Here!  To quote Howie Dean, "Yeeeeeeeearrrrrrhhhhh!"

Secondly, I can't move on to the next point without rubbing your face in, er, addressing your statement "the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut."  Sorry, but the pomposity of your class, the scorn you have heaped upon us over the last few years, the spiking of the football, the gloating, the Stalinesque attempt to airbrush history** leave me with no alternative but to call you and your comrades out on your buffoonery.

• As I wrote above, your "open and shut case" was anything but.  You lost on the Commerce Clause and the whole "the economic choices of individuals within states that have significant effects on interstate markets" argument. 

•  A 5-4 decision is anything but an "open and shut case."

• A close examination of the dissent authored by Justice Kennedy, Scalia, Thomas and Alito reveals an interesting detail.  Throughout the scathing opinion, Justice Kennedy refers to Justice Ginsburg's opinion as "THE DISSENT."   In the end, Justice Ginsburg's opinion was a concurrence with Chief Justice Roberts wherein she agreed with him to uphold most of the law, but disagreed with him on some of the legal reasoning.  For example, she ridiculed his assertion that “Under the Government’s theory, Congress could address [America’s] diet problem by ordering everyone to buy vegetables.”

• Justice Ginsburg's dissent quotes Chief Justice Roberts:

“The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to ‘compe[l] individuals to become active in commerce by purchasing a product.’”

Obviously, Roberts and Ginsburg disagree, which makes it hard for a case to be "open and shut."  One would expect two experience justices to clearly recognise an "open and shut" case.  I doubt Roberts and Ginsburg would disagree for a nanosecond that the Constitution protects the rights of the faithful to pray in their homes or atheists to assert that there is no god in the privacy of their gardens.  Those are "open and shut cases."   The Federal government mandating that an individual purchase a product from a private corporation when there isn't a single example in the history of the country, Commerce Clause precedent does not support regulation of INactivity whether economic in nature or not, and the requirements of the Lopez test were not met hardly qualify as an "open and shut case."

•  Keep this in your mind today, tomorrow, and forever:

Our arguments relative to the Commerce and Necessary & Proper Clauses prevailed.

Your arguments relative to the Commerce and Necessary & Proper Clauses failed & we don't want to hear them again.

The sole reason that Obamacare survived was because Shrub's Warren, Chief Justice Roberts, rewrote the laughably, ill-written legislation and pulled an tax rabbit out of his hat.

Not one judge ruled that the mandate was a "tax" until Shrub's Warren and that includes ALL of the Federal judges, who upheld Obamacare at the district and appellate levels.

The Solicitor General did not argue that the mandate was a "tax" in his opening brief before the Court.

The first arguments made by the Solicitor General that the mandate could be construed as a "tax" appeared in his Reply Brief for Petitioners Regarding the Minimum Coverage Provision.  The entire argument consisted of 21 lines.

The next and last time Donald J Verrelli, Solicitor General of the United States of America, spoke in any way, shape or form that the mandate might be a "tax" was during oral arguments.  His entire argument consisted of a little more than 50 words.

So, make no mistake, all of you geniuses -- the "best and the brightest" -- saw your prognostications relative to the Commerce and Necessary & Proper Clauses fail on the 28 of June, 2012.

For whatever reason, be it a desire to remain on the Washington cocktail circuit, the Chicago thuggishness of and threats made by President Obama and his henchmen, the Chief's epilepsy medicine, an Obamacrush, some misguided idea -- no doubt planted by you, the rabid media, and disgraceful partisans like Senator Patrick Leahy, the Chairman of the Senate Judiciary Committe -- that a 5-4 decision overturning Obamacare would be "an outrage, worthy of impeachment, a constitutional crisis, blah, blah, blah," and the act of a "right-wing, radical, conservative, activist, corporatist, partisan, dangerous, and illegitimate Court," but a 5-4 decision upholding a deeply unpopular and unprecedented law would be the epitome of a tempered, reasoned, impartial, and legitimate Court, Chief Justice John Roberts saved Obamacare and did so on specious basis.  Well, perhaps, to effeminate toffs, who believe they can judge a man's abilities not on his character, but by the crease of his trousers, that kind of cowardice flies, but not with this woman.

Sophie: 7

You:  0

"Smart People/Smart Power":  0   

8.   YOU, on 11 February 2011, wrote, "[e]ven if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out."

Obama, the Democrats, the Progs, the Ivy faculty lounges, the socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the mandate was not a tax.

For more than 2 years, I, too, have argued that the mandate was not a tax.    I've not based my opinion on "feelings," political expediency, or the spaghetti theory of legal argument (Throw everything at the justices and see what sticks...Monday:  It's a penalty.  Tuesday:  It's a tax.)  Rather, because I live in Realville, which is outside of the liberal echo chamber where you and your friends sit in drum circle jerks massaging each other's egos and laughing hysterically at our "stupidity, ignorance, redneckness, lowbrow ideology, blah, blah, blah" arguments and intellect.

To start, I wish to correct an oft-repeated mistake made by the Chief Justice and the rest of you.  When we talk about the mandate, there appears to be some confusion.

• First, there is the “mandate” that requires individuals to engage in commercial activity or, as I have said above, a Federal requirement that individuals enter into third-party contracts with private insurance corporations for the provision/procurement of government-approved goods or services as a condition of good citizenship

• Second, there is the “penalty” that is assessed against those, who fail to comply with the mandate above-described.  The penalty is paid to the United States Treasury.

According to Black’s Law Dictionary, a tax is, in a general sense, any contribution imposed by government upon individuals, for the use and service of the state, whether under the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name.   It is imposed not as a punitive measure, but for revenue-generating purposes.

It is critical that we fully absorb the definition of a tax because, evidently, too many Americans no longer know what it is.  So, let me say it slowly, clearly, and at a level that even a Harvard law professor and the most renowned constitutional scholar in the country can understand: 

THIS IS A TAX:

• THE GOVERNMENT ASSESSES ME AN AMOUNT OF MONEY THAT IS DUE AND OWING.

• I WRITE A CHEQUE TO THE UNITED STATES TREASURY, FOR EXAMPLE.

• THE CHEQUE IS DEPOSITED INTO THE TREASURY’S ACCOUNT AND MY ACCOUNT IS DEBITED IN THE SAME AMOUNT.

• THE MONEY THAT I REMITTED, I.E., THE TAX, WILL BE “FOR THE USE AND SERVICE” OF THE GOVERNMENT.

As a modern, independent American woman, I pride myself on being knowledgeable, savvy, and pro-choice, which is more than I can say for YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the Socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims.

You people are only “pro-choice” when it comes to uteri, rectums, and pot.  For everything else, there’s an app(aratchik in Washington) for that!

THIS, ON THE OTHER HAND, IS NOT A TAX:

• I APPLY FOR A HEALTH INSURANCE POLICY WITH ABC HEALTH INSURANCE CORPORATION.

•  ABC HEALTH INSURANCE CORPORATION QUOTES ME A PRICE FOR A POLICY.

• BECAUSE I AM AN EXTREMELY WELL-EDUCATED, FINANCIALLY-SOPHISTICATED, URBANE, GROWN WOMAN -- UNLIKE PRESIDENT OBAMA’S “COMPOSITE” SYMBOL OF AMERICAN WOMANHOOD, JULIA -- I AM PERFECTLY CAPABLE OF NEGOTIATING WITH ABC HEALTH INSURANCE CORPORATION, CHOOSING THE POLICY THAT BEST SERVES BOTH MY HEALTH AND FINANCIAL NEEDS, AND ENTERING INTO A CONTRACTUAL RELATIONSHIP WITH A CAPITALIST COMPANY, WHOSE QUEST FOR PROFITS AND MY BUSINESS WILL INSURE THAT I AM TREATED AS I DEMAND OR THESE LOUBOUTINS WILL HAVE BEEN MADE FOR WALKING.

•  I WRITE A CHEQUE PAYABLE TO ABC HEALTH INSURANCE CORPORATION TO PAY THE PREMIUM FOR MY HEALTH INSURANCE POLICY.

• ABC HEALTH INSURANCE CORPORATION DEPOSITS THE CHEQUE INTO ITS CORPORATE CHEQUING ACCOUNT AND MY BANK ACCOUNT IS DEBITED IN THE SAME AMOUNT.

• UNLIKE A TAX, ABC HEALTH INSURANCE CORPORATION USES THE FUNDS THAT I SENT FOR ITS OWN PURPOSES, INCLUDING REDECORATING THE CEO’s CORPORATE JET, AND I HAVE THE HEALTH INSURANCE THAT I WANT.  WE ARE BOTH HAPPY.

Next, there are four types of taxes permitted by the Constitution: 

Capitation:  A direct tax on a person or property, but must be apportioned amongst the states under the US Constitution.

Excise:  A tax triggered by a "taxable event" like a death or sale.

Income:  A tax on income.

Impost:  A duty or tariff on imports and exports imposed by the government.

In National Federation of Independent Business v Sebelius, the Court held that a "penalty" directly imposed upon individuals for failure to possess health insurance, though a tax for constitutional purposes, is not a direct tax.  The Court reasoned that the tax is not a capitation because not everyone will be required to pay it nor is it a tax on property, rather "it is triggered by specific circumstances."

It's not a direct tax per the Court nor an excise tax (Where is the taxable event, not special circumstance?), income tax (It is due should an individual fail to procure insurance whether he has income or not, i.e., a person living off of his assets is still subject to this "tax," or tariff (Really?  Do you really want to argue that one?).  So, what is it?

The Court, in City of New York v. Feiring, 313 U.S. 283 (1941), established a test to be utilised in making the determination of whether an assessment is a tax or a penalty has been described as a four-part test incorporating the following criteria:

1.       An involuntary pecuniary burden, regardless of name, laid upon individuals or property; and,

    

2.   Imposed by, or under authority of the legislature; and,

3.   For public purposes, including the purposes of defraying expenses of government or undertakings authorised by it; and,

4.   Under the police or taxing power of the state.

As the Court noted in United States v. La Franca, 282 U.S. 568, 571 (1931), in a somewhat different context, “a tax is an enforced contribution to provide for the support of the government; a penalty…is an exaction imposed by statute imposed for an unlawful act.”    Further, the Court explained as recently as 1996 in United States v. Reorganized CF&I Fabricators of Utah, Inc., et al., 518 U.S. 213 (1996) that “a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the government.” In contrast, the Court went on to say that, “if the concept of penalty means anything, it means punishment for an unlawful act or omission, and a punishment for an unlawful omission.”

There has been a clear line drawn in precedent between a tax and a penalty.  In fact, prior to National Federation of Independent Business, the Court could not have been more clear in enunciating the difference between a tax and a penalty. It would be very difficult to arrive at a better example of a penalty than the fine imposed on Americans for failing to purchase mandated and government-approved health insurance.

The penalty for not having insurance was, originally, a "tax."  Pointedly, the Democrats revised the language and created a "penalty" -- by name -- instead.  Roberts took it upon himself, using his legal divining rod, to "read into the law" what he believes the Democrats really had in mind and rewrote a law -- and a tax law at that.

Again, you wrote "...the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation..." 

As the dissenting opinion reminded (and, according to reports, Chief Justice Roberts may very well have written first):

"[The government argues that a] penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so."

No one denies that the "tax" is only imposed upon those, who fail to comply with the mandate to carry health insurance.  It is punitive in nature.  It is a penalty.  It is a punishment for an unlawful act.  Taxes are not assessed as punishment.  As the dissenting justices wrote:

We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power – even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).

So the question is, quite simply, whether the exaction here is imposed for violation of the law.  It unquestionably is.  As the dissenters reminded us, Congress explicitly wrote:

"The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.” §5000A(b) (emphasis added).

And several of Congress’ legislative “findings” with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. §18091(2)(A) (“The requirement regulates activity…”);§18091(2)(C) (“The requirement… will add millions of new consumers to the health insurance market…”); §18091(2)(D) (“The requirement achieves near-universal coverage”); §18091(2)(H) (“The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market”); §18091(3) (“[T]he Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation”).

If Congress' own words were not enough, the very placement of the mandate and penalty tell us that it was not intended to be a tax.  According to Bouvier's Law Dictionary, a tax is a pecuniary burden imposed for the support of the government.  The enforced proportional contributions of persons and property levied by the authority of the state for the support of the government and for all public needs.  If the fine, for lack of a better word to differentiate between the "now-you-see-a-tax" and "now-you-don't-'cuz-it's-a-penalty," was actually a tax, it would be levied as a revenue-raiser in the legislation.  It is not.  In addition to expressly being assessed only in the event that an individual fails to comply with the  minimum-coverage provision requirement, the location of the the fine tells us much about the intention of Congress and whether they intended it to be a "tax" or a "penalty."

Returning to the dissent once again:

"The mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found — in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax."

Finally, the Court has previously ruled that while the Federal government can tax when he cannot regulate, it cannot so tax for the purpose of regulating.  In Bailey vs. Drexel Furniture, 259 U.S. 20 (1922), Chief Justice William Howard Taft explained:

“To give such magic to the word ‘tax’ would be to break down all constitutional limitation of the powers of Congress.”

Sophie: 7 ... although precedent was on my side; the "tax" doesn't meet the Feiring test; Obama, et al, agreed with me; no judge, any level below, including those that upheld the law, bought the tax argument; Congress, specifically, rewrote the statute to read "penalty;" the administration didn't brief the tax issue, it merely responded to respondents' brief; in oral arguments, the Solicitor General argued it was a penalty before he spent slightly more than 50 words arguing that it was tax the next day; Chief Justice Roberts rewrote the statute -- after using his legal divining rod -- to determine that, even though Congress, specifically, changed the statute from designating the fine a "tax" to the fine being a "penalty," it really, really, really meant for the fine to be a "tax." 

You:  1

"Smart People/Smart Power":  0

9.   YOU, Obama, the Democrats, the Progs, the Ivy faculty lounges, the socialist talking heads on MSNBC, the community organisers, race-baiters, and the rest of the members of the Permanent Grievance Committee and National Carnival of Eternal Victims have said for more than 2 years that the Federal government had the power to compel the states to expand Medicaid, create exchanges, commandeer state personnel to run such exchanges, raise taxes, etc., under both the Commerce Clause and the Necessary & Proper Clause.

For nearly 3 years, I've argued that the Federal government could not force the states to expand Medicaid, create exchanges, commandeer state personnel to run such exchanges, raise taxes, etc., under both the Commerce Clause and the Necessary & Proper Clause.

The Commerce Clause has been coupled with the Necessary and Proper Clause to provide a constitutional basis for a wide variety of Federal laws.  "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." - Article I, Section 8, Clause 18.  Just because Congress has the power to enact measures that are necessary and proper to the execution of its power to regulate commerce – in the case of Obamacare, health care markets – that does not mean that Congress has the power to do anything and everything that, on the margin, facilitates or makes more efficient other federally enacted regulatory measures.

In McCulloch v. Maryland, 17 U.S. 316 (1819), the Court held that, while the Constitution did not explicitly give permission to create a federal bank, it had the implied power to do so under the Necessary and Proper Clause in order to realise or fulfill its express taxing and spending powers. This fundamental case established the following two principles:

1. The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government.

2. State action may not impede valid constitutional exercises of power by the Federal government.

"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional," C.J. John Marshall, writing for the majority in McCulloch.

McCulloch does not stand for the proposition that Congress has plenary power over citizens and the several states nor has its powers been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power.

 

"Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." McCulloch, supra.

In Lambert v. Yellowley, 272 U.S. 581 (1926, the Court upheld a law restricting medicinal use of alcohol as a necessary and proper exercise of power under the Eighteenth Amendment establishing Prohibition in the United States.  The Federal government was empowered to act against the possession or consumption of alcohol.  The law was both necessary and proper to carry out its powers authorised under the Eighteenth Amendment.  On the other hand, in New York v. United States, 505 U.S. 144 (1992), the Court recognised that it was proper for Congress to address the problem of what to do with radioactive waste and that this national issue was complicated by the political reluctance of the states to deal with the problem individually; however, it ruled that the "take title" incentive of the Low-Level Radioactive Waste Policy Amendments Act of 1985 was an attempt to "commandeer" the state governments by directly compelling them to participate in the federal regulatory programme. THE FEDERAL GOVERNMENT "CROSSED THE LINE DISTINGUISHING ENCOURAGEMENT FROM COERCION." The distinction was that, with respect to the "take title" provision, the States had to choose between conforming to federal regulations or taking title to the waste. Since Congress cannot directly force States to legislate according to their scheme, and since Congress likewise cannot force States to take title to radioactive waste, Justice O'Connor, writing for the majority, reasoned that Congress cannot force States to choose between the two. Such coercion would be counter to the federalist structure of government, in which a "core of state sovereignty" is enshrined in the Tenth Amendment.

As Chief Justice Roberts wrote, and I noted above, the Federal government is one of limited and enumerate powers.  While the states have plenary police powers over the individual, the Federal government can only regulate his activities and here, again, I disagree with the Court that the failure to purchase insurance is an activity just as the failure to sleep on the right side of the bed is an activity.  Nevertheless, that is not the issue here and we are bound  -- for now -- by the Court's ruling.  Here, our attention is on whether the Federal government could force the states to expand Medicaid.  The obvious answer was, of course, "No" ... and, it should not have come as a surprise.
  

On many occasions, I've noted that the Federal government cannot force states to lower the speed limit, raise the drinking and driving age, or lower the blood-alcohol level that triggers driving under the influence.  This is true even though a drunk teenager speeding on an elevated portion of the Federal interstate, who crashes into the back of a semi-tractor-trailer carrying flammable and hazardous waste, triggering an explosion, and causing structural damage that results in a months' long closure of that section of the interstate highway system obviously impacts interstate commerce.  The Court has held that Congress may attach reasonable conditions to funds disbursed to the states without running afoul of the Tenth Amendment.  In South Dakota v. Dole, 483 U.S. 203 (1987), the Court held that it was constitutional and not unreasonable for the Federal government to withhold 5% of the highway funds to which South Dakota was entitled, as long as it refused to raise its drinking age to conform with federal policy.

As Chief Justice Roberts wrote in his opinion:

"[In South Dakota v. Dole], [w]e found that the inducement was not impermissibly coercive, because Congress was offering only “relatively mild encouragement to the States…” We observed that “all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5%” ofher highway funds. In fact, the federal funds at stake constituted less than half of one percent of South Dakota’s budget at the time. In consequence, “we conclude[d] that [the] encouragement to state action [was] a valid use of the spending power.” . Whether to accept the drinking age change “remain[ed] the prerogative of the States not merely in theory but in fact.”

In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—IT IS A GUN TO THE HEAD. Section 1396c of the Medicaid Act provides that if a State’s Medicaid plan does not comply with the Act’s requirements, the Secretary of Health and Human Services may declare that “further payments will not be made to the State.” A State that opts out of the Affordable Care Act’s expansion in health care coverage thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it… Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs."

States can charge fees for marriage licences, mandate attendance at school for school-age students, compel vaccinations, refuse to issue drivers' licences to some and not others, set drinking, driving, and majority ages, require drivers to purchase liability insurance, golfers to purchase liability insurance, etc.  All of these are within their police powers.  Powers that the Federal government do NOT have.

Sophie: 8

You:  1

"Smart People/Smart Power":  0

Now, don't you have a book or law review article to plagiarise or something?

+++++++++++++++++++++++++++++++++++++++++++++++

* Yes, I know "mano" means "hand."

**  To understand from whence the title of the blog came,  you must first know two quotes of the legendary, irascible, indefatigable, and a towering figure in British history, Sir Winston Churchill.   They are :

"Russia:  A country with an unpredictable past."

"History will be kind to me for I intend to write it."

If Churchill were alive today, he would say that Progressives have a predictable history because they write it, but an unpredictable past because, once you actually go back and study what really happened, things aren't as you've been told.  For example, Progressives will tell you that Fascism is a right-wing phenomenon and that they have always been its mortal enemy.  Au contraire, mon cher.  Upon closer examination, their "predictable history" gives way to their "unpredictable past."

Here are some of the examples of how Stalin "airbrushed" his enemies out of Soviet history after he iced them.


 

LOL!   I'm sure that there are more than a few Progs that would love that power.  Don't worry, I'd like it, too.  There are many that I would like to make disappear.  If only their hot air were a greenhouse gas, we could tax or ban them out of existence.  Fortunately, Obamacare will ration many of them out of existence...just as my luvey NHS does.

She's Got Balls - AC/DC

She's got style, that woman
Makes me smile, that woman
She's got spunk, that woman
Funk that woman

She's got speed, my babe
Got what I need, my babe
She's got the ability
To make a man outta me

But, most important of all
Let me tell ya
The lady's got balls
She's got balls

She's got soul, my lady
Likes to crawl, my lady
All around the floor on her hands and knees
Because she likes to please me

But, most important of all
Let me tell ya
The lady's got balls
She's got balls

And she's got taste, my lady
Pace, my lady
Makes my heart race
With her pretty face

She's got balls, my lady
Likes to crawl, my lady
On her hands and knees all around the floor
No one has to tell her what a fella is for

But, most important of all
Let me tell ya
The lady's got balls
She's got balls