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
