Obamacare's Last Stand: the Phony "Excise Tax"
In the face of all this crazy talk about Obamacare being beyond the scope of Congress's Constitutional powers, the Administration's response is:
The individual mandate is a tax (I know, we used to say it wasn't, but we were just kidding), because it imposes a penalty on those who fail to obtain health insurance.
Now it's true that the Constitution gives Congress discretion to impose taxes to achieve a variety of ends, but the tax has to fit into the limited categories of federal taxation. Over at NRO, law student Joel Alicea correctly shows that the Administration's attempt to label the Obamacare penalty as an "excise tax" is a perversion of the term, which the Founders used to describe taxes on commodities and licenses. They'd spin in their graves at the notion of an "excise tax" on economic non-activity.
If the Supreme Court buys the "excise" argument, then originalism is out the window and Congress's power to tax -- which, as John Marshall said, is also the power to destroy -- is unlimited.
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Comments :
May '10
Re: Obamacare's Last Stand: the Phony "Excise Tax"
Or a contract with a penalty clause!
Re: Obamacare's Last Stand: the Phony "Excise Tax"
So maybe "repeal" isn't the right strategy? Maybe "overturn" is. What are the chances of that, do you think, Adam? I mean, if the individual mandate isn't constitutional, then what would happen then?
May '10
Re: Obamacare's Last Stand: the Phony "Excise Tax"
I shudder to think of my tax bill if there were an inactivity tax.
Re: Obamacare's Last Stand: the Phony "Excise Tax"
If this were moot court, the chances would be excellent. In the real world, given SCOTUS's reluctance to strike down major legislation, and the unpredictability of Justice Kennedy, I'd give it even money. Some would say even that is optimistic.
The Court could strike down the mandate while upholding the rest of the legislation. But as a practical, I assume that Congress would have to revisit the whole thing. If the Republicans control at least one house of Congress, then we'd end up in stalemate, right?
Sep '10
Re: Obamacare's Last Stand: the Phony "Excise Tax"
I believe 2/3's of the US should get their horse and buggy on and just go "Amish"