SCOTUS didn't invent or discover the Tax argument

[cthulu2016]

The government had always made the tax argument "in the alternative."

Essentially, "We think this is proper under the Commerce Clause, but even if it isn't it is still proper under Congresses power to levy taxes."

So much of the coverage today is kind of weird. It is made to sound as if SCOTUS found loophole or something... some back-room expedient the court came up with independently.

But it was always part of the government's argument, and always a question before the court.

[Swede Atlanta]

1. Correct.......

In fact the Court is not to consider facts or arguments presented by the parties before them. We know the Court does bring in extraneous information to support their legal conclusions but is usually very careful not to do the job of the parties for them.

So the fact Roberts couldn't agree on a Commerce Clause justification, he moved to the next argument made by the government, "the necessary clause". He dismissed that but finally came to agree this was a proper exercise as a tax, the 3rd constitutional basis presented by the government.

So this wasn't trickery or "back door politics", etc. It was proper legal analysis using arguments presented by the government in defense of the bill.

[HereSince1628]

2. It seems a strange tax...but in a nation run by corporations

paying a tax directly to corporations might be seen as a step toward transparency.

At least this ruling does nothing to make less certain the certainty of death and taxes.

[Shrek]

3. The tax is paid to the federal government

Not a corporation.

[cthulu2016]

4. The "tax" is the penalty for not buying insurance

If there was no penalty for not buying private insurance it wouldn't be a mandate...just advice.

But the court has to ask, "Or else what?" If you do not get insurance then there is some sort of penalty, but the penalty is just money. Since it is just money (as opposed to going to jail or something) then the penalty for not getting insurance can be framed just as easily as an "uninsured tax" from which a person is exempt if they have private insurance.

In my state you have to have auto insurance or you have to pay the state an uninsured motorist fee. (Around $400 I think) If that fee were renamed a tax from which people with insurance are exempt, or a tax on being uninsured, everything works exactly the same way... just a different label.

[HereSince1628]

5. still seems strange ... penalty = tax

Penalties for failing to comply with regulations and laws aren't called taxes they are called fines.

When a thing can't be called by it's actual name it's strange. My memory goes back to the 1950's and in that stretch of time I can't think of an instance when not being able to call something by it's real name has been an indicator that things are 'jes fine.'

I have no doubt that the mandate was a necessity for this approach to healthcare funding. One way or another, a very large pool of money must be created to pay for the expanded care. Building that pool from money now seized from the public as profit is politically impossible.

I think all the legislators who voted for ACA, and Obama who signed it, feel vindicated that they hadn't done something unconstitutional.

I have no doubt that Romney and the republicans expected at least a partial striking of the law, so it's also something of a victory in the presidential campaign.

Still...for my old brain the semantics seem strange and I wonder what the implications of such a parsing will become.