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July 8, 2012, 05:36 PM | #1 | |||
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The Decision in NFIB v. Sebelius
What This Thread Is Not This thread is not about President Obama's Health Care Mandates. It is not about Health Care. It is not about Medicaid. It is not about Health Insurance. It is not about the state of health care in the US vs the world. Those topics are not now and never were valid topics for discussion. What This Thread Is This thread is about the decision in NFIB v. Sebelius as it relates to the Enumerated Powers of Congress and how this decision may affect our Civil Rights, going forward. Should you decide to enter into this discussion, think well and hard before you hit the "Submit Reply" button. Stray from the topic, and your post will be deleted without warning. Depending upon how far off topic your post is, you may very well lose your privileges at TFL. We have become very lax, of late, in enforcing the rules of discussion in the Law & Civil Rights Forum at TFL. I expect everyone to have read the Read Me First! sticky. Those rules will be enforced. To begin.... The decision itself is convoluted. The dissenting opinion was written by CJ Roberts. It was to have been the majority opinion. The Concurring opinion was written by Ginsberg and was originally the dissenting opinion. CJ Roberts, for whatever reasons, wrote a separate opinion, in which he held 4 major rulings on the Act. His opinion is the controlling opinion and is the opinion, rightly or wrongly, that will move forward. This can be seen in how the decision has been joined by the other Justices of the Court. From the majority opinion: From the concurring opinion: From the dissenting opinion: It is of note, that the dissent was not signed by the minority Justices. That is because apart from a few minor changes, none of them authored the opinion. Chief Justice Roberts wrote this (it is his style of writing, and no authority has said different) as the initial majority opinion, before he changed his mind and wrote a separate majority opinion. Let's look at what this decision did: Each and every point above affects now or will affect our civil rights, including our gun rights. The legal ramifications alone are immense for or against Federalism. The above have been my thoughts of this decision from my second reading of the decision. This has been confirmed, by the academic discussion that the SCOTUS Blog hosted in the days following the decision: Sebelius Post-decision Symposium, comprising short summaries by liberal, conservative and libertarian Professors of Law. Many (most?) of them, the leading scholars of todays constitutional interpretation. It is a must read on what the NFIB v. Sebelius decision did and/or did not do. Notes on terms used, thus far: CJ = Chief Justice |
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July 8, 2012, 07:44 PM | #2 | |
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Several aspects of the decision echo the Rehnquist Court. In some ways, this is a big victory for Federalism in general.
Kopel's analysis points out that, Quote:
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July 8, 2012, 09:07 PM | #3 |
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One thing I disagreed with was the courts ability to change the wording that the lawmakers chose. If the law said a "tax" then I would be more in agreement with the opinion vs. the SCOTUS deciding to make it into a tax despite it not being billed as such. When the POTUS pushes that this is absolutely not a tax, the SCOTUS should not be running interference for ignorant lawmakers.
At what point could the SCOTUS be limited in doing this? |
July 8, 2012, 09:10 PM | #4 |
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While Roberts did walk the Constitutional Law tightrope, the tax question takes center stage for me. What are the implications of Congress being able to penalize/tax people's refusals to buy a certain type of good or service?
I am glad Roberts kept the Commerce Clause from expanding further, but am concerned that he allowed the taxation power to replace it as the vehicle of choice for expanding government power. Where are the limits? As an aside, what happens when the Executive and Legislative branch deny that a law is a tax, after the SCOTUS ruled that it can only stand as a tax? It is not like the SCOTUS will rehear the case based on a press release, but it doesn't make sense for the drafters of a law to claim the only reason the law can be upheld is not what they wrote. Last edited by raimius; July 8, 2012 at 09:15 PM. |
July 8, 2012, 09:52 PM | #5 | |
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Quote:
"Pay more tax if you don't buy X" "Pay more tax and it gets offset with a tax credit if you buy X"
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July 8, 2012, 10:06 PM | #6 |
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But according to the COTUS, the healthcare bill which is now allowed as a tax or penalty did not originate in the right "house"... Since it is a revenue bill according tot he SCOTUS, it is illegitimate...
Started and voted in the wrong house it is not a bill at all... So why are not more scholarly than me bringing this to the limelight? Sorry but if I try to establish things from my bathroom and wifey refuses to accept... I have to start the new rule from the dining room table!!! She insists on "proper channels" as we should... Brent |
July 8, 2012, 10:17 PM | #7 |
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Where the bill originated was not an issue in this particular case.
As noted by CJ Roberts, this can not be a penalty, as no law has been broken. Failure to engage in receiving insurance had no criminal charge. In the rather convoluted (and torturous) logic used, since it was not a penalty, it must be a tax. |
July 9, 2012, 08:43 AM | #8 | ||
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Al, I am not writing to give you a rash, but I think some clarification is in order given the warning with which you opened this thread.
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Thanks.
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July 9, 2012, 09:26 AM | #9 |
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Assuming that the Hughes Amendment is overturned or legislatively negated in the future, the notion that a $200 transfer tax for NFA weapons is unconstitutional has just taken a serious hit. Originally designed to be "confiscatory" ($200 was a small fortune in the Depression) it now restricts NFA weapons to the merely well to do.
The greater implications are more ominous: Suppose the '34 NFA was expanded to include semi-auto "assault weapons" of whatever description, and/or handguns (originally included in the NFA but withdrawn for political reasons). At what point does the Govt's authority to tax infringe on the 2nd Amendment's right to keep and bear arms? We already have lawsuits filed against NY's excessive registration fees. Will the Court uphold those fees as inherent in the Govt's right to tax? If so, why not a $200 tax on every firearm? Or a $500 tax? Or a $5,000 tax? At some point, the Court will certainly step in to say "Enough!" This precedent will facilitate them doing it later rather than sooner.
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July 9, 2012, 09:54 AM | #10 | |
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Quote:
What may be discussed are the legal ramifications for Federalism and civil rights, including gun rights, of the Court's rulings on the Commerce Clause, the Necessary and Proper Clause, State Sovereignty and the power to Tax. If you don't clearly understand that distinction, don't bother to post in this thread.
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July 9, 2012, 10:05 AM | #11 | |
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Quote:
Frank, the Court's ruling on the commerce clause applies to the mandate and penalty/tax enforcing it. Do you now see how that is not perfectly clear? If it were perfectly clear, I doubt that tyme would have discussed it above. I didn't ask the question to be offensive, but to clarify. Your explanation contains the same ambiguity. In the prior thread, it was I who noted that discussing the decision didn't require discussion of general medical insurance public policy. Yet, the mandate and its enforcement mechanism is clearly a part of the decision. Your courtesy in this has been greatly appreciated. I will be happy to abstain until this is resolved.
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http://www.npboards.com/index.php Last edited by zukiphile; July 9, 2012 at 10:29 AM. |
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July 9, 2012, 10:39 AM | #12 |
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zukiphile - there will be very little banning due to this thread unless some member goes ballistic which I don't see happening. Posts may be deleted, and there may be infractions handed out if the posts go too far against the ground rules Al laid down.
Now, since we can't determine what you want to say about the mandate as opposed to the Court's ruling concerning the commerce clause until you actually post it, what is it about the mandate itself that you want to discuss? The worst that can happen is your post (and this one) get deleted if it is not within the guidelines as stated. Or, you might point out that some clarification is in order. |
July 9, 2012, 10:53 AM | #13 |
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This is a landmark case and will have impact across the entire legal spectrum for many years.
As a non lawyer, I think the plaintiffs failed to effectively argue (ignored) the tax issue. Many decisions have been based on the intent of Congress. In this case the Congressional Record clearly indicates that Congress intended the "tax" to be a penalty. Had the Plaintiffs spent more time rebutting the Tax argument , Justice Roberts would have had the means to invalidate item IV. |
July 9, 2012, 11:05 AM | #14 | ||
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Quote:
I've dealt with Al previously, and found him calm and reasonable. I sought clarification so that the ambiguity I had noted could be resolved and that I might write within the boundaries he had envisioned. It wasn't intended to provoke belligerence. My prior post does pertain to the mandate in discussing the decision and its potential effects, and is consistent with some of what has been written above. Quote:
However, this is your club, and you set the rules. I only meant to determine what they are.
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July 9, 2012, 12:17 PM | #15 |
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About the bill originating in the wrong house of congress, I'm not sure that's true.
See http://en.wikipedia.org/wiki/Patient...are_Act#Senate As long as bills are allowed to be hijacked and completely repurposed, the letter of the law appears to have been followed.
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July 9, 2012, 12:41 PM | #16 | |
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Quote:
(I could be wrong on this, and if so, Al's the guy to ask.)
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July 9, 2012, 01:07 PM | #17 |
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I have been saying that if they had used the word "tax" those that voted for it would have committed political suicide, but that a "Tax" it was. a horse by any other name is still a horse...
I agree it is a tax, and I also agree that any revenue measure should originate in the house. Now, are those that be going to file a suit in consideration of that??? I expect that will depend on who wins and who looses, and by how much, in November. |
July 9, 2012, 01:32 PM | #18 |
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Zukiphile:
I think it safe to say that while the lawsuit was about the PPACA, the actual decision shut the door on further Commerce Clause expansion. That was the point that CJ Roberts made (in concert with the dissent), that Wickard was the ne plus ultra (the outer limits) of expansive Commerce Clause jurisprudence. |
July 9, 2012, 01:48 PM | #19 | ||
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I think the SCOTUS would have no problem striking down a law violating sentence 1 of Article 1 Section 7, if it were violated overtly by creating S.B. xxxx that dealt with taxes. (What Hogdogs was originally referring to.)
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I wonder if someone could mount a constitutional challenge on the reasoning that changing the title and stated purpose (and the contents) of a bill, turns it into a new bill, regardless of the history of its bill number. http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.3590: Quote:
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July 9, 2012, 01:56 PM | #20 |
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Al, that is clearly a correct restatement of the decision on the commerce clause. The issue opened by the Roberts rule, i.e. upholding an otherwise unconstitutional provision as a tax despite vociferous denial that it is a tax except as a matter of alternate pleading, is whether the commerce clause, or any other constitutional limitation, operates as an effective limit of any matter that could be construed as a tax.
Thus, the majority decision in Raich could be unnecessary if the tool used by Congress to regulate intra-state, non-commercial activity were merely taxed punitively. If the Roberts rule dies soon, ideally at Roberts' own hand, and the commerce clause jurisprudence remains, this decision could be very useful. However, his reasoning also has the potential of an application leaving the commerce clause a virtual dead letter.
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July 9, 2012, 01:59 PM | #21 | |
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Quote:
He was walking a similar political minefield as a previous Justice by the same last name, and he did it quite deftly. As Al mentioned, he drew a line at Wickard, and he's left the primary matter open to future challenge in both the legislative and judicial branches. I really do picture him chortling into his sleeve about this one.
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July 9, 2012, 02:28 PM | #22 |
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I don't think he's that clever, and I don't think he would want to set up another challenge that would result in the law being struck down on easily repairable procedural grounds. Think about what happened after Lopez. Congress re-passed the Gun Free School Zones Act with boilerplate interstate commerce language.
Insiders claim he was worried about the consequences of striking down Obama's signature legislation. To strike down the law after another challenge on the basis that it originated in the wrong house would be even worse than striking it down last month on substantive grounds. It would create chaos. Every other revenue law would have its legislative history checked, and would be challenged, and struck down by the courts, if found to have been gutted and re-purposed by the senate. Any laws struck down would be re-passed by the next sympathetic Congress and President. It would be a hollow victory. The Roberts court would be viewed as both vindictive (striking down Obama's signature legislation) and wasting everyone's time.
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“The egg hatched...” “...the egg hatched... and a hundred baby spiders came out...” (blade runner) “Who are you?” “A friend. I'm here to prevent you from making a mistake.” “You have no idea what I'm doing here, friend.” “In specific terms, no, but I swore an oath to protect the world...” (continuum) “It's a goal you won't understand until later. Your job is to make sure he doesn't achieve the goal.” (bsg) |
July 9, 2012, 07:14 PM | #23 | |
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Quote:
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July 10, 2012, 08:32 AM | #24 | |
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Quote:
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July 10, 2012, 03:11 PM | #25 |
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There is a difference between discounting to encourage behavior and penalizing to compel it. For some people, the amounts will end up being similar, but the legal reasoning and theory that they operate under are very different.
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