dayman

Thanks for reading all of you (even if not this then the actual opinion). And I know you all know I lean left and I know you all lean right but I do love debating this stuff with anyone who will entertain it so even if we have different views while I (may arguably ) cross the line into blatant partisanship elsewhere I would like to somehow declare (not that I can lol) that it is not what I intend to do here. It doesn't matter what someone calls something though that isn't how the law works. If they called it a tax and it was clearly a penalty outside the scope of commerce clause that would not get it through. Constitutional analysis is substance over form. Same all over the law. If you draft your will wrong your corpse is SOL. If you **** up your contract w/ someone you are SOL. If you try to assign and interest in land and what you've actually done is lease it you are SOL. Etc... That's fair. And personally to hear that criticism from fellow citizens is infinitely more promising than to hear people say they agree w/ Scalia's approach. I won't get into it now in this post but fundamentally I am not an "originalist" (b/c unlike Scalia I don't know the minds of more than a dozen non-homogeneous framers) or a "strict textualist" in the slightest and it's not political I've read a lot of the mans opinions many of them are absurd...far more absurd than most find this one to be. I may do a write up on his dissent re: tax argument but it's brutal...reading his opinions... Point being acknowledging that you should look to function over form and that they just got it wrong here is miles better than the word splicing you will get from Scalia. Well actually things would have went much better if the DOJ would have been willing to call it tax more readily. They basically would do that only as a last resort. And in any event...Supreme Court isn't applying the smell test regardless of either side. I didn't post the anti-injunction section but it is fairly straight forward and there is legal reasoning but I wouldn't be able to say with a straight face there was absolutely no judicial acrobatics involved there. That said that act is not the constitution and the analysis and history of it's application (as C.J. points out) requires a different analysis. But I understand how "it's a penalty for the anti-injunction act" and "it's a tax per when given constitutional muster" doesn't sit well with anyone but fellow lawyers. lol...that much is clear

..he who lives in a glass house

It's worth noting there was no reference to the Senate argument within Scalia's dissent and he analyzed the reasons it was not a tax in great detail. In the sausage making that is the legislative process it seems should the house acquiesce that is sufficient. Impossible that Scalia would leave that out as ammo for his "regulation not tax" position. The Thomas dissent in its entirety: I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the IndividualMandate is beyond the power granted to Congress un-der the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate“economic activity [that] substantially affects interstatecommerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545 U. S. 1, 67–69 (2005) (THOMAS, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedentedclaim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.

You need not fear. To me the tax section of Roberts opinion makes a much more compelling case than anything that has ever been advanced under the commerce clause. And as predicted, Scalia's word splicing, textualist, never functional, analysis in his dissent was absurd. Scalia basically consented this was within the taxing power (without reaching much analysis on the point) but that since it doesn't use the word tax it is not a tax. He says at one point if they added "in the alternative it is not a penalty but a tax" those magic words would have done the trick. What and joke he's become taking his textualism to the extreme.

LOL holy God Issa is in rare form CSPAN has never been so entertaining. What a dick. Epic fake-yield of time there.

And looks like that is that.

Dante is under the impression that our healthcare system was working well w/ out "government" that we somehow only now have? Government is always in healthcare. They've just took a step to make things better.

Contempt vote to happen on CSPAN soon. Issa further spewing garbage as I type.

Primary care physicians win in this bill. Specialists should be angry but oh well. Poor doctors "good luck getting me to treat you" lol...what thing to say online. You should encourage your politicians to stop destroying Washington and get on doing work to implement and then further refine the bill.

Yup. And everybody needs to accept that. As is said the Supreme Court is not final b/c it is infallible...it is infallible b/c it is final.

He can't repeal it but he won't admit that to the people of the nation. He would need majorities (perhaps super majority) in both houses and the presidency. Indeed this was a great victory for Obama. Now we can get going with it, alter it as it needs to be, the Republicans need to accept it and not try to destroy it or make it fail and just alter it as problems come up. This is law now. This is not going away. Don't hurt the people by being retarded, just perform your legitimate function GOP Congressman and make the law better.

I know nobody cares but I do this not only for this board lol so don't worry. The opinion covers why why it wasn't valid under commerce clause, and medicaid expansion. There are also dissents and concurrences (obviously). Since I am reading through the opinion anyway I copied out some text that address this one issue since some people keep saying "Constitution is dead" etc. That may be your view, even after reading this if you choose to, but if you want to know why it isn't Robert's view and don't want to read the opinion here is a 3 pages edit of the basic reasoning. Everything except underline portions is directly from the opinion and it's all in order...underline parts just describe what large areas were about that I skipped. Basically each paragraph break or "...." shows an area where a cut happened (if you care to know). Also I have no idea why the spacing sometimes is messed up it's just a formatting issue translating form adobe I guess but it isn't too bad. Congress may also “lay and collect Taxes, Duties, Im¬posts and Excises, to pay the Debts and provide for thecommon Defence and general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. Put simply, Con¬gress may tax and spend. This grant gives the FederalGovernment considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid,or otherwise control. See, e.g., License Tax Cases, 5 Wall. 462, 471 (1867). And in exercising its spending power,Congress may offer funds to the States, and may condition those offers on compliance with specified conditions. See, e.g., College Savings Bank v. Florida Prepaid Postsecond¬ary Ed. Expense Bd., 527 U. S. 666, 686 (1999). These offers may well induce the States to adopt policies thatthe Federal Government itself could not impose. See, e.g., South Dakota v. Dole, 483 U. S. 203, 205–206 (1987) (con-ditioning federal highway funds on States raising their drinking age to 21). The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary andproper for carrying into Execution the foregoing Powers.”Art. I, §8, cl. 18. We have long read this provision to giveCongress great latitude in exercising its powers: Beginning in 2014, those who do not comply with themandate must make a “hared responsibility payment” to the Federal Government. §5000A(b)(1). That payment,which the Act describes as a “penalty,” is calculated as a percentage of household income, subject to a floor based ona specified dollar amount and a ceiling based on the aver¬age annual premium the individual would have to pay for qualifying private health insurance. §5000A©. In 2016, for example, the penalty will be 2.5 percent of an individ¬ual’s household income, but no less than $695 and no more than the average yearly premium for insurance that co¬vers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization). Ibid.; 42 U. S. C. §18022. The Act provides that the penalty will be paid tothe Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties, such as the penalty for claiming too large an income tax refund. 26 U. S. C. §5000A(g)(1). The Act, however, bars the IRS from using several of its nor¬mal enforcement tools, such as criminal prosecutions and levies. §5000A(g)(2). And some individuals who are sub¬ject to the mandate are nonetheless exempt from the penalty—for example, those with income below a certainthreshold and members of Indian tribes. §5000A(e). [describes split lower court rulings some striking down on commerce clause others finding it a tax and refusing to rule until it goes into effect per anti-injunction act] The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning thatdoes not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it una¬voidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Justice Holmes made the same point a century later: “[T]he rule issettled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that whichwill save the Act.” Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing acondition—not owning health insurance—that triggers atax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earn¬ing income. It is of course true that the Act describes the payment asa “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewedas an exercise of Congress’s taxing power. It is up to Con¬gress whether to apply the Anti-Injunction Act to anyparticular statute, so it makes sense to be guided by Con¬gress’s choice of label on that question. That choice does not, however, control whether an exaction is within Con¬gress’s constitutional power to tax. [speaks of precedent where they decide what is and is not in taxing power regardless of Congress calling it a tax (child labor cases…liquor license cases, etc)] (“[M]agic words or labels” should not “disable an otherwise constitutional levy” (internal quotation marks omitted)); Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 363 (1941) (“In passing on the constitutionality of a tax law, we are concerned only with its practical operation,not its definition or the precise form of descriptive wordswhich may be applied to it” [more case law on functional approach to court analysis] [more case law on functional approach to court analysis] The same analysis here suggests that the shared re¬sponsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insur¬ance, and, by statute, it can never be more. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by theIRS through the normal means of taxation—except thatthe Service is not allowed to use those means most sugges¬tive of a punitive sanction, such as criminal prosecution None of this is to say that the payment is not intended to affect individual conduct. Although the payment willraise considerable revenue, it is plainly designed to ex¬pand health insurance coverage. But taxes that seek to influence conduct are nothing new. …. Today, federal and state taxes can compose more than half the retail price of cigarettes not just to raise more money, but to encourage people to quit smoking. Neither the Act nor any other law attaches negative legal consequences to not buying health insur-ance, beyond requiring a payment to the IRS. The Gov¬ernment agrees with that reading, confirming that ifsomeone chooses to pay rather than obtain health insur¬ance, they have fully complied with the law. Indeed, it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. … Congress did not think it was creating four million outlaws. Sup¬pose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient win¬dows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing thresholdneed not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the pay¬ment. Interpreting such a law to be a tax would hardly “mpos[e] a tax through judicial legislation.” Our precedent demonstrates that Congress had thepower to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more thanimpose a tax. That is sufficient to sustain it. The “ques¬tion of the constitutionality of action taken by Congressdoes not depend on recitals of the power which it under¬takes to exercise.” [talks extensively about direct tax evolution to rebut argument this tax is not “fairly apportioned” and sites case law that shows this cannot be considered a direct tax possibly since the days of Madison and at least since the late 1880s] A tax on going without health insurance does not fall within any recognized category of direct tax. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstainfrom commerce, perhaps it should be similarly troubling topermit Congress to impose a tax for not doing something. Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. Second, Congress’s ability to use its taxing power toinfluence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitiveexactions obviously designed to regulate behavior other¬wise regarded at the time as beyond federal authority. …. “‘there comes a time in the extension of the penalizing features of the so-called tax when it losesits character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” ….. We have already explained that the shared responsibil¬ity payment’s practical characteristics pass muster as atax under our narrowest interpretations of the taxing power. Third, although the breadth of Congress’s power to taxis greater than its power to regulate commerce, the taxingpower does not give Congress the same degree of controlover individual behavior. ….. Congress’s authority under the taxingpower is limited to requiring an individual to pay money into the Federal Treasury, no more. The Affordable Care Act’s requirement that certain in¬dividuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Be¬cause the Constitution permits such a tax, it is not our roleto forbid it, or to pass upon its wisdom or fairness.

Your argument is that they should but they shouldn't enact an amendment to do so? They need one. It's legitimate to say you don't think we should. Or even then we would be well served to but ultimately we shouldn't amend to do so. But so say we should, but we shouldn't enact a amendment empowering us to do so, is nonsensical.

Wise words from a man I almost always disagree with. Impeach the C.J. b/c he didn't vote along the perceived ideological lines? LOL

I know nobody cares but here is the lexis summary of SEVERABILITY, 72 N.C.L. Rev. 203: … When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. … For example, severability becomes an issue when: (1) a party challenges an entire statute, arguing that if any provision of the statute is unconstitutional and nonseverable, the rest of the statute is ineffective; (2) a party argues that a statutory provision is invalid because it is nonseverable from another, purportedly unconstitutional provision of the statute; (3) a party contends that an ap plication of a statutory provision is invalid because it is nonseverable from other, unconstitutional applications of the statute; (4) a party argues that a statute is nonseverable, and therefore, another party's constitutional challenge to a provision of the statute would preclude that party from receiving any relief from other provisions of the statute; and (5) a party challenges a statute as being either constitutionally underinclusive or overinclusive. … It is improper to imply such a limitation on the effect of a severability clause because the ability of a statute to continue to function absent an unconstitutional provision is itself really a question of legislative intent. … The Court's recent statutory construction cases suggest two types of general rules in the severability context: a presumption of severability or a clear statement rule. … ...later on in the article... If a statute contains a severability clause (or a nonseverability clause), such an explicit statement should be construed according to its plain meaning. If the statutory text is silent regarding severability, then the structure of the act, its purpose, and the legislative history should be consulted, although such sources are often inconclusive about severability. In addition, there should be a general rule favoring severability. Severability is the general rule, severability clauses merely reinforce legislative intent. ...and here's another excerpt providing case law... Alaska Airlines v. Brock represents the Supreme Court's most recent attempt to fashion a definitive test for severability. In Alaska Airlines, several airlines challenged section 43 of the Airline Deregulation Act of 1978, which imposed a duty to hire certain protected employees who have a first right of hire by any airline hiring employees with their qualifications. 31 Section 43 authorized the Secretary of Labor to promulgate regulations to implement the program, but section 43 also contained a legislative veto authorizing either house of Congress to disapprove such regulations. 32 The airlines argued that section 43 should fall in its entirety because the legislative veto was nonseverable from the other parts of that section. 33 A unanimous Court disagreed. The Court first described its general test for determining severability. It began by stating that a court should refrain from invalidating more of the statute than is necessary. 34 Next the Court reaffirmed the Champlin test. Under this test, a statute is severable if: (1) the legislature would have enacted the remaining provisions of the statute without the invalid provisions, and (2) the remaining provisions of the statute can function independently of the invalid provision. 35 Faced with a legislative veto, which by its very nature is separate from the operation of the substantive provisions of a statute, the Court refined the Champlin test to inquire whether the statute will function in a manner consistent with the intent of Congress. 36 Finally, the Court said that a severability clause cre [211] ates a presumption that a statute is severable, but the absence of such a clause does not create a presumption of nonseverability.

Actually now that I think about it just look at the medicaid portion of this opinion released today. The Fed can apportion money on condition they spend it a certain way, however the Fed cannot compel the states to regulate something. So what was the holding? The Fed can refrain from giving the additional money set up for the Medcaid expansion if a state decides not to comply with the ACA expansion standards but it cannot pull out the existing medicaid funding the stats were already getting. The Fed argument was that Medicaid is medicaid and it's a reform of the program and if they don't want to want to spend the MEDICAID money the way we apportion it they don't get it...the court said "no"...that's unreasonably harsh and would result in compelling states into compliance b/c no state could reasonably turn that down there is no "real choice" so in this instance the "substance" of that argument is that it is compelling states to regulate, despite the "form" being that they still have the choice as to all Medicaid funding. That just shows how this sort of analysis is pervasive throughout ALL law, this is how legal analysis is done routinely in all areas. Not only does this general principle happen all throughout history in all sorts of contexts, it happened multiple times in this one opinion.

To find an example directly analogous to this wouldn't be hard I may look but it would take some searching. But off the top of anyone's head...Marbury v. Madison the most famous case in American history...you need look no further than that for the principle example of the form over substance exercise courts regularly engage in as to the constitution, legislative materials, contracts, conveyances of interests in land and the drafting of wills(the most common example where you need a drafter who knows what he's doing)...it's a matter of course.

THen educate yourself and learn something for a change. What I said there is absolute truth known across wide segments of society. The question was basically "how do courts work" in situation like this...that's the answer. Don't be a willful dumbass.

Imagine a scenario where form and not substance ruled. If you think that calling a penalty administered exclusively by the IRS in the regular course of their collections activities with no criminal competent that comes from a Bill written by the tax committee is not a tax is absurd we disagree on that...but if the mere words were what the court used guide them far more absurd results would be all over the law. Lawyers know how to call something one thing when it's another thing all together...that's why the courts look to substance...otherwise the law would be meaningless.

Are you aware of current First Amendment jurisprudence? Clearly not.

' B-Man that man has no way to prove anything he said b/c there is no way to prove it he's talking out of his ass to try and scare you into being violently against a Bill that hurts his political party. Plain and simple. Wake up.

LOL it's fine to feel this way but you are about 75 years late to say this.

And I'll say it again, if you know anything about how courts construe anything...be it a tax/penalty, be it a conveyance of land, be it anything under the sun save a few specific examples they look to substance over form...there are few areas of the law that "magic words" make a difference and this was never one of them. The oral arguments were bizarre b/e the gov't lawyer was hamstrung and wouldn't hit the ball...but regardless of what he or member of congress would admit, the court called it what it is. A penalty administered by the IRS, w/ no criminal component, that is what a tax is.

Romney speaking now basically saying he wants to do everything ACA does but not by the ACA by some unknown bill...which is strange since we saw what he came up w/ previously as Governor...lol...he should come out and say "if you have preexisting injuries, if you are within 133% of the poverty line, I will !@#$ you....if you are under 26 (and in some cases 30) I may !@#$ you."

No, you have to pay the bill. If you are under 133% of the poverty line you basically will have medicaid unless your governor hates poor people and refuses to take money to expand under the ACA...if you are over 133% and have no insurance paying the tax year to year and get sick then you get a bill and if it pushes you to bankruptcy then so be it. This bill IS about personal responsibility at it's heart. I've read a lot of Conlaw just trust me this is what courts do as a matter of course. Just look at the lower courts in this very case...that's what they were doing. Courts uphold the bill if there is a reasonable construction that allows it, if not the cut out the cancerous part, and if they can't cut out the cancerous part without disrupting the entire scheme of the bill they take the whole thing down. That's just how it's done take me at my word I've read a lot of Conlaw.