June 29, 2012

It's a Tax on Your Body

Justin Katz

Unless I missed some language, the Supreme Court's ruling on ObamaCare shirks the responsibility of explicitly defining exactly what sort of tax Congress has imposed and how similar taxes might be structured in the future. Still, a thread can be followed.

Having just read through the tax-related sections of the ruling, and although the logic is as incoherent and slave to convenience as any I've ever read, it seems to me that a straightforward conclusion can be drawn.

First, on the incoherence: The health insurance mandate is apparently not a tax for determining the standing of the suit, but it is a tax to save the law. It's not a capitation tax — "a tax that everyone must pay simply for existing" — for the purpose of evading the constitutional requirement that such taxes be apportioned by state, but it's like a capitation tax for the purpose of evading precedent that prevents taxation from being used as stealth regulation. Bob and weave; whatever form it has to take to pass each obstacle.

However, in writing his opinion, Supreme Court Chief Justice John Roberts makes a big deal about the fact that people with no income tax burden do not have to pay the tax: "It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code." Later, he likens it to a tax incentive.

The only way all of this makes coherent sense (which may be too high a standard for the highest court, granted) is if one takes the ruling a step farther to determine what sort of tax it is. I'd propose that the ObamaCare tax is effectively a capitation tax or a property tax on one's body.

Continue reading on the Ocean State Current...

Comments, although monitored, are not necessarily representative of the views Anchor Rising's contributors or approved by them. We reserve the right to delete or modify comments for any reason.

Lets not forget that the blueprint for Obama-Care...Romney-Care was signed into law by Willard Scissorhands Romney

Posted by: Sammy in Arizona at June 29, 2012 11:11 AM

Okay, the tax can't be charged to those not payign income tax due to their income being below the taxable threshold. Will it reduce the amount of their Earned Income Credit (refund to those who don't pay) if they don't have insurance?

How do you think the Robert's decision will handle that question?

Posted by: John at June 29, 2012 12:27 PM

Oh, I fully expect all such implications of the decision to be summarily ignored. That's one of the reasons I'm pushing people to insist that the tax be defined.

Posted by: Justin Katz at June 29, 2012 12:36 PM

I think Justice Roberts' position is basically that the tax code can become as complex as the government wants, so long as no individual piece is unreasonably burdensome (in a court's opinion, of course) and there are no special criminal penalties for not complying with specific parts (or else we're back to discussing penalties and not taxes).

To my mind, the easiest way to justify this would have been on Sixteenth Amendment grounds, but the opinion avoids making that connection. That may have something to do with the Court's jurisprudence on direct versus indirect taxes never having made much sense.

But what exactly does a sentence like this mean (p. 42 of the opinion)...

Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can

Posted by: Andrew at June 29, 2012 1:01 PM

This is starting to look like that Hell in a Handbasket everybody talks about us heading to.

Posted by: John at June 29, 2012 1:01 PM

Justin is posting a bunch on ar, has the current gone out to sea?

Posted by: Jim jebow at June 29, 2012 2:08 PM

Not very observant, are you?

Posted by: Justin Katz at June 29, 2012 2:13 PM

The Republic has been replaced by an Oligarchy...with a Bush appointee crafting the piece de resistance. Vive le oligarch! Roberts really pulled that one out of his a$$ to save Hussein. Hope all the libs pay homage to that Bushie they despised so much.

Posted by: ANTHONY at June 29, 2012 5:46 PM

"Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance"

... wait, so does that mean that Roberts was saying that it's only constitutional if Congress goes back and specifically puts in/uses the word "tax" for the penalty? Because the law does not currently (ha!) contain that word. So is Roberts saying that Congress has NOT "properly exercised its taxing power" because it failed to use the word tax? Or that it has because a tax by any other name is still a stinky (and also weasley) tax?

Posted by: Monique at June 29, 2012 10:34 PM


Sadly, no. That sentence is part of explaining why Congress can create a penalizing tax where it couldn't impose a mandate and fine. That is, the rule for whether a tax is constitutional is only whether the tax is constitutional, not whether the rationalization for the tax is constitutional.

I know. It doesn't make much sense.

Posted by: Justin Katz at June 29, 2012 10:42 PM

I need to examine this decision a lot more to really comment on it. While the real irony is if it was sustained on the tax angle, that tax angle could be applied numerous other ways potentially to justify the federal government being involved in other aspects of one's life.
The Tenth Amendment angle between the relationship of the federal government and the states and the people concern me. Was that addresses in the decision? I assume not?

Posted by: Scott Bill Hirst at June 30, 2012 10:07 AM
Post a comment

Remember personal info?

Important note: The text "http:" cannot appear anywhere in your comment.