OBAMA/TRUMPCARE MEGATHREAD

[farmteam]

See my post above yours. While it's an extreme and simplified example...it's an example that highlights that just because both means lead to the same end, it doesn't necessarily mean they're both allowed and/or legal.

 

True. However, some might say that if X is constitutional, and if Y accomplishes the same thing as X, then there is the presumption that Y is also constitutional. Your hypo doesn't rebut that presumption; it just says "well, in some cases that isn't true." It would instead have to show that Y is specifically unconstitutional.

 

That's just an argument that could be made, but I actually agree with you on this specific point. Since the federal government is a system of enumerated powers, there is no presumption of constitutionality; you always have to show why something IS constitutional, not why it is not constitutional.

[StrangeSox]

Recently I had to argue a case before the 1st District Appellate Court (state). My partners have done a lot of oral arguments in their careers, so during my prep they were giving me a lot of pointers. One of them was to expect ridiculous off the wall hypotheticals (much like Scalia's broccoli one). The reason why was two fold - (1) the judges know the law better than you do, so they're testing to see if they can move you from your position. They try to get you off your game to see if your position really stands up. (2) entertainment - judges get bored of 5 hours of legal argument. They like to spice things up a bit.

 

I see that a lot in what Scalia does. Yes, he's already got his position on these issues (as does every other judge) before oral arguments begin. So why not have some fun? Poke around and see what you can get the attorneys to say.

 

Scalia's broccoli thing (among other arguments he made) wasn't a "ridiculous off the wall hypothetical." It's been a GOP talking point for a while.

[StrangeSox]

See my post above yours. While it's an extreme and simplified example...it's an example that highlights that just because both means lead to the same end, it doesn't necessarily mean they're both allowed and/or legal.

 

They're not really different means, though. The PED analogy doesn't hold because it's introducing a new mechanism to the system, not a rewording of the same mechanism.

[NorthSideSox72]

They're not really different means, though. The PED analogy doesn't hold because it's introducing a new mechanism to the system, not a rewording of the same mechanism.

 

You and Balta keep saying this, and it keeps not being true. Requiring the purchase of a consumer product is absolutely and clearly a new mechanism, and a new exercise of Congressional authority. Even if you think that said expansion of authority is OK, you cannot truthfully argue that it isn't an expansion at all.

 

 

[StrangeSox]

You and Balta keep saying this, and it keeps not being true. Requiring the purchase of a consumer product is absolutely and clearly a new mechanism, and a new exercise of Congressional authority. Even if you think that said expansion of authority is OK, you cannot truthfully argue that it isn't an expansion at all.

Tax of $X, buy this thing and we'll credit you $X.

 

vs

 

Buy this thing or we'll tax you $X.

 

Why is one of these clearly within the bounds of the constitution and the other isn't? How is the second not Congress exercising the same authority in a similar manner with the same outcome?

[NorthSideSox72]

Tax of $X, buy this thing and we'll credit you $X.

 

vs

 

Buy this thing or we'll tax you $X.

 

Why is one of these clearly within the bounds of the constitution and the other isn't? How is the second not Congress exercising the same authority in a similar manner with the same outcome?

 

I just told you why. So have 4 other people. It is different because it requires you to buy a consumer product.

 

Now, it can be argued that those two things you list are financially a similar impact, and the delivery of service to citizens is in essence the same. And therefore, you can think it is a good thing. But simply, mechanically, and on its face, it is NOT the same. It is crossing a line, and the only way to make that OK is to move said line, which can really only be done via a Constitutional amendment.

 

They should have had the balls to just make it a tax and do it right the first time. And if that wouldn't survive, then go another route.

 

[Y2HH]

I just told you why. So have 4 other people. It is different because it requires you to buy a consumer product.

 

Now, it can be argued that those two things you list are financially a similar impact, and the delivery of service to citizens is in essence the same. And therefore, you can think it is a good thing. But simply, mechanically, and on its face, it is NOT the same. It is crossing a line, and the only way to make that OK is to move said line, which can really only be done via a Constitutional amendment.

 

They should have had the balls to just make it a tax and do it right the first time. And if that wouldn't survive, then go another route.

 

Right, one is a tax (which they can choose to add incentives if you do X, Y and Z, such as write offs on interest payments), and the other is a penalty for NOT doing something. If they had made it a tax, this isn't in the supreme court right now being discussed.

 

Even the liberal minded justices are saying this is a 'special circumstance', if it was the same thing as the other examples, they wouldn't say that, and it wouldn't even be a case they're looking at right now. It's being called into question because it's questionable. While these examples achieve the same outcome, both routes (EDIT) are may not be legal to that outcome.

Edited March 30, 2012 by Y2HH

[StrangeSox]

I just told you why. So have 4 other people. It is different because it requires you to buy a consumer product.

 

Now, it can be argued that those two things you list are financially a similar impact, and the delivery of service to citizens is in essence the same. And therefore, you can think it is a good thing. But simply, mechanically, and on its face, it is NOT the same. It is crossing a line, and the only way to make that OK is to move said line, which can really only be done via a Constitutional amendment.

 

They should have had the balls to just make it a tax and do it right the first time. And if that wouldn't survive, then go another route.

 

What line is crossed? What new power has Congress gained? If they could do the exact same thing but with different wording, what line is being crossed here?

 

edit: A strong majority of legal scholars were basically laughing at the "inactivity/activity" novel distinction before this week.

Edited March 30, 2012 by StrangeSox

[Y2HH]

A strong majority of legal scholars were basically laughing at the "inactivity/activity" novel distinction before this week.

 

I guess they're not laughing anymore.

 

And let me guess, they were "liberal" legal scholars, right, versus just...regular legal scholars that don't take politics into account when making judgements?

 

Not to say that some of the justices on the supreme court aren't like that, too...but whatever.

Edited March 30, 2012 by Y2HH

[StrangeSox]

What meaningful limit on Congress's power is there if the ACA mandate is struck down if Congress can do the exact same thing with a minor tweak?

[Y2HH]

What meaningful limit on Congress's power is there if the ACA mandate is struck down if Congress can do the exact same thing with a minor tweak?

 

That's actually a pretty major tweak. If it was that "minor" they'd have done it that way from the start.

[StrangeSox]

That's actually a pretty major tweak. If it was that "minor" they'd have done it that way from the start.

 

Or maybe they didn't anticipate anyone would take garbage like the broccoli arguments seriously since conservatives didn't have a problem with mandates until Obama came along (see: who originally crafted the mandate, social security privatizing in 2005).

 

Again, how does striking down the mandate limit Congress's powers if they can still get the same exact results with different wording?

[Y2HH]

Or maybe they didn't anticipate anyone would take garbage like the broccoli arguments seriously since conservatives didn't have a problem with mandates until Obama came along (see: who originally crafted the mandate, social security privatizing in 2005).

 

Again, how does striking down the mandate limit Congress's powers if they can still get the same exact results with different wording?

 

Social Security Privatizing didn't happen, though...this did.

[StrangeSox]

Social Security Privatizing didn't happen, though...this did.

 

But nobody* at the time really thought there was anything unconstitutional about mandated private retirement investment accounts.

 

*there's always the libertarians who think the whole modern government is pretty much unconstitutional

[Soxbadger]

Im not very well versed on this stuff.

 

And maybe this has been argued, but wouldnt it not be a tax because you are paying a private company.

 

Wouldnt the better example be car insurance?

 

Illinois law requires that you own car insurance to drive on the roads of Illinois. Now yes, driving is considered a privilege, but couldnt we argue that receiving medical treatment at a hospital, etc that is paid for by the tax payers is a privilege? That there is no law that states as a society we must treat anyone who is sick? So isnt there a good argument to be made that if you want the privilege of knowing that you can have access to any hospital, knowing that if you are sick or injured anywhere in the US, that you will be able to receive treatment, that the US can create a law that restricts that privilege unless you have health insurance?

 

To me that seems like the actual intent of this law. Not to tax people (govt isnt getting the money, or at least that is my understanding), not to penalize people, but instead to prevent states/govt being left holding huge bills for the treatment of non-insured?

 

 

[Jenksismyhero]

That was mandatory either, it was an option - either continue paying SS tax and get SS benefits, or keep your money and be on your own.

[Y2HH]

But nobody* at the time really thought there was anything unconstitutional about mandated private retirement investment accounts.

 

*there's always the libertarians who think the whole modern government is pretty much unconstitutional

 

The whole privatizing social security idea was a stupid idea which didn't get through anyway, nor did anyone think it had any chance to get through, so of course the unconstitutional arguments didn't start. I'm sure they would have, however, if they did get it through...only right now, you'd all be arguing how it's unconstitutional, instead...as would the 4 liberal justices.

 

* Edit : And this had an opt-out clause, as a poster stated above, which wouldn't penalize you for opting out...

Edited March 30, 2012 by Y2HH

[StrangeSox]

That was mandatory either, it was an option - either continue paying SS tax and get SS benefits, or keep your money and be on your own.

 

You could not simply "keep" the money. You were mandated to invest it in private-market investment vehicles. The medicare privatization schemes are similar.

 

So what new Congressional powers did ACA find, and what powers will striking down ACA limit?

[StrangeSox]

The whole privatizing social security idea was a stupid idea which didn't get through anyway, nor did anyone think it had any chance to get through, so of course the unconstitutional arguments didn't start. I'm sure they would have, however, if they did get it through...only right now, you'd all be arguing how it's unconstitutional, instead...as would the 4 liberal justices.

 

* Edit : And this had an opt-out clause, as a poster stated above, which wouldn't penalize you for opting out...

 

If you want to go with the opposition to the ACA mandate being purely political and opportunistic I won't argue.

[Y2HH]

Im not very well versed on this stuff.

 

And maybe this has been argued, but wouldnt it not be a tax because you are paying a private company.

 

Wouldnt the better example be car insurance?

 

Illinois law requires that you own car insurance to drive on the roads of Illinois. Now yes, driving is considered a privilege, but couldnt we argue that receiving medical treatment at a hospital, etc that is paid for by the tax payers is a privilege? That there is no law that states as a society we must treat anyone who is sick? So isnt there a good argument to be made that if you want the privilege of knowing that you can have access to any hospital, knowing that if you are sick or injured anywhere in the US, that you will be able to receive treatment, that the US can create a law that restricts that privilege unless you have health insurance?

 

To me that seems like the actual intent of this law. Not to tax people (govt isnt getting the money, or at least that is my understanding), not to penalize people, but instead to prevent states/govt being left holding huge bills for the treatment of non-insured?

 

Comes down to choice, and lack of choice.

 

You don't HAVE to buy a car or drive, therefore they're not telling you that you HAVE to purchase something.

 

You HAVE to do this. In this case, they're outright telling you that you HAVE to buy a product, even if you don't want it. And I know, it's silly that a person wouldn't want health insurance, right? That's the point.

[Jenksismyhero]

You could not simply "keep" the money. You were mandated to invest it in private-market investment vehicles. The medicare privatization schemes are similar.

 

So what new Congressional powers did ACA find, and what powers will striking down ACA limit?

 

There were many theories on the table, from a strictly private investment to the government lock box. But either way, that's at least the government decided to forgive you from a tax. You didn't have to "buy" anything. If the options were to pay the tax or buy a specific private market investment then I would have made the same argument. I want the freedom to investment my money however I please.

[StrangeSox]

Comes down to choice, and lack of choice.

 

You don't HAVE to buy a car or drive, therefore they're not telling you that you HAVE to purchase something.

 

You HAVE to do this. In this case, they're outright telling you that you HAVE to buy a product, even if you don't want it. And I know, it's silly that a person wouldn't want health insurance, right? That's the point.

 

The argument, and Kennedy hit on this during arguments, is that vanishingly few people have the ability to truly and completely opt-out of the health care market. Everyone consumes at some point, and those without insurance shift the cost burden onto everyone else.

 

Which is why talking about mandating Chevy Volt purchases was dumb partisanship.

[Y2HH]

You could not simply "keep" the money. You were mandated to invest it in private-market investment vehicles. The medicare privatization schemes are similar.

 

So what new Congressional powers did ACA find, and what powers will striking down ACA limit?

 

We've explained this already.

 

Medicare is a tax.

 

SS is a tax.

 

Look on your paycheck.

 

THIS IS NOT A TAX. That's the entire point in that it's a NEW power granted to congress. If this precedent is set, and I know you find the Broccoli argument ridiculous -- because it's SUPPOSED TO BE -- it sets the future precedent that congress can now tell you that you have to buy things. Yes, they can always pass a tax increase, and that's STILL NOT THE SAME AS THEM TELLING YOU TO BUY SOMETHING, even if it's achieving the same goal.

[StrangeSox]

There were many theories on the table, from a strictly private investment to the government lock box. But either way, that's at least the government decided to forgive you from a tax. You didn't have to "buy" anything. If the options were to pay the tax or buy a specific private market investment then I would have made the same argument. I want the freedom to investment my money however I please.

 

You had the option to divert some of your FICA funds into private investment vehicles, but you could not simply keep the money. You were mandated to invest in certain types of private investments or to pay higher FICA taxes. You could not do anything you wanted with that money.

[StrangeSox]

We've explained this already.

 

Medicare is a tax.

 

SS is a tax.

 

Look on your paycheck.

 

THIS IS NOT A TAX. That's the entire point in that it's a NEW power granted to congress. If this precedent is set, and I know you find the Broccoli argument ridiculous -- because it's SUPPOSED TO BE -- it sets the future precedent that congress can now tell you that you have to buy things. Yes, they can always pass a tax increase, and that's STILL NOT THE SAME AS THEM TELLING YOU TO BUY SOMETHING, even if it's achieving the same goal.

 

What is the substantial difference between a tax and a penalty? You're not forced to buy something, but you face a penalty if you do not.

 

I'm not forced to buy a home, but I'll pay higher federal income taxes for not having a mortgage.

 

Isn't this merely a distinction of semantics?

 

Edited March 30, 2012 by StrangeSox