Patterico's Pontifications

6/29/2012

A Word on Labels

Filed under: — Patterico @ 7:10 am

John Hinderaker is OK with Roberts’s opinion because he says it looks behind the label put on the mandate’s penalty to determine whether it actually functions as a tax or a penalty. I happen to think the dissent has the better argument on how it functions, but explaining why goes beyond the scope of my point in the main post. Mainly, I want to acknowledge that the label is not necessarily the be-all and end-all, but when Congress passes something that (based on the statute’s plain meaning) looks like a duck, walks like a duck, and quacks like a duck, and they also repeatedly call it a duck, then textualism says it’s a duck.

Even if every Congressman secretly thinks of it as a swan, if the words show it’s a duck, it’s a duck.

Now, they could pass something that is blatantly a tax increase on the wealthy and/or middle class, and simply slap a dishonest “penalty” label on it to avoid accountability. (Indeed, after yesterday they are far more likely to do that.) I don’t think a textualist would be required to accept such a tax as a penalty, and I do not intend to suggest that. What I do suggest is that a textualist would secure what it actually is based on the words of the statute and not based on some guessed-at legislative intent. That is the proper analysis if one wishes to maintain fealty to the rule of law.

21 Responses to “A Word on Labels”

  1. personally i wouldn’t wipe my ass with America’s gay and feeble constitution anymore

    happyfeet (3c92a1)

  2. There’s nothing majorly wrong with the COTUS itself.

    There IS something majorly wrong with the way in which it is being applied to decide certain cases.

    Icy (11b47c)

  3. other than being a dead letter it’s a fine little piece of paper Mr. Icy

    happyfeet (3c92a1)

  4. It’s not the constitution, it’s the disregard for it by all the major players.

    mg (44de53)

  5. Ya know it’s ironic — no, what’s that other thing? Oh yeah. Start again.

    Ya know, it’s utterly predictable how the same people that crowed about how Romney raised taxes in MA, disguising it as “fees”, are now giving the President a pass for this blatant tax increase on every uninsured member of the middle class.

    Icy (11b47c)

  6. … on some guessed-at legislative intent.

    But that is the rational basis standard, unfortunately. I disagree with the decision, I think Roberts construed the law broadly to make it constitutional when the usual practice is to construe it narrowly. A disappointment for me after all his talk about rights to liberty found in the Bill of Rights and the Fourteenth Amendment at his nomination hearing. But I am reminded of the homily, “bad cases make bad law”.

    nk (875f57)

  7. Nobody is talking about legislative intent, other than what you could derive by studying the text.

    When he wanted to exclude this from the anti-injunction Act (that usually precludes challenges to taxes before they are due and even then they must be paid and then the government can be sued for a refund) Roberts actually went into the text to argue this was not treated the same way as other items labeled taxes in the bill.

    He said that the way it was labeled governed there because legislation was the source of both the Anti-injunction Act and this law.

    With regard to something from the constitution, he said the constitution governed – that is, what mattered is what it was or could be construed as, not what Congress said it was. That is legislative intent, as far as what you want to call it goes, doesn’t matter.

    There is a problem in that, the Solicitor general cannot be the source for a claim that it is perfectly legal not to obtain insurance. But even there he looked at text, not speeches. (albeit not text in the law, but this also includes an evaluation of the meaning of the fact that some things are NOT in the law)

    He argued (at pages 37-38)

    …Indeed it is estimated that four million people each year will choose to pay the IRS rather than buy insurance. See Congressional Budget Office, supra, at 71. We would expect Congress to be troubled by that prospect if such conduct were unlawful. That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress didn’t think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.

    (Then he goes on to cite New York v United States, as proof that the word “shall” does not mean – or has not been held to mean – that something is an unavoidable obligation.)

    Now this quote above is a little bit disingenuous.

    The CBO had figures that included an estimation of how many people would not obey the mandate because budget rules require that, and probably somewhere else the CBO has done that when dealing with something that is unquestionably a violation of law.

    So he is also going by the fact that the bill doesn’t seem bothered by the fact that so many people will not have health insurance. Nothing was changed because of that. This kind of analysis gives Congress too much credit for wanting the laws it writes to be carried out as written.

    This was a very political process and Congress could have indeed outlawed something without wanting to crack down hard on that. Indeed Congress didn’t even want to push collection of the penalty too far, and a lot of things that happen when somebody doesn’t pay taxes are not supposed to happen here.

    Sammy Finkelman (976d9e)

  8. This decision has given the Congress carte blanche to disguise new taxes however they see fit. As long as the money collected makes its way into the Dep. of Revenue coffers it doesn’t seem to matter how it’s labeled — or, presumably, how it is even collected.

    Want to complain about that excessive fine from the EPA? Tut, tut, tut — it’s a tax, and the government can tax you whatever it pleases.

    And what if toll-booths start springing up on our interstate highway system? Sorry, skeezix, that’s a tax; either pay it or turn around and go home!

    Most transparent administration EVAH!

    Icy (11b47c)

  9. Indeed Congress didn’t even want to push collection of the penalty too far, and a lot of things that happen when somebody doesn’t pay taxes are not supposed to happen here.
    Comment by Sammy Finkelman — 6/29/2012 @ 8:28 am

    — And do you believe that that is going to be the case, Sammy? For instance, do you believe that NOT paying the fine/tax . . .
    WON’T negatively affect your credit score?
    WON’T be deducted from your tax return?
    WON’T result in wage garnishment?
    WON’T hamper your ability to collect other gov benefits owed you?
    WON’T preclude you receiving a gov loan?

    When it comes to this stuff, the Feds are like The Sopranos — “Gimme my f***ing money!”

    Icy (11b47c)

  10. By the way I got some facts about the penalty/tax wrong yesterday. This is the kind of bill that not only do you have to pass it to find out what is in it, you almost have to wait till it goes into effect to find out what is in it.

    Anyway in 2016, the penalty/tax will be: (I think)

    1) Zero if you are not required to fill an income tax return.

    2) Payable by whoever supports you if you are claimed as a dependent – half the regular amount for those under 18.

    3) Otherwise, the penalty/tax is the HIGHER of:

    A) $695

    B) 2.5% of your annual adjusted gross income (with municipal bond interest added back on and maybe some other adjustments)

    But still no more than 60% of the cost of insurance covering ten specified things (one of them is prescription drugs)

    For a single individual, he cost of the required insurance in 2016 is estimated to $400 a month or $4,800 a year.

    So it’s $4,800 or the greater of $695 or 2.5% of income till you hit $2,880 at $115,200 of income.

    You are also exempt (or credited if you like) if you have Medicare or Medicaid, veterans care or half a dozen other things or are covered by your employer or some family member’s plan, like your spouse or parents.

    For a single individual the cost of insurance in 2016 is estimated as I said at $400 a month.

    There is another limitation on the penalty/tax:

    Also no more than 8% monthly of your annual income (that is no more than 100% of income)

    28/365 is actually 7.67% 29/366 is 7.92% 30/365 is 8.2%

    You can go three months without health insurance (but not more than once a year) before the penalty/tax kicks in. Gaps that partly in on calender year and partly in another count too.

    So if you lose your job and wth it your insurance you have three months to come up with some other insurance or get charged (for the three months too)

    But don’t worry,the state unemployment insurance will maybe help you apply for Medicaid. And why not? The federal government is paying 100% of the cost in 2014 and 2015 and it is never supposed to go below 90%. They won’t worry about fraud or inaccurate applications and neither should you. But you should worry about the complications you would have if you found another job without health insurance.

    Sammy Finkelman (976d9e)

  11. For a single individual, he cost of the required insurance in 2016 is estimated to $400 a month or $4,800 a year.

    Where can I find that? I pay $664.00/mo, with a $500.00 deductible and 10% co-pay if in network, 20% if out of network, and that’s an employment-based group plan.

    nk (875f57)

  12. Also, the minimum payment (per return?) can’t go above 3 times that for a single individual. That is, in 2016 $695×3 or $2,085 (that would be a couple and two children if this is correct. If this is correct they don’t get charged extra for more dependents)

    Sammy Finkelman (976d9e)

  13. MediCaid, of course is cutting reimbursements and is on it’s way to being almost sham insurance in places, and definitely inferior, but it will free people from the mandate. As long as they stay poor.

    The instant someone is off the Medicaid, it’s at least $400 per adult person per month if you choose to get insurance, or $58 per month if you choose to avoid that and instead rely on emergency rooms and buying insurance after you are in the hospital or are diagnosed with some serious disease – you could probably get Medicaid then, in any case, especially if you shelter your assets. Or conceal them??

    You do have up to three months to resolve the insurance question without paying any penalty/tax.

    Sammy Finkelman (976d9e)

  14. SF: For a single individual, he cost of the required insurance in 2016 is estimated to be $400 a month or $4,800 a year.

    Comment by nk — 6/29/2012 @ 8:57 am

    Where can I find that? I pay $664.00/mo, with a $500.00 deductible and 10% co-pay if in network, 20% if out of network, and that’s an employment-based group plan

    Ask Chief Justice John Roberts. It’s in his opinion, in the footnote running on the bottom of pages 35 and 36. Undoubtedly he got it from the briefs.

    He cites “D. Newman, CRS Report for Congress, Individual Mandate and Related Information Requirements Under PPACA 7, and n. 25 (2011)”

    Which perhaps is on this web site:

    healthreformgps.org

    PPACA = Patient Protection and Affordable Care Act = ObamaCare law.

    It might be D. Newman averaged medical costs across all 50 states, and remember some states go beyond the federal requirement in what they require insurance to include..

    Sammy Finkelman (976d9e)

  15. The Supreme Court needs to limit the taxing power by insisting that, to use it, the tax has got to be called that in the law. It’s an accountability thing — the voters need to know when their representatives vote to tax them.

    Kevin M (bf8ad7)

  16. You know, Sammy, I’ve done a bit of appellate work, and no survey would be made part of the record unless it had been admitted into evidence as expert testimony at trial. I guess any straw is good enough to float a 5-4 opinion with the Supremes, but I had thought better of Roberts. Put not your faith in princes.

    nk (875f57)

  17. At least I was proven right about my positive opinion of Kennedy, for all the good that does.

    nk (875f57)

  18. Why doesn’t Congress pass this bill again, with the word penalty replaced by the word tax throughout the document?

    Think it would pass?

    JD (318f81)

  19. Write your Congressman, JD. Isn’t that what Roberts said?

    nk (875f57)

  20. Are we about to enter another “Impeach Earl Warren” period?

    roy in nipomo (d31d1e)

  21. 18. Why doesn’t Congress pass this bill again, with the word penalty replaced by the word tax throughout the document?

    Think it would pass?

    Comment by JD — 6/29/2012 @ 1:40 pm

    Why doesn’t Congress pass this bill again with the word “penalty” replaced by “tax” throughout?

    Because Roberts did that for them already, that’s why.

    And I know it’ll pass because Speaker of the Court Roberts guided it through the Supreme Legislature on Thursday.

    I know that might appear unduly (or maybe in this case duly) bitter, and maybe it is, but it remains true that the whole point of the left’s partisan approach to judicial appointments is to have an unelected body do the politically unpalatable so the legislators who have to face the voters don’t have to.

    Now that that’s happened in this case, don’t expect the Democrats in Congress to revisit the issue.

    Steve57 (c441a6)

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