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To: hdl who wrote (493623)6/30/2012 4:47:43 PM
From: Little Joe2 Recommendations  Read Replies (1) | Respond to of 793928
 
The Dissent on the tax issue. I think they are right. Not that it matters.

Scalia, Kennedy, Thomas, and Alito Dissent: 'We Cannot Rewrite the Statute to Be What It Is Not'

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Chief Justice Joh

Roberts held in his majority opinion today that Obamacare's individual mandate may be considered a constitutional tax rather than an unconstitutional mandate.

Justices Scalia, Kennedy, Thomas, and Alito forcefully disagree with Roberts in their dissent. "[W]e cannot rewrite the statute to be what it is not," the four Justices write. "[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a 'penalty.' Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a 'penalty.'"

The dissenting Justices also argue that "judicial tax-writing is particularly troubling," since the Constitution requires tax bills to originate in the House of Representatives, "the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off."

[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry. [...]

The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
lj



To: hdl who wrote (493623)7/15/2012 9:49:18 PM
From: bob887 Recommendations  Respond to of 793928
 
"I don’t think that ObamaCare violated the Origination Clause, given that the original House Bill did impose a tax to fund health care"

Not true. The original house version of H.R.3590 was a tax credit for veterans who were first-time home buyers. It passed 416-0 in the House. It was 8 pages long and had nothing whatsoever to do with healthcare. In its place, Sen Harry Reid introduced SA2786 which started with "strike all after enacting clause and insert the following":[2000 pages of Obamacare]. You can look it up yourself on Thomas.gov under 111th congress.

While the senate does have the authority to "amend" revenue raising bills, it cannot "replace" them with whatever they want. This has been ruled by the court in Flint Stone (1911). Senate amendments must be "Germane to the subject matter" of the House originated revenue raising bill. This makes sense because if the senate had unlimited amendment power [the power to replace a house revenue bill with completely unrelated revenue provisions], why would the Constitution even specify at all that revenue raising bills must originate in the house?

Additionally, Munoz-Florez stated that the court has a "duty" to review origination clause violations and not defer to congressional independence.

This origination clause dates back to the original Magna Carta in 1215 at Runnymede where king John had to agree that all new taxes required the agreement of the common counsel. Madison argued in the Federalist papers that it was an additional safeguard against the "absurd" argument that the newly granted federal power of taxation would be construed as unlimited.

It is a solid constitutional argument. The biggest problem is that this has happened before, and the Senate has never been "caught". The practice has become an unconstitutional precedent in the Senate and is waiting for review by the courts.


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