Supreme court debate Affodable Care Act

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Re: Supreme court debate Affodable Care Act

Postby Heisenberg » Thu Jun 28, 2012 5:54 pm UTC

firechicago wrote:Almost all of what the Federal government does implicates more than one clause of the Constitution. It's very rare to see a major case that is argued and decided strictly on the basis of the interpretation of a single clause.
Stupid Founding Fathers getting me all confused with their spaghetti code.

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Re: Supreme court debate Affodable Care Act

Postby Ben-oni » Thu Jun 28, 2012 5:56 pm UTC

Having read through the opinions, I'm confused. The Individual Mandate was rejected as a mandate+penalty, but upheld as a tax+exemption. Now, if I remember right, the version of the ACA eventually passed originated in the Senate, did it not? But with the interpretation that the Mandate is a tax, doesn't that make the law unconstitutional by the Origination Clause?

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Re: Supreme court debate Affodable Care Act

Postby Dark567 » Thu Jun 28, 2012 5:59 pm UTC

iamspen wrote:Well, lately, Scalia has had a tendency to justify his decisions by ignoring legal precedent, or using legal precedent that has been outdated for some time. Just the other day, he wrote a little blurb in his dissent of the Arizona immigration decision that cited the criminalization of moving freed slaves across state lines as judicial precedent.
At least generally, Scalia has a large disdain for (super) stare decisis and generally being of the opinion that if a previous court got the constitutional status of a law wrong, that the current court should fix it.
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Re: Supreme court debate Affodable Care Act

Postby kiklion » Thu Jun 28, 2012 6:03 pm UTC

Ben-oni wrote:Having read through the opinions, I'm confused. The Individual Mandate was rejected as a mandate+penalty, but upheld as a tax+exemption. Now, if I remember right, the version of the ACA eventually passed originated in the Senate, did it not? But with the interpretation that the Mandate is a tax, doesn't that make the law unconstitutional by the Origination Clause?


Has there been a link to the text of the opinion and dissident pieces? I didn't see one going back 2 pages and I can't seem to find it. My google fu is bringing me only news articles.

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Re: Supreme court debate Affodable Care Act

Postby Save Point » Thu Jun 28, 2012 6:04 pm UTC

I know lots of conservatives are mad at Roberts, but having started reading the opinion, I really think his introduction and survey of federalism, as well as the merits of a limited government with enumerated powers, is going to be one of the introductory cases for Constitutional Law classes in the future.

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Re: Supreme court debate Affodable Care Act

Postby Ben-oni » Thu Jun 28, 2012 6:05 pm UTC


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Re: Supreme court debate Affodable Care Act

Postby lutzj » Thu Jun 28, 2012 6:06 pm UTC

Less Than Liz wrote:I know lots of conservatives are mad at Roberts, but having started reading the opinion, I really think his introduction and survey of federalism, as well as the merits of a limited government with enumerated powers, is going to be one of the introductory cases for Constitutional Law classes in the future.


Legally, he's probably in the right.
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Re: Supreme court debate Affodable Care Act

Postby Silknor » Thu Jun 28, 2012 6:15 pm UTC

Ben-oni wrote:Having read through the opinions, I'm confused. The Individual Mandate was rejected as a mandate+penalty, but upheld as a tax+exemption. Now, if I remember right, the version of the ACA eventually passed originated in the Senate, did it not? But with the interpretation that the Mandate is a tax, doesn't that make the law unconstitutional by the Origination Clause?


There's other taxes in the bill, so I'm sure they used a House passed bill. Generally when the Senate passes a revenue raising bill "first", they simply take up some discarded House bill, strip everything out, and replace it with their bill. Further detail:
Spoiler:
The Patient Protection and Affordable Care Act will be offered as a substitute amendment to HR3590, the Service Members Home Ownership Tax Act of 2009. Since health care reform legislation would raise revenue, the "Origination Clause" of the Constitution requires that the bill originate in the House of Representatives. The Senate will substitute HR3590 with the text of the Senate bill, the Patient Protection and Affordable Care Act.

Article I, Section 7, clause 1 of the U.S. Constitution is known generally as the "Origination Clause" because it requires that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." This clause is generally understood to prohibit the Senate from originating any measure that includes a provision for raising revenue or proposing any amendment that would raise revenue to a non-revenue measure. However, the Senate can amend a House-originated revenue measure as it sees fit.

In order to comply with this clause, the Senate typically takes a revenue-raising bill that has already been passed in the House of Representatives and amends it (or replaces it entirely) with its own bill. The original bill is often referred to as a "shell bill." It is a part of our legislative process that has been utilized by legislators from both sides of the aisle. For example, a bill on the Alternative Minimum Tax was used as a shell bill for the 2006 Immigration reform, and the Housing and Economic Recovery Act of 2009 was attached to a shell bill that started out as green-jobs legislation. In addition to being relatively common, this procedure is legal, constitutional, and has been upheld by the U.S. Supreme Court.

http://www.leahy.senate.gov/issues_and_ ... 1603953899
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Re: Supreme court debate Affodable Care Act

Postby JudeMorrigan » Thu Jun 28, 2012 6:22 pm UTC

lutzj wrote:
Less Than Liz wrote:I know lots of conservatives are mad at Roberts, but having started reading the opinion, I really think his introduction and survey of federalism, as well as the merits of a limited government with enumerated powers, is going to be one of the introductory cases for Constitutional Law classes in the future.

Legally, he's probably in the right.

As if that matters. I can't tell you the number of people I've seen who are downright pissed that Bush elected "a moderate who swings to the left". It's like the last six years simply didn't happen.

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Re: Supreme court debate Affodable Care Act

Postby Save Point » Thu Jun 28, 2012 6:27 pm UTC

lutzj wrote:
Less Than Liz wrote:I know lots of conservatives are mad at Roberts, but having started reading the opinion, I really think his introduction and survey of federalism, as well as the merits of a limited government with enumerated powers, is going to be one of the introductory cases for Constitutional Law classes in the future.


Legally, he's probably in the right.

I think he is. As someone who dislikes the mandate, I think the Court did an excellent job of following good judicial policy by adhering to and exhausting proper canons of interpretation, and I think that the Chief Justice's vote was cast in favor of constitutionality under the Congress' taxing power as a consequence (see: the syllabus portion where, because it is reasonable to interpret the penalty as a tax, it may be held Constitutional under the taxing and spending power.) Moreover, in simply reading the introduction, he does a very good job of laying out Supreme Court precedent for the Commerce Clause, Taxing and Spending power, and Necessary and Proper Clause. He likewise couches it in terms of the overall importance of federalism, our constitutional order, and the distinction between the federal government's enumerated powers versus the states' residual, or police, powers.

Really, this is the best case for conservatives in a mandate = constitutional scenario, as the dicta, thus far, leaves a lot of wiggle room for justices in the future to avoid giving Congress exceptional latitude under its taxing power.

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Re: Supreme court debate Affodable Care Act

Postby iamspen » Thu Jun 28, 2012 6:38 pm UTC

Dark567 wrote:At least generally, Scalia has a large disdain for (super) stare decisis and generally being of the opinion that if a previous court got the constitutional status of a law wrong, that the current court should fix it.


Then how does he ever rule on anything? Legal arguments are almost universally based on precedent, and a judge saying, "Nope, sorry, that legal thing you're talking about is now magically illegal," is incredibly poor form. Even if he thinks a former decision was wrong, he should cite why it was wrong using other legal precedents, including legal documents, instead of essentially going, "Waaah, I think that should be illegal!" And though I hate the phrase, "judicial activism," because of its ridiculous overuse, isn't ignoring centuries of legal decision in order to bow to your own politics the very definition?

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Re: Supreme court debate Affodable Care Act

Postby Tirian » Thu Jun 28, 2012 6:42 pm UTC

kiklion wrote:
Ben-oni wrote:Having read through the opinions, I'm confused. The Individual Mandate was rejected as a mandate+penalty, but upheld as a tax+exemption. Now, if I remember right, the version of the ACA eventually passed originated in the Senate, did it not? But with the interpretation that the Mandate is a tax, doesn't that make the law unconstitutional by the Origination Clause?


Has there been a link to the text of the opinion and dissident pieces? I didn't see one going back 2 pages and I can't seem to find it. My google fu is bringing me only news articles.


Why use Google when you know that the primary source will be at http://www.supremecourt.gov?

Specifically, http://www.supremecourt.gov/opinions/11 ... 93c3a2.pdf

For myself, I'm surprised at the Medicaid rejection. The Congressional plan struck me as a dick move, but no different from when they forced every state to raise the drinking age to 21 by threatening to withhold highway funds for any holdouts.

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Re: Supreme court debate Affodable Care Act

Postby Ben-oni » Thu Jun 28, 2012 6:52 pm UTC

Silknor wrote:
Ben-oni wrote:Having read through the opinions, I'm confused. The Individual Mandate was rejected as a mandate+penalty, but upheld as a tax+exemption. Now, if I remember right, the version of the ACA eventually passed originated in the Senate, did it not? But with the interpretation that the Mandate is a tax, doesn't that make the law unconstitutional by the Origination Clause?


There's other taxes in the bill, so I'm sure they used a House passed bill. Generally when the Senate passes a revenue raising bill "first", they simply take up some discarded House bill, strip everything out, and replace it with their bill. Further detail:
Spoiler:
The Patient Protection and Affordable Care Act will be offered as a substitute amendment to HR3590, the Service Members Home Ownership Tax Act of 2009. Since health care reform legislation would raise revenue, the "Origination Clause" of the Constitution requires that the bill originate in the House of Representatives. The Senate will substitute HR3590 with the text of the Senate bill, the Patient Protection and Affordable Care Act.

Article I, Section 7, clause 1 of the U.S. Constitution is known generally as the "Origination Clause" because it requires that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." This clause is generally understood to prohibit the Senate from originating any measure that includes a provision for raising revenue or proposing any amendment that would raise revenue to a non-revenue measure. However, the Senate can amend a House-originated revenue measure as it sees fit.

In order to comply with this clause, the Senate typically takes a revenue-raising bill that has already been passed in the House of Representatives and amends it (or replaces it entirely) with its own bill. The original bill is often referred to as a "shell bill." It is a part of our legislative process that has been utilized by legislators from both sides of the aisle. For example, a bill on the Alternative Minimum Tax was used as a shell bill for the 2006 Immigration reform, and the Housing and Economic Recovery Act of 2009 was attached to a shell bill that started out as green-jobs legislation. In addition to being relatively common, this procedure is legal, constitutional, and has been upheld by the U.S. Supreme Court.

http://www.leahy.senate.gov/issues_and_ ... 1603953899

Not that I don't accept it, but I find the constitutionality of this surprising. It would seem to gut the Origination Clause completely, and I'm surprised any court would uphold such maneuverings as valid.

As for todays ruling, I'm greatly displeased. Of the law itself, I don't care — that's what Congress is for, after all. But that a single justice could do such violence to the law and constitution. Four claimed the Mandate to be valid under the commerce clause, and four claimed it to be invalid altogether. Only the Chief Justice took the liberty of rewriting the law so liberally. The implications of such a precedent are staggering. As the [strike]majority[/strike] dissenting opinion so clearly pointed out, there's a difference between what Congress did and what Congress could have done. That a single justice can rewrite law is horrifying.

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Re: Supreme court debate Affodable Care Act

Postby Vaniver » Thu Jun 28, 2012 6:53 pm UTC

John Hasnas's The Myth of the Rule of Law is worth reading whenever a controversy like this comes around.
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Re: Supreme court debate Affodable Care Act

Postby Save Point » Thu Jun 28, 2012 6:57 pm UTC

Ben-oni wrote:
Silknor wrote:
Ben-oni wrote:Having read through the opinions, I'm confused. The Individual Mandate was rejected as a mandate+penalty, but upheld as a tax+exemption. Now, if I remember right, the version of the ACA eventually passed originated in the Senate, did it not? But with the interpretation that the Mandate is a tax, doesn't that make the law unconstitutional by the Origination Clause?


There's other taxes in the bill, so I'm sure they used a House passed bill. Generally when the Senate passes a revenue raising bill "first", they simply take up some discarded House bill, strip everything out, and replace it with their bill. Further detail:
Spoiler:
The Patient Protection and Affordable Care Act will be offered as a substitute amendment to HR3590, the Service Members Home Ownership Tax Act of 2009. Since health care reform legislation would raise revenue, the "Origination Clause" of the Constitution requires that the bill originate in the House of Representatives. The Senate will substitute HR3590 with the text of the Senate bill, the Patient Protection and Affordable Care Act.

Article I, Section 7, clause 1 of the U.S. Constitution is known generally as the "Origination Clause" because it requires that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." This clause is generally understood to prohibit the Senate from originating any measure that includes a provision for raising revenue or proposing any amendment that would raise revenue to a non-revenue measure. However, the Senate can amend a House-originated revenue measure as it sees fit.

In order to comply with this clause, the Senate typically takes a revenue-raising bill that has already been passed in the House of Representatives and amends it (or replaces it entirely) with its own bill. The original bill is often referred to as a "shell bill." It is a part of our legislative process that has been utilized by legislators from both sides of the aisle. For example, a bill on the Alternative Minimum Tax was used as a shell bill for the 2006 Immigration reform, and the Housing and Economic Recovery Act of 2009 was attached to a shell bill that started out as green-jobs legislation. In addition to being relatively common, this procedure is legal, constitutional, and has been upheld by the U.S. Supreme Court.

http://www.leahy.senate.gov/issues_and_ ... 1603953899

Not that I don't accept it, but I find the constitutionality of this surprising. It would seem to gut the Origination Clause completely, and I'm surprised any court would uphold such maneuverings as valid.

As for todays ruling, I'm greatly displeased. Of the law itself, I don't care — that's what Congress is for, after all. But that a single justice could do such violence to the law and constitution. Four claimed the Mandate to be valid under the commerce clause, and four claimed it to be invalid altogether. Only the Chief Justice took the liberty of rewriting the law so liberally. The implications of such a precedent are staggering. As the [strike]majority[/strike] dissenting opinion so clearly pointed out, there's a difference between what Congress did and what Congress could have done. That a single justice can rewrite law is horrifying.

Four claimed it was valid under the Commerce Clause, four claimed it was invalid, and five found it valid under the Taxing and Spending power. You're framing this in the oddest way. It's not as if Roberts unilaterally found the law constitutional; he merely tipped the scales. This is, you realize, how voting works, yes?

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Re: Supreme court debate Affodable Care Act

Postby TheGrammarBolshevik » Thu Jun 28, 2012 6:57 pm UTC

Ben-oni, who rewrote anything?
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Re: Supreme court debate Affodable Care Act

Postby TheGrammarBolshevik » Thu Jun 28, 2012 6:59 pm UTC

iamspen wrote:Then how does he ever rule on anything? Legal arguments are almost universally based on precedent, and a judge saying, "Nope, sorry, that legal thing you're talking about is now magically illegal," is incredibly poor form. Even if he thinks a former decision was wrong, he should cite why it was wrong using other legal precedents, including legal documents, instead of essentially going, "Waaah, I think that should be illegal!"

What makes you think he doesn't do that?
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Re: Supreme court debate Affodable Care Act

Postby Ben-oni » Thu Jun 28, 2012 7:13 pm UTC

Less Than Liz wrote:Four claimed it was valid under the Commerce Clause, four claimed it was invalid, and five found it valid under the Taxing and Spending power. You're framing this in the oddest way. It's not as if Roberts unilaterally found the law constitutional; he merely tipped the scales. This is, you realize, how voting works, yes?

Ginsburg et al's interpretation accepts the law at face value, using a legal framework consistent with the intent of the Congress that passed the ACA. Roberts is the only justice on the court that upheld the mandate while rejecting that framework. Since his is the majority opinion and the Ginsburg opinion is not, I must conclude that, somehow, his legal theory, which is his alone, sets legal precedent.

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Re: Supreme court debate Affodable Care Act

Postby KestrelLowing » Thu Jun 28, 2012 7:17 pm UTC

I feel like this is all about the 'rose by any other name' kind of problem though. You can call something a camel, but if it acts like a horse, looks like a horse, and smells like a horse, it's a horse. So this is a tax because it acts, looks, and smells like a tax.

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Re: Supreme court debate Affodable Care Act

Postby Silknor » Thu Jun 28, 2012 7:30 pm UTC

Ben-oni wrote:
Less Than Liz wrote:Four claimed it was valid under the Commerce Clause, four claimed it was invalid, and five found it valid under the Taxing and Spending power. You're framing this in the oddest way. It's not as if Roberts unilaterally found the law constitutional; he merely tipped the scales. This is, you realize, how voting works, yes?

Ginsburg et al's interpretation accepts the law at face value, using a legal framework consistent with the intent of the Congress that passed the ACA. Roberts is the only justice on the court that upheld the mandate while rejecting that framework. Since his is the majority opinion and the Ginsburg opinion is not, I must conclude that, somehow, his legal theory, which is his alone, sets legal precedent.


His opinion is the majority opinion where and only where it is joined by at least 4 other justices (by definition). It's not controlling (precedent setting) when it's just him thinking something. 5 justices agree that the individual mandate is constitutional as written under the power to levy taxes.

CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, an opinion with respect to Part IV, in which JUSTICE BREYER and JUSTICE KAGAN join, and an opinion with respect to Parts III–A, III–B, and III–D.


In Justice Ginsberg opinion, you can see that she and Justices Sotomayor, Breyer, and Kagan join those parts where Roberts is announcing "the opinion of the Court":
I therefore join Parts I, II, and III–C of THE CHIEF JUSTICE’s opinion.
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Thu Jun 28, 2012 7:56 pm UTC

How do people feel about the fact that the "swing vote" in this case was Roberts? It seems to me that he was in a tough box, because any vote he made that ended in a 5-4 decision was going to be considered to have been a highly political decision by a large number of people.

--------
Ghostbear wrote:As someone who wants to see the law upheld, I'm expecting disappointment. I saw some chatter about people thinking it might get upheld because some of the liberal justices have seemed happy lately, while Scalia seemed unhappy.. but I think that's just people reading far too much into things.

I'll be quite pleasantly surprised if I'm wrong.

I am quite pleasantly surprised to be proven wrong!

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Re: Supreme court debate Affodable Care Act

Postby kiklion » Thu Jun 28, 2012 7:56 pm UTC

@Tirian Because I am just so used to using google I didn't even think of going to their website. Then I followed your link, went to their website and could not find it. Probably because I am using the wrong terminology at times. Either way I was able to read it through the direct links provided, thank you and the other guy.

Heisenberg wrote:I didn't realize there was precedent for saying "Congress says it's a penalty, but we think it's a tax." That's a new one on me.

What's especially strange is that the Court was convinced that this wasn't a tax earlier, because if it was a tax (which it is now) they wouldn't have been able to rule on it until 2014.


With regards as to how they were able to rule and ignore the Anti-Injunction Act, I understand that the funds were treated as a penalty here because congress stated it to be a penalty. Congress also specifically stated in the Anti-Injunction Act that it only applied to taxes. Therefore the justices may make a ruling. This makes sense to me.

The fact that it was ruled to be constitutional under taxation powers and not commerce clause also makes sense to me. Both how commerce clause does not apply as it would be creating the event that needs to be regulated, and how even though they are labeling this a fine, it is a tax being applied as a tax to raise revenue. Even though an effect of the tax is to increase health insurance participation, the funds raised also go towards paying for parts of the health care bill (I think). Comparing this to the reasons the child labor tax was decided to be a penalty instead; it was punitive, it was not received by the IRS, it requires known intent, and that it prevents the IRS from using a few of it's powers that are punitive it does not come off as a penalty, but as a revenue method for the bill. While simply proving that IF this was a tax, the previous methods used to declare a tax a penalty would not work in this situation does not mean that this is a tax, I still agree with his overall conclusion. Particularly because I don't know any other methods to distinguish a penalty from a tax.

What I don't get is why the government was able to ask the supreme court to make a ruling taking into consideration that it was a tax and not a penalty. If it is even brought before the court because it is assumed these words are selected deliberately, then why would the government be able to change the wording of the law in a way that changes the meaning of the law without requiring another passage through the legislature? I believe he tries to defend this on page 39, but I don't agree with his conclusion there. The difference being that the ACA penalty is used to fund the rest of the law. Here it is just a punitive fee assessed on people who still have old windows, on purpose or not. While I agree that interpreting it as a tax would not be imposing a tax through judicial legislation due to its methods already being in the law, if we have already concluded that Congress is intentional in it's selection of wording, and that changing the wording of this line changes it's constitutionality, then it should go back through Congress to ensure that the constitutional wording is also wanted by Congress. Since changing the meaning from a penalty to a tax changes its constitutionality, it may also change how it affects and is affected by other rulings and laws.

Overall I'm happy. On one hand I don't support the government subsidizing healthcare, on the other hand if they are going to subsidize healthcare through company benefits, they should also subsidize healthcare for those who are unemployed or under-employed. I am also glad that they stated that it would not be Constitutional under the commerce clause as I agree that it would be viewing it in an overly broad light. It's just that last bit and a little bit of procedural actions that bothered me. Though even if it went as I wanted it to, I would hope that the end result would be the same as it currently is.

Origination Clause:

Spoiler:
Silknor wrote:
Ben-oni wrote:Having read through the opinions, I'm confused. The Individual Mandate was rejected as a mandate+penalty, but upheld as a tax+exemption. Now, if I remember right, the version of the ACA eventually passed originated in the Senate, did it not? But with the interpretation that the Mandate is a tax, doesn't that make the law unconstitutional by the Origination Clause?


There's other taxes in the bill, so I'm sure they used a House passed bill. Generally when the Senate passes a revenue raising bill "first", they simply take up some discarded House bill, strip everything out, and replace it with their bill. Further detail:
[spoiler]The Patient Protection and Affordable Care Act will be offered as a substitute amendment to HR3590, the Service Members Home Ownership Tax Act of 2009. Since health care reform legislation would raise revenue, the "Origination Clause" of the Constitution requires that the bill originate in the House of Representatives. The Senate will substitute HR3590 with the text of the Senate bill, the Patient Protection and Affordable Care Act.

Article I, Section 7, clause 1 of the U.S. Constitution is known generally as the "Origination Clause" because it requires that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." This clause is generally understood to prohibit the Senate from originating any measure that includes a provision for raising revenue or proposing any amendment that would raise revenue to a non-revenue measure. However, the Senate can amend a House-originated revenue measure as it sees fit.

In order to comply with this clause, the Senate typically takes a revenue-raising bill that has already been passed in the House of Representatives and amends it (or replaces it entirely) with its own bill. The original bill is often referred to as a "shell bill." It is a part of our legislative process that has been utilized by legislators from both sides of the aisle. For example, a bill on the Alternative Minimum Tax was used as a shell bill for the 2006 Immigration reform, and the Housing and Economic Recovery Act of 2009 was attached to a shell bill that started out as green-jobs legislation. In addition to being relatively common, this procedure is legal, constitutional, and has been upheld by the U.S. Supreme Court.

http://www.leahy.senate.gov/issues_and_ ... 1603953899

[/spoiler]

That seems like bullshit. While I don't understand why there is even an Origination Clause in the first place, being that it is there then it should be followed in spirit or if everyone really is against it, than the process should be started to eliminate it. I understand amending the constitution takes time but blatantly flouting the law like that bothers me. Whats the point of building in difficult measures to modify a law, if instead people just ignore it?

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Re: Supreme court debate Affodable Care Act

Postby Dark567 » Thu Jun 28, 2012 8:02 pm UTC

iamspen wrote:Then how does he ever rule on anything? Legal arguments are almost universally based on precedent, and a judge saying, "Nope, sorry, that legal thing you're talking about is now magically illegal," is incredibly poor form. Even if he thinks a former decision was wrong, he should cite why it was wrong using other legal precedents, including legal documents, instead of essentially going, "Waaah, I think that should be illegal!" And though I hate the phrase, "judicial activism," because of its ridiculous overuse, isn't ignoring centuries of legal decision in order to bow to your own politics the very definition?
He does it by reading the law and relevant texts concerning that law and deciding on the case. I don't think he completely ignores previous legal documents, but the idea is that you don't consider previous SCOTUS precedent to be some overriding factor(i.e. like the way lower courts are required to uphold previous SCOTUS precedent).
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Re: Supreme court debate Affodable Care Act

Postby Save Point » Thu Jun 28, 2012 8:13 pm UTC

kiklion wrote:What I don't get is why the government was able to ask the supreme court to make a ruling taking into consideration that it was a tax and not a penalty. If it is even brought before the court because it is assumed these words are selected deliberately, then why would the government be able to change the wording of the law in a way that changes the meaning of the law without requiring another passage through the legislature? I believe he tries to defend this on page 39, but I don't agree with his conclusion there. The difference being that the ACA penalty is used to fund the rest of the law. Here it is just a punitive fee assessed on people who still have old windows, on purpose or not. While I agree that interpreting it as a tax would not be imposing a tax through judicial legislation due to its methods already being in the law, if we have already concluded that Congress is intentional in it's selection of wording, and that changing the wording of this line changes it's constitutionality, then it should go back through Congress to ensure that the constitutional wording is also wanted by Congress. Since changing the meaning from a penalty to a tax changes its constitutionality, it may also change how it affects and is affected by other rulings and laws.

I'm not sure I understand your question, but let's see if I can give it a shot:

First, counsel is allowed to argue in the alternative, effectively asking the Court to consider one argument rather than another if it finds the original argument lacking. The Court deigns to do so because you are supposed to presume statutes are constitutional and exhaust all inquiries to avoid unconstitutionality. In Part III-C, the majority also mentions that, when a statute can be construed to have two meanings, it is necessary to inquire into whether the alternative reading is reasonable and, if so, if it is constitutional or not. In this case, the government asked the Court to consider the penalty as a tax if it was to find the Commerce Clause and Necessary and Proper Clause argument unpersuasive, which ended up being the situation.

The reason why it was not a tax under the Anti-Injunction Act is because both the ACA and AIA are creatures of statute, and Congress has the power to dictate what words mean in relation to one another in that context. This is because we presume that Congress intends each word to have meaning. When answering constitutional questions (i.e., not statute-to-statute), however, the Court takes a substance over form approach. If it looks like a duck (tax) and quacks like a duck (tax), then it's a duck (tax) even if you call it a dog (penalty.) This analysis takes place, specifically, on page 35, where the majority outlines the characteristics of taxes versus penalties, and then applies it to the ACA.

Here, the requirement is found in the tax code and is "assessed in the same manner as taxes." It becomes a taxable event upon filing your tax return. Payment is to the IRS and, as a consequence of your payment, generates revenue. The statute explicitly states that the IRS may not impose traditional criminal sanctions and levies for non-compliance, so none of the "traditional negative legal consequences" apply, and results in a minimal burden. It's likewise reasonable, in the majority's opinion, to interpret the language that you "shall" purchase insurance or pay a penalty to be a tax on your decision not to purchase insurance. Thus, it is functionally a tax and should be analyzed as such.

Edited for clarification.
Last edited by Save Point on Thu Jun 28, 2012 8:37 pm UTC, edited 8 times in total.

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Re: Supreme court debate Affodable Care Act

Postby Dark567 » Thu Jun 28, 2012 8:20 pm UTC

Less Than Liz wrote:The reason why it was not a tax under the Anti-Injunction Act is because both the ACA and AIA are creatures of statute, and Congress has the power to dictate what words mean in relation to one another in that context. This is because we presume that Congress intends each word to have meaning. When answering constitutional questions, however, the Court takes a substance over form approach. If it looks like a duck (tax) and quacks like a duck (tax), then it's a duck (tax) even if you call it a dog.
Huh. I'm thinking an Originalist would call it a dog.
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Re: Supreme court debate Affodable Care Act

Postby TheGrammarBolshevik » Thu Jun 28, 2012 8:21 pm UTC

I'm finding it really hard to see how the view that the Constitution should be interpreted according to its original meaning would have any bearing on that question.
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Re: Supreme court debate Affodable Care Act

Postby Heisenberg » Thu Jun 28, 2012 8:30 pm UTC

Yeah, the calling it a tax bit seems more reasonable the more I think about it. The Court is saying "You can't change the language to get around the law." For instance, poll taxes are prohibited, and you can't just call them a poll fine instead. A more extreme example would be the provision against slavery holds even if you pass a law that effectively allows slavery without actually including the word "slave" in the text.

Personally, I think it quacks like a capitation, but I'm still trying to sort this out.

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Re: Supreme court debate Affodable Care Act

Postby bentheimmigrant » Thu Jun 28, 2012 8:48 pm UTC

Dark567 wrote:
bentheimmigrant wrote:If Scalia votes to uphold the law, I will change my avatar to him for a week. He's the most overtly political judge on the court.
I know its a day late, but I have to disagree with this. I think Thomas, Alito or even Kagan are all more overtly political. Scalia is an ideologue, not a partisan. He votes the way he does because of beliefs in the way society should be structured, not to score points against the other side, or to help particular politicians win elections.

You can disagree with his societal vision of course, but I think you have his motivations wrong.

I would say it's the overt part that bothers me. In the Arizona case he dissented and used the executive order about illegals as part of his reasoning - it was only just before the ruling, and long after the arguments, so it was nothing to do with the case - and not using anything more than his political (not civic) reasoning. He was the one that brought up the broccoli question, which is irrelevant and nothing more than a dog whistle. It seems more like he's busy ready blogs than precident, and it shows in what he writes and says.

Now, he may not be as partisan as Thomas, but at least that man stays (mostly) quiet.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Thu Jun 28, 2012 8:49 pm UTC

Heisenberg wrote:Yeah, the calling it a tax bit seems more reasonable the more I think about it. The Court is saying "You can't change the language to get around the law." For instance, poll taxes are prohibited, and you can't just call them a poll fine instead. A more extreme example would be the provision against slavery holds even if you pass a law that effectively allows slavery without actually including the word "slave" in the text.

Personally, I think it quacks like a capitation, but I'm still trying to sort this out.


But those are cases of taking something that purportedly constitutional and calling it unconstitutional. This is the reverse. It's like saying that a payment attached to voting could be a fine by making it illegal to vote (perfectly legal, so long as it's not discriminatory on race, color, sex, or age over 18), even if it were called a poll tax.

Essentially, Roberts's logic comes down to "If there's a way it could be constitutional, it is constitutional, even if that wasn't the way it was argued." Which is a bias in favor of more expansive government, which is the opposite direction from where I want to go.

The only way I see out is to reduce it to the absurd. Tax abortions. Tax atheism. Tax everything that the left holds dear, and watch it all be constitutional.

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Re: Supreme court debate Affodable Care Act

Postby Save Point » Thu Jun 28, 2012 8:52 pm UTC

Steroid wrote:Essentially, Roberts's logic comes down to "If there's a way it could be constitutional, it is constitutional, even if that wasn't the way it was argued." Which is a bias in favor of more expansive government, which is the opposite direction from where I want to go.

It was argued.

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Re: Supreme court debate Affodable Care Act

Postby Heisenberg » Thu Jun 28, 2012 8:53 pm UTC

Steroid wrote:Essentially, Roberts's logic comes down to "If there's a way it could be constitutional, it is constitutional, even if that wasn't the way it was argued." Which is a bias in favor of more expansive government, which is the opposite direction from where I want to go.

It was argued that it was a tax in the court, it just wasn't presented that way in the bill passed by Congress.
bentheimmigrant wrote:He was the one that brought up the broccoli question, which is irrelevant and nothing more than a dog whistle.
It ended up being pretty relevant. According to the scotusblog it influenced Roberts' decision.
In his view, the mandate creates activity, rather than regulating it. If the Court were to interpret the Commerce Clause the way that the government does, he contended, it would allow Congress to regulate all kinds of new things – including forcing people to buy vegetables (with no specific reference to broccoli, however). “That is not the country” the Founding Fathers envisioned, he proclaimed.

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Re: Supreme court debate Affodable Care Act

Postby TheGrammarBolshevik » Thu Jun 28, 2012 8:55 pm UTC

Steroid wrote:But those are cases of taking something that purportedly constitutional and calling it unconstitutional.

Not a relevant distinction. The important point is that when the Constitution says something about Fs, whether or not something is an F depends on whether it has the substantial properties of Fs, and not whether it's statutorily labeled an F. So a poll fine would have the substantial properties of a poll tax and be considered as a poll tax in constitutional jurisprudence, and a tax penalty has the substantial properties of a tax and is treated as a tax under constitutional jurisprudence. The only reason that one is "pulled in" to the category of unconstitutional things while the other is pulled into the category of constitutional things is that the Constitution bans poll taxes but enables taxes.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Thu Jun 28, 2012 8:56 pm UTC

Hmm. . . I listened to the orals and I don't remember the solicitor general conceding it was a tax. I thought he specifically called it a penalty. Can anyone find me the argument?

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Re: Supreme court debate Affodable Care Act

Postby Heisenberg » Thu Jun 28, 2012 9:00 pm UTC

The blog said it was the Solicitor General's third argument, after (1) Commerce Clause and (2) Necessary and Proper.

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Re: Supreme court debate Affodable Care Act

Postby bentheimmigrant » Thu Jun 28, 2012 9:02 pm UTC

There were three days of arguments, right? I seem to remember one of them specifically being about whether it was a tax or a mandate.
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Re: Supreme court debate Affodable Care Act

Postby Save Point » Thu Jun 28, 2012 9:02 pm UTC

Steroid wrote:Hmm. . . I listened to the orals and I don't remember the solicitor general conceding it was a tax. I thought he specifically called it a penalty. Can anyone find me the argument?

Brief. (page 52.)
Reply Brief. (page 21.)

EDIT: sigh, fine. Transcript Link. Discussion starts around page 45, page 47 is where it gets juicy.

Note: Oral arguments are indicative of what Justices find most probing, and you don't often make it to all of your arguments, particularly not your under-briefed ones.
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Re: Supreme court debate Affodable Care Act

Postby TheGrammarBolshevik » Thu Jun 28, 2012 9:04 pm UTC

Ghostbear wrote:How do people feel about the fact that the "swing vote" in this case was Roberts? It seems to me that he was in a tough box, because any vote he made that ended in a 5-4 decision was going to be considered to have been a highly political decision by a large number of people.

If he had voted the other way, people probably would have regarded Kennedy as the swing vote.
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Re: Supreme court debate Affodable Care Act

Postby Heisenberg » Thu Jun 28, 2012 9:12 pm UTC

Less Than Liz wrote:Reply Brief. (page 21.)
They even mention Bailey v. Drexel on page 22.

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Re: Supreme court debate Affodable Care Act

Postby Save Point » Thu Jun 28, 2012 9:14 pm UTC

Heisenberg wrote:
Less Than Liz wrote:Reply Brief. (page 21.)
They even mention Bailey v. Drexel on page 22.

I was just pointing out where the argument starts, but yeah, you'll find that the majority opinion has mirror sources (for obvious reasons.)

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Re: Supreme court debate Affodable Care Act

Postby Dark567 » Thu Jun 28, 2012 9:15 pm UTC

TheGrammarBolshevik wrote:I'm finding it really hard to see how the view that the Constitution should be interpreted according to its original meaning would have any bearing on that question.
Technically, I meant textualism, meaning that the law should be interpreted as its ordinary meaning. Basically the corollary to Originalism in interpreting law instead of the constitution.

bentheimmigrant wrote:I would say it's the overt part that bothers me. In the Arizona case he dissented and used the executive order about illegals as part of his reasoning - it was only just before the ruling, and long after the arguments, so it was nothing to do with the case - and not using anything more than his political (not civic) reasoning. He was the one that brought up the broccoli question, which is irrelevant and nothing more than a dog whistle. It seems more like he's busy ready blogs than precident, and it shows in what he writes and says.

Now, he may not be as partisan as Thomas, but at least that man stays (mostly) quiet.
I don't know the specifics of the Arizona case, but I have always thought his writing was sharp, and although sometimes has minor non-sequiturs is usually very intellectual and thought provoking. His case for Originalism I have always thought to be fairly convincing and others defense of other constitutional interpretations fall flat(although, that's not to say Originalism is always interpreted to conservative, see Hugo Black).

Actually, I doubt Scalia reads blogs; I recall one time him saying he didn't know how to use a computer.
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If he had voted the other way, people probably would have regarded Kennedy as the swing vote.

There have been plenty of votes that have broke 5-4 with Kennedy not being the swing vote;Scalia, Roberts and Alito have all swung to the liberal side in certain cases(goften regards to free speech, federal power and discrimination respectively).
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