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In reply to the discussion: Can the President still say that the mandate is not a "tax"?? [View all]bigtree
(86,292 posts)88. he says that IF they view it as a tax, they have an obligation to leave the law alone
That wasn't his central and overriding argument, by any means; but a fall back one where he trumps the Justices who can't abide by his other arguments -- like the Commerce clause provisions and authority.
He's being pressed by Scalia here who isn't going to accept his other reasoning. Verrilli's saying that even opponents in Congress acknowledged and highlighted its tax element, and that the Court must recognize the law as within Congress' authority; if ONLY on that basis ALONE.
Verrilli:
to Scalia: "The president said it wasn't a tax increase because it ought to be understood as an incentive to get people to have insurance. I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not."
to Kagan: "The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power."
"It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's -- not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis."
and more from Scalia:
JUSTICE SCALIA: You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?
GENERAL VERRILLI: It -- it used its powers together to solve the problem of the market not -
JUSTICE SCALIA: Yes, but you didn't need that.
GENERAL VERRILLI -- providing affordable coverage -
JUSTICE SCALIA: You didn't need that. If it's a tax, it's only -- raising money is enough.
GENERAL VERRILLI: It is justifiable under its tax power.
JUSTICE SCALIA: Okay. Extraordinary.
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I think that calling it a "Pyrrhic" victory means that it may have a negative effect
razorman
Jul 2012
#25
You have a point. Of course, both sides will try to "spin" to their best advantage.
razorman
Jul 2012
#134
"Its positive attributes can be touted." - in today's "liberally-biased media"???
zbdent
Jul 2012
#34
If I don't get health insurance and pay the tax what do I get? You just stated:
kelly1mm
Jul 2012
#39
No, I don't get a health insurance policy by paying the tax. By definition you only pay the tax if
kelly1mm
Jul 2012
#74
The President won the battle for legislation he tacked his presidency on, but Roberts gave...
Poll_Blind
Jul 2012
#5
Some legal scholars suggest Roberts produced an essentially conservative opinion with a...
Poll_Blind
Jul 2012
#17
It is a penalty affecting a small number of people who could afford to buy health insurance but
Skidmore
Jul 2012
#10
The Mandate isn't a tax. The Penalty is. If you follow the law, you incur no tax.
MjolnirTime
Jul 2012
#13
Again, while five Justices said it was constitutional, only one said it was a tax.
Nye Bevan
Jul 2012
#37
"A rose by any other name would smell as sweet." A tax by any other name would smell as...
Tierra_y_Libertad
Jul 2012
#31
I think Dems best response is - "Huge tax increase"? Fearmongering hyperbole. Check the facts...
pinto
Jul 2012
#35
You are a brave person; your op is spot on (if it looks like a tax, quacks like a tax, and walks
sad sally
Jul 2012
#70
It's regressive in that a .001% upper income will pay the same as a 10% upper income..
Fumesucker
Jul 2012
#77
A sovereign currency government does not need to increase taxes to spend.
girl gone mad
Jul 2012
#100
But then, it would have failed and you would have something else to complain about.
kentuck
Jul 2012
#81
he says that IF they view it as a tax, they have an obligation to leave the law alone
bigtree
Jul 2012
#88
There's a difference between a tax, and a penalty imposed under the authority to tax
markpkessinger
Jul 2012
#91
What is at issue now is not what the Solicitor argued, but what the Court actually held n/t
markpkessinger
Jul 2012
#97
In other words, would it have been better to have the entire bill declared unconstitutional?
kentuck
Jul 2012
#101
I don't understand by people want to echo the current RW talk radio rant about "new taxes"...
NYC_SKP
Jul 2012
#133
Hey, why don't you just take it up with Nancy Pelosi, who used the term last week?
NYC_SKP
Jul 2012
#132