Tuesday, December 14, 2010

Healthcare Law and Politics: Mandate is a tax

Conservatives are celebrating Judge Henry Hudson's ruling that the healthcare mandate is unconstitutional. They are delighted that he rejected the notion that it is in fact a tax.

Part of Hudson's analysis was that the legislative history and the scheme designed was an exercise under the Commerce Clause:

It is clear from the text of Section 1501 that the underlying regulatory scheme was conceived as an exercise of Commerce Clause powers. This is supported by specific factual findings purporting to demonstrate the effect of the health care scheme on interstate commerce. In order for the noncompliance penalty component to survive constitutional challenge, it must serve to effectuate a valid exercise of an enumerated power-here the Commerce Clause. [at p. 36]

But I find it ironic that no one ON THE RIGHT has in fact denied it is a tax.
Conservatives know that the mandate is a tax. They attacked it as a tax.
They only stopped attacking it as such when they realized they were undermining their legal case against it.

This is how dishonest the Conservative pundits are today. They tailor their arguments for/against a major piece of legislation to better position themselves in a lawsuit.

Of course it is a tax. The President and his administration can be said to have either lied or spun. It doesn't matter in a legal context.

If the government does something that is spelled out legally, it doesn't matter what name is given to it: fee, fine, mandate, etc. If it's a tax. It's a tax.

What difference would it make if we call our FICA monies paid to the government: contributions, premiums, fees, or FICA tax. What matters is whether it is applicable to a broad class and involuntary as a general matter.

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