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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Tenn. AG reveals ICE released thousands of ‘murderers and rapists’ from detention centers into US streets Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: Fifth Circuit Rules Obamacare Individual Mandate Unconstitutional Source: 5th Circuit Court URL Source: http://www.ca5.uscourts.gov/opinions/pub/19/19-10011-CV0.pdf Published: Dec 18, 2019 Author: Jennifer Walker Elrod, Circuit Judge Post Date: 2019-12-18 19:35:45 by nolu chan Keywords: None Views: 2743 Comments: 16 Fifth Circuit Rules Obamacare Individual Mandate Unconstitutional http://www.ca5.uscourts.gov/opinions/pub/19/19-10011-CV0.pdf Texas et al v United States et al, 19-10011 (5th Cir, 18 Dec 2019) Opinion Before KING, ELROD, and ENGELHARDT, Circuit Judges. Opinion by JENNIFER WALKER ELROD, Circuit Judge. A dissenting opinion was filed by King, Circuit Judge. At 44: In NFIB, the individual mandate—most naturally read as a command to purchase insurance—was saved from unconstitutionality because it could be read together with the shared responsibility payment as an option to purchase insurance or pay a tax. It could be read this way because the shared responsibility payment produced revenue. It no longer does so. Therefore, the most straightforward reading applies: the mandate is a command. Using that meaning, the individual mandate is unconstitutional. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: nolu chan (#0) a tax is a tax, is a tax, what part of tax is not understood? paraclete  posted on  2019-12-18   20:06:36 ET  Reply   Trace   Private Reply   #2. To: paraclete (#1) a tax is a tax, is a tax, what part of tax is not understood? Taxation for the purpose of behavior control is also unconstitutional, and the mandate/penalty/tax on people for not buying insurance is clearly in place for the purpose of behavior control. Pinguinite  posted on  2019-12-18   20:28:15 ET  Reply   Trace   Private Reply   #3. To: paraclete (#1) a tax is a tax, is a tax, what part of tax is not understood? In the instant case, the part about a supposed tax which is not able to generate any revenue. nolu chan  posted on  2019-12-18   23:45:05 ET  Reply   Trace   Private Reply   #4. To: nolu chan (#3) seen those before, they really don't work paraclete  posted on  2019-12-19   7:46:28 ET  Reply   Trace   Private Reply   #5. To: Pinguinite (#2) Taxation for the purpose of behavior control is also unconstitutional, and the mandate/penalty/tax on people for not buying insurance is clearly in place for the purpose of behavior control. What about a tax reduction for behavioral control? Contributing to charity is a deduction which lowers your taxes, right? How about this? What if Obamacare stipulated that everyone must pay the penalty, but those with health insurance get a tax credit equal to the penalty? misterwhite  posted on  2019-12-19   9:43:57 ET  Reply   Trace   Private Reply   #6. To: misterwhite (#5) How 'bout this...if this should go before the US Sup Ct., and challenged that it is indeed unconstitutional; that those who have paid this penalty be permitted to sue on grounds this mandate was fraudulent. goldilucky  posted on  2019-12-19   17:13:19 ET  Reply   Trace   Private Reply   #7. To: paraclete (#4) seen those before, they really don't work That what the court said. nolu chan  posted on  2019-12-19   18:02:07 ET  Reply   Trace   Private Reply   #8. To: Pinguinite (#2) Taxation for the purpose of behavior control is also unconstitutional, Not really. Taxes are put in place to discourage behavior, and tax breaksare put into place to encourage other behavior. there's nothing unconstitutional about that. Vicomte13  posted on  2019-12-20   10:13:24 ET  Reply   Trace   Private Reply   #9. To: nolu chan (#0) Obamacare had two parts -- an individual mandate to purchase health insurance and a penalty(tax) if you didn't. Because those two parts were tied together thereby giving the citizens a choice, the USSC ruled that Obamacare was constitutional. When Congress removed the penalty(tax) in in the Tax Cuts and Jobs Act of 2017, all that was left in Obamacare was the individual mandate -- meaning that the individual mandate to purchase health insurance was now a command, not a choice. Because of that, the mandate was ruled unconstitutional. misterwhite  posted on  2019-12-20   11:45:14 ET  Reply   Trace   Private Reply   #10. To: misterwhite (#9) Obamacare had two parts -- an individual mandate to purchase health insurance and a penalty(tax) if you didn't. In the original SCOTUS decision, the Court a rule of constitutional construction which held that among competing possible interpretations, an interpretation held to be constitutional will be taken. Thus, Roberts CJ found that the individual was unconstitutional as a penalty, but constitutional as a tax, and adopted the interpretation that it was a tax. Subsequent legislation reduced any possible penalty to zero, eliminating any possibility of the so-called tax to generate any revenue. With the Obamacare law having been amended to eliminate the revenue generating provision, the interpretation of the individual mandate as a tax was eliminated, and it reverted to being a penalty under the commerce clause. However, as a penalty under the commerce clause, it was clearly unconstitutional and a nullity. nolu chan  posted on  2019-12-20   18:18:01 ET  Reply   Trace   Private Reply   #11. To: nolu chan (#10) Thus, Roberts CJ found that the individual was unconstitutional as a penalty, but constitutional as a tax, and adopted the interpretation that it was a tax. I understand. But the Democrats presented and passed Obamacare as containing no new taxes. Sure, there was a small penalty imposed on those unpatriotic Americans not participating in this wondrous program, but those were probably Republicans anyways. Justice Roberts was correct, BUT it was not within his power to change legislation to make it constitutional. It should have been sent back to Congress with the instruction to change the wording from "penalty" to "tax" such that the American people were presented with the truth. If it passed with that wording, so be it. misterwhite  posted on  2019-12-21   10:32:32 ET  Reply   Trace   Private Reply   #12. To: misterwhite (#11) Justice Roberts was correct.... I would just note that it took John Roberts plus four more to speak for the Court. Prior to the opinion, I wrote an article asserting that the Obamacare penalty should be struck down as an unconstitutional violation of the commerce clause. I did not consider calling a penalty a tax. But I must admit that they did follow a stated rule of interpretation to a somewhat mystical conclusion. nolu chan  posted on  2019-12-21   11:13:20 ET  Reply   Trace   Private Reply   #13. To: nolu chan (#12) I did not consider calling a penalty a tax. I think they ended up calling it a tax penalty. Or a penalty tax. Something like that. "Prior to the opinion, I wrote an article asserting that the Obamacare penalty should be struck down as an unconstitutional violation of the commerce clause." I don't see how the Commerce Clause comes into play. Congress has the power to tax. Nothing to stop them from saying, "If you don't do this, you pay a higher tax". For example, if you don't contribute to charity, you pay a higher tax. Right? What if Congress raised everyone's taxes by $1000, but gave a tax credit of $1000 to everyone who paid for health insurance? Same thing, right? Just worded differently. misterwhite  posted on  2019-12-21   12:13:47 ET  Reply   Trace   Private Reply   #14. To: nolu chan (#12) I would just note that it took John Roberts plus four more to speak for the Court. John Roberts plus four liberal justices. His was the swing vote. No need to mention the other 8. misterwhite  posted on  2019-12-21   12:17:58 ET  Reply   Trace   Private Reply   #15. To: misterwhite (#13) I don't see how the Commerce Clause comes into play. Congress has the power to tax. Nothing to stop them from saying, "If you don't do this, you pay a higher tax". For example, if you don't contribute to charity, you pay a higher tax. Right? A tax is to collect revenue. A tax that is punative is unconstitutional; see Scalia in dissent below. A penalty may be imposed for some act deemed unlawful under the interstate Commerce Clause. The back and forth on it was like arguing how many angels can stand on the head of a pin. Roberts and Scalia exchanged opinions. AG Verrilli on whether it was a tax or a penalty makes clear that he was on both sides, depending on which was convenient at the moment. AG Verrilli at 48-49: [AG VERRILLI] 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. CHIEF JUSTICE ROBERTS: Why didn't Congress call it a tax, then? GENERAL VERRILLI: Well -CHIEF JUSTICE ROBERTS: You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax? GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. Roberts at 37: In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996); see also United States v. La Franca, 282 U. S. 568, 572 (1931) (“[A] penalty, as the word is here used, is an exaction imposed by statute as punishment for an unlawful act”). While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. A penalty is a punishment for an unlawful act or omission. Roberts reasoned that the "mandate" could be upheld if failure to comply was not unlawful, so that it was not a penalty. Scalia et al dissent at 18-19: Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes amonetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922). So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall … ensure that the individual … is covered under minimum essential coverage.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f … an applicable individual … fails to meet the requirement of subsection (a) … there is hereby imposed … a penalty.” §5000A(b)(emphasis added). And several of Congress’ legislative “findings” with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. §18091(2)(A) (“The requirement regulates activity …”); §18091(2)(C) (“The requirement … will add millions of new consumers to the health insurance market …”); §18091(2)(D) (“The requirement achieves near-universal coverage”); §18091(2)(H) (“The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market”); §18091(3) (“[T]he Supreme Court of the United States ruled that insuranceis interstate commerce subject to Federal regulation”). Scalia et al dissent at 20-21: Quite separately, the fact that Congress (in its own words) “imposed … a penalty,” 26 U. S. C. §5000A(b)(1), for failure to buy insurance is alone sufficient to renderthat failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act.” Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.” 1 J. Kent, Commentaries on American Law 436 (1826). We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as “license” (License Tax Cases, 5 Wall. 462 (1867)) or “surcharge” (New York v. United States, supra.). But we 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.” That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: Those with religious objections or who participate in a “health care sharing ministry,”§5000A(d)(2); those who are “not lawfully present” in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: Those who cannot afford coverage, §5000A(e)(1); who earn too little income to require filing a tax return, §5000A(e)(2); who are membersof an Indian tribe, §5000A(e)(3); who experience only short gaps in coverage, §5000A(e)(4); and who, in the judgment of the Secretary of Health and Human Services, “have suffered a hardship with respect to the capability to obtain coverage,” §5000A(e)(5). If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone. In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor General assures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “[i]f [those subject to the Act] pay the tax penalty, they’re in compliance with the law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These self serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear. It is worth noting, moreover, that these assurances contradict the Government’s position in related litigation. Shortly before the Affordable Care Act was passed, the Commonwealth of Virginia enacted Va. Code Ann. §38.2–3430.1:1 (Lexis Supp. 2011), which states, “No resident of [the] Commonwealth … shall be required to obtain or maintain a policy of individual insurance coverage exceptas required by a court or the Department of Social Services … .” In opposing Virginia’s assertion of standing to challenge §5000A based on this statute, the Government said that “if the minimum coverage provision is unconstitutional, the [Virginia] statute is unnecessary, and if the minimum coverage provision is upheld, the state statute isvoid under the Supremacy Clause.” Brief for Appellant in No. 11–1057 etc. (CA4), p. 29. But it would be void under the Supremacy Clause only if it was contradicted by a federal “require[ment] to obtain or maintain a policy of individual insurance coverage.” Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual … will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal Revenue Service (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” Petitioners’ Minimum Coverage Brief 53. The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not. See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible pen- alty for failure to make campaign-finance disclosures);§5761(c) (IRS-collectible penalty for domestic sales of to- bacco products labeled for export); §9707 (IRS-collectible penalty for failure to make required health-insurancepremium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a “tax” was in fact a penalty. “[I]f the concept of penalty meansanything,” we said, “it means punishment for an unlawfulact or omission.” Id., at 224. See also Lipke v. Lederer, 259 U. S. 557 (1922) (same). Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v),(f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scope—a feature that would bequite extraordinary for taxes. Scalia et al dissent at 24: The last of the feeble arguments in favor of petitioners that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United States, 511 U. S. 600, 618 (1994). Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that apenalty is not a penalty for want of an express scienter requirement. And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax. For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Scalia et al dissent at 26-28: III The Anti-Injunction Act There is another point related to the Individual Mandate that we must discuss—a point that logically should have been discussed first: Whether jurisdiction over the challenges to the minimum-coverage provision is precluded by the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a) (2006 ed.). We have left the question to this point because it seemed to us that the dispositive question whether the minimum-coverage provision is a tax is more appropriately addressed in the significant constitutional context of whether it is an exercise of Congress’ taxing power. Having found that it is not, we have no difficulty in deciding that these suits do not have “the purpose of restraining the assessment or collection of any tax." The Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for purposes of the Anti-Injunction Act, see Brief for Petitioners in No. 11–398 (Anti-Injunction Act), but is a tax for constitutional purposes, see Petitioners’ Minimum Coverage Brief 52–62. The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax: confusing the question of what Congress did with the question of what Congress could have done. What qualifies as a tax for purposes of the Anti-Injunction Act, unlike what qualifies as a tax for purposes of the Constitution, is entirely within the control of Congress. Compare Bailey v. George, 259 U. S. 16, 20 (1922) (Anti-Injunction Act barred suit to restrain collections under the Child Labor Tax Law), with Child Labor Tax Case, 259 U. S., at 36–41 (holding the same law unconstitutional as exceeding Congress’ taxing power). Congress could have defined “tax” for purposes of that statute in such fashion as to exclude some exactions that in fact are “taxes.” It might have prescribed, for example, that a particular exercise of the taxing power “shall not be regarded as a tax for purposes of the Anti-Injunction Act.” But there is no such prescription here. What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of thesophists. nolu chan  posted on  2019-12-21   14:08:21 ET  Reply   Trace   Private Reply   #16. To: nolu chan (#15) A penalty may be imposed for some act deemed unlawful under the interstate Commerce Clause ... … or any other Article I, Section 8 power. Scalia was right -- it's a penalty, not a tax. misterwhite  posted on  2019-12-22   18:31:25 ET  Reply   Trace   Private Reply   Top • Page Up • Full Thread • Page Down • Bottom/Latest

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