Can someone help me understand this?
1) The Constitution, as amended, gives the federal government the right to levy taxes uniformly across the states, and also to tax income.
2) The federal gasoline tax is neither levied uniformly across states nor is it a tax on income. Thus it must be justified under something other than the explicit taxing powers set forth in the Constitution.
3) I’ve always sort of presumed that the missing justification is provided by the Commerce Clause.
4) In other words, the right to levy a gasoline tax seems to be dependent on the Commerce Clause.
5) By the same reasoning, the right to levy a tax on not-having-health-insurance would seem to be dependent on the Commerce Clause.
6) But John Roberts says explicitly that the Commerce Clause can not be used to justify a tax on not-having-health-insurance.
7) How, then, can a tax on not-having-health insurance possibly be constitutional? It’s not levied uniformly across states, it’s not a tax on income, and we have the Chief Justice’s word that it can’t be justified by the Commerce Clause. Whence, then, the constitutional authority to levy such a tax?
I think in #7 you mean to say “How, then, can a tax on gasoline possibly be constitutional?”
I think Roberts and the other 4 conservative-appointed justices on the court would cite the activity/inactivity dichotomy. The Commerce Clause can regulate activity but cannot compel activity, as they say. So if you choose to purchase gasoline, then they can tax it, but they can’t make you buy gasoline. (Ditto for health insurance)
I always found the dichotomy a bit dubious because my inactivity (on health insurance) can affect your activity (and vice versa), so the compulsion for regulation is the same.
Richard Epstein expressed a similar confusion in the NYT today, a good read.
http://www.nytimes.com/2012/06/29/opinion/a-confused-opinion.html?_r=1&ref=todayspaper
Also, there seems to be no effective difference between simply mandating that all Americans buy insurance under the authority of the commerce clause and saying that Americans who don’t buy insurance have to pay a tax provided that the tax was high enough (imagine that the “tax” on those who didn’t buy insurance was 1 million or even one trillion dollars instead).
A naive answer would be that the federal gas tax is actually uniformly levied, it does not appear this way because states tack on state taxes. I could not find a state with a lower gas tax than the federal one ?
Also, apparently the clause of ‘uniformly’ is meant to mean that states cannot opt-out.
But is the Federal income tax a ‘uniform tax’? Higher income households pay higher rates and some lower income households pay no federal tax at all. Are you arguing that the only constitutional tax is a uniform lump sum poll tax?
Greg Mankiw pointed out that it’s a bit strange for many (particularly economists) to pretend to be so upset about being taxed for not carrying health insurance because in fact people are penalized by the tax code ALL the time for their acts. As he points out:
“consider two proposals:
A person is required to have health insurance. If a person is in violation, he pays a $1000 fine. The revenue from the fines is rebated lump-sum to all taxpayers.
A person is not required to have health insurance, but those with health insurance receive a $1000 tax credit. The cost of the tax credit is financed with a lump-sum tax on all tax payers.”
http://gregmankiw.blogspot.com/2007/12/on-health-insurance-mandates.html
Tax credits have always been at the heart of the Republicans alternatives to the ACA
http://articles.cnn.com/2008-04-29/politics/mccain.healthcare_1_health-care-mccain-health-insurance?_s=PM:POLITICS
Can you argue that these two policies are at all different? And aren’t the latter type of proposal is pretty much what Republicans (John McCain for instance) where offering as alternatives to the ACA.
If you keep reading Mankiw’s post it points out that the Obama ‘penalty’ people are trying to whip up fear about is, in fact actually setup very much like option 2 above: “everyone would get a $7,500 or $15,000 deduction and the “punishment” for not getting health insurance would be to lose the deduction.”
I take you to be a pretty consistent libertarian, so I could well imagine your response to be that we should have only a poll tax and abolish all tax credits, but (unless you see a flaw in Mankiw’s logic) you must admit that the Republican ‘outrage’ at this tax (but not at tax credits) contains some hypocrisy.
In what respect is the federal tax on gasoline is not uniform throughout the states?
http://www.commonsensejunction.com/notes/gas-tax-rate.html
The federal gasoline tax is neither levied uniformly across states nor is it a tax on income.
It is uniform at 18.4 cents a gallon. You’re thinking state fuel taxes, they’re the ones that vary.
In 1884, the US Supreme Court ruled that uniformity in taxes meant that “taxes affected by the provision must function “‘with the same force and effect in every place where the subject of it is found.’ ”
It does not mean the exact same tax everywhere, just the same impact to account for differences in areas.
John Roberts wrote in page 24 of his opinion…
“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.”
HT Greg Mankiw.
That’s your answer, regardless of whether or not you or I agree with it.
What Bearce said. “Uniformity” means only that “whatever plan or method Congress adopts for laying the tax … must be made operative throughout the United States,” Knowlton v. Moore, 178 U.S. 41, 84 (1900). Anyway, nobody worries about the uniformity clause any more. Some years ago we had a tax that treated Alaskan oil differently from every other kind of oil and the Supreme Court ruled unanimously that this did not violate the uniformity clause because Congress can devise special rules for geographically isolated problem. U.S. v. Ptasynski, 462 U.S. 74 (1983).
The gas tax is an excise tax. Excise taxes are specifically authorized as a part of the taxing power of Art I Sec 8. The problems with this mandate tax in points 5-7 still stand though.
The rule about “uniformity” among the States is a rule about DIRECT taxes, ie. per-head taxes and/or taxes on the ownership of property. By contrast, the gasoline tax is an EXCISE tax, ie. a tax on the sale or production of a specific good. Congress is explicitly allowed to levy the excise tax — this power does not derive from the Commerce Clause. The only restriction is that Federal excise taxes must be uniform throughout the United States.
On pages 40-41 of his opinion, the Chief Justice answered your question exactly. My computer is having trouble copying the formatting from the opinion text, but I’ve put the link below for you to read it yourself. Its on pages 46-47 of the PDF file.
Essentially, what the Supreme Court has held for two centuries is that the requirement to apportion taxes among the states only applies to capitation taxes. Apparently, under Supreme Court precedent, the direct taxes references in the text of the Constitution are the same as capitation taxes. This was later expanded (in the 1880s) to include taxes on income and personal property, but then the part about income was overruled by the 16th amendment. Other taxes, the Chief Justice cites the case of a federal carriage tax in 1796, do not need to be apportioned among the states.
You may not agree with it, it may make no sense, but such is how the law and the Constitution are currently interpreted.
http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
Zachary, what uniformity rule do you have in mind? The only uniformity clause I’m aware of is the one that applies to excise taxes: “The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises… but all Duties, Imposts and Excises shall be uniform throughout the United States” (Article I, section 8, clause 1). Is there any other tax uniformity rule in the Constitution?
I think Alan Gunn’s answer is correct. The uniformity clause is ambiguous, but the Supreme Court has interpreted it to mean that the tax must be applied in a uniform fashion throughout the United States; that requirement is satisfied by the tax being 18.4 cents/gallon everywhere in the U.S.
The uniformity clause (Article One, Section 8 of the Constitution) is not limited to “direct” taxes; it applies to all taxes. You are thinking of the requirement that “direct” taxes be apportioned among the states according to population (Article One, Sections 2 and 9).
False premise.
@Alan Gunn:
No, uniformity applies to “Duties, Imposts and Excises” but congress is granted the right to “collect Taxes, Duties, Imposts and Excises”, which clearly implies congress can set some kinds of taxes which are non-uniform.
“These are my sons Matthew, Mark, Luke, and John. They can all drive the pick up truck but Mark, Luke and John can only drive on paved roads.” I suggest Matthew can drive on dirt roads.
The leading uniformity clause cases in the Supreme Court involve inheritance taxes, income taxes, and inheritance taxes. In none of those cases is there even a suggestion that the clause does not apply to taxes. I can see how one might infer that from reading the language of the Constitution, but it’s the Court’s reading that matters. While the uniformity clause has little practical effect, the one thing about it that is quite clear in terms of Supreme Court precedent is that it applies to all taxes. We lawyers like to repeat ourselves, and it’s a mistake to think that “taxes, duties, imposts and excises” refers to four distinct things, just as it would be a mistake to think that an order to “cease and desist” means that you had to do (or stop doing)two things.
First sentence above should have read “inheritance taxes, income taxes, and excise taxes ….”
Didn’t you answer your own question some time ago with a blog post entitled “Is Legal Reasoning an Oxymoron?”
As others have pointed out, the gas tax IS uniform. The real comparison with Obamacare would be, is it constitutional to pretend to levy a tax (under guise of a penalty) on NOT buying gas.
@ Patrick R. Sullivan–
“The real comparison with Obamacare would be, is it constitutional to pretend to levy a tax (under guise of a penalty) on NOT buying gas.”
Yes.
Remember what the definition of constitutional is. Unconstitutional does not mean “unprecedented”, it does not mean “I don’t like this law”. It means “what the Supreme Court rules on it”.
The Court has settled the issue.
Btw, the PPACA (as I understand it) provides a tax break to everyone except those who don’t purchase health insurance who meet certain conditions. You want an exact analogy? The child tax credit.
I’m just an economics undergraduate student, but I think that your question is not answerable. As others have stated, the gas tax is an excise tax and is in fact levied uniformly.
The Affordable Care Act’s penalty-that-is-a-tax-but-really-just-a-penalty is not a tax either. It doesn’t meet the definition of a tax. dictionary.com defines a tax as:
The administration even came out and said that, regardless of the ruling, it is not a tax but a penalty. Don’t they know you shouldn’t bite the hand that feeds?
You know, as a side comment, I gotta laugh at all of this…
My teacher made note once of how woefully ignorant judges are of economic principles. That’s very true as I’ve seen, as well as the stupid questions and statements the justices have made.
However, I think these past two entries have shown how dim some economists can be when it comes to legal theory. It is a very rigorous discipline, something perhaps economists need to incorporate into their regimen?
Roberts argued that the penalty could have been defined as a flat tax on everyone with an offsetting credit to those who obtain the right kind of insurance. However the flat tax would be a head tax, not an income tax. Such a tax is not permitted under the Constitution. That’s one factor Roberts overlooked.
Roberts rewrote the law, saying that the penalty was equivalent to an income tax with an offsetting credit. Roberts did not demonstrate that equivalence. I claim that this task is mathematically impossible.
Feel free to prove me wrong by showing us a marginal rate and credit phase-out schedule that matches the penalty dollar for dollar in all situations across all incomes. I claim that you may be able to get close, but you’ll never reach an exact match. I further claim that as you get close to a match, the marginal tax rates will skyrocket. That will create a different constitutional defect: a possible violation of the takings clause.
However the flat tax would be a head tax, not an income tax.
A flat tax is a regressive form of an income tax. Head tax is where everyone pays the same amount, not the same rate.
A head or poll tax is not unconstitutional. The 24th Amendment simply states that the right to vote cannot be denied because of a failure to pay such a tax.
A poll tax is the one tax that just about everyone agrees is a “Capitation, or other direct, Tax.” So a Federal poll tax would have to be apportioned among the states on the basis of population to be constitutional. Article One, Section 9.
@Alan Gunn, I entirely accept your correction re: uniformity. My point (I hope still correct) was that Steve’s blog post seemed to assume that the Gas Tax must be levied across states on the basis of population. Since it isn’t, he concluded that it derives its legitimacy from the Commerce Clause. My original comment simply noted that Congress always had the explicit power to levy a federal excise tax – such as on gasoline – just so long as said tax was level across States.
There is a difference between uniformity (for indirect taxes, like the gasoline tax) and apportionment (for direct taxes. like a head tax or an income tax). Uniformity requires that the the laws be the same across the states. Apportionment requires that revenues be in proportion to population. Different things.
@ Bearce–
I understand your frustration, especially since econ_student just cited dictionary.com (!) in his/her argument about whether or not it’s a tax.
I’ll give you everyone a hint: it’s a tax. The Supreme Court has said so. Also, it’s constitutional. This is no longer a debate that needs to be had. It’s time to move on.
KS,
Remember what the definition of constitutional is…. It means “what the Supreme Court rules on it”.
Really? So segregation is both constitutional and unconstitutional. This is why the law is such a mess. Lawyers and people who “think” about the law can believe two mutually exclusive things at the same time.
@Ken
No, segregation is not both constitutional and unconstitutional. It was constitutional for decades, until the Supreme Court reversed its prior ruling and declared that it was unconstitutional. This doesn’t change the fact that it WAS constitutional for decades, however.
Another example: Montana passed a campaign finance law nearly a century ago, and this law was in effect and was considered to be unquestionably constitutional until the Citizens United ruling. On Monday, the Supreme Court declared that this law was unconstitutional. That doesn’t mean that we have to go back and undo everything that was already done, it means that the law must change going forward. If in the future the composition of the court changes, there may be votes to overturn this decision and allow campaign finance laws such as these again.
The Constitution is not a document that provides absolutely clear and unambiguous answers to every question (unless you are Justice Thomas – his opinions seem to imply that he has a magical connection to the clear and unambiguous answer to every question). As it currently stands, nine fallible men and women interpret what the Constitution means, and what they say is what is constitutional. Sometimes, as in the case of segregation, they make a morally incorrect judgement (at least I would argue that it was a morally incorrect judgement), but what they rule is how the government is expected to interpret the constitution. Its also why not every decision is unanimous. If a vote had gone the other way in this health care case, then the law would have been declared unconstitutional. Until we can find some way to develop an infallible court or a way to determine the constitutionality of a law or action without question, there will always be human influence on the meaning of the Constitution.
The logic of your question would also suggest that a child tax credit is also unconstitutional because it is tax on childlessness and not income. But it has long been accepted that the government can use deductions and credits for various activities in the calculation of your taxable income. I don’t see why you can’t get a deduction for having health insurance when you can get one for having a dependent, buying energy efficient windows, etc.
@ Daniel
“Also, there seems to be no effective difference between simply mandating that all Americans buy insurance under the authority of the commerce clause and saying that Americans who don’t buy insurance have to pay a tax provided that the tax was high enough (imagine that the “tax” on those who didn’t buy insurance was 1 million or even one trillion dollars instead)”.
For those who think that there is no difference between the two, I urge you to read Robert’s opinion. Under the justification of the commerce clause, the federal government can bring their full weight to bear, such as prosecuting and putting in jail those who fail to buy insurance. The tax justification is much more limited, since not only is it still lawful to not buy insurance, but the tax cannot be overly punitive,such as your million dollar tax or the Child Labor Tax cited by Roberts, which taxed companies 10% of their profit if they knowingly hired children. Such an obviously punitive nature will then be seen as a penalty.
@ Paul–
Agreed! There are probably a thousand examples of a tax credit if you purchase a product X.
@ Ken–
Yes. Segregation was constitutional, then it was not. Just like: women voting was illegal, then it was not. Remember, “constitutional” does not also mean “eternally unchanging” either. You guys lost this one.
The many attempts to deconstruct Roberts’ opinion provided by today’s contributors are interesting and better reasoned than the opinion itself. Similarly, the discussion of the hypocrisy and wrong-headedness of the tax code is enlightening and, of course, dispiriting. I continue to feel, however, as I did a few days ago, that this line of discussion is a diversion from what has actually happened. The Roberts decision codifies the shift in our culture that has been steadily advancing for more than eighty years. A majority of Americans appear ready to surrender a large portion of their economic freedom and, by extension, their fundamental liberty in exchange for a life that promises an absence of want. The requirement for the self-reliance that has defined citizenship in the US since its founding has been waived. Roberts understands this change and chose not to resist it. Perhaps he also knows that the new order he has ligitimized will end especially badly for those least able to protect themselves–those who believe that the leaders of their government can accomplish that which neither government in any form nor any other human agency has ever been able to achieve: the elimination of the most fundamental requirements for survival as a free people: personal initiative, personal responsibility and personal accountability. As collectivist dreams consume an increasing share of our country’s wealth, not the Supreme Court, not the Congress, and not the President can restore what has been lost.
I understand your frustration, especially since econ_student just cited dictionary.com (!) in his/her argument about whether or not it’s a tax.
Oh no, don’t misunderstand me. I’m not frustrated, I was amused…sorta.(Nor was the comment directed at econ_student, it just coincidentally appeared after his/her name.)
I’m an economics student myself and one of the things we frequently go over is how judges and lawyers are frequently ignorant basic economic fundamentals. However, prior to this I was considering pre-law, so I have some background in legal theory. Reading this blog and some of the comments within the past few days demonstrated that this may be an area where economists are lacking, which is a shame because it could compliment it well.
Some here though have shown incredible aptitude in reading the opinions of the court and trace certain reasons the judges have given for the law’s specific elements (the mandate and medicare provision) based on former rulings. That’s very good.
The constitution is NOT AT ALL the text you may read online or even in a book. That will at best give you a superficial understanding of it. It has evolved considerably over time and in order to truly understand it you need to be heavily familiar with former court case rulings (they’re endless!) and the founding father’s original intent.
I’ll give you everyone a hint: it’s a tax. The Supreme Court has said so. Also, it’s constitutional. This is no longer a debate that needs to be had. It’s time to move on.
KS and Vald,
What changed in the constitution to make it such that segregation was “constitutional”, then “not constitutional”?
women voting was illegal
In many places it was and in many places it wasn’t. It was also constitutional to make voting for women illegal. You know why it’s unconstitutional to deny women the vote today? A change was made to the constitution. Not so much for segregation. In other words, either Plessy v Ferguson or Brown v Board of Education was decided wrong.
If you believe that both were decided correctly and in accordance with the constitution, then you lack logical capacity. Things either have property P or they don’t, but I remember very clearly, KS, just how little you understand how negation works. So I understand that you lack logical capacity.
“If you believe that both were decided correctly and in accordance with the constitution, then you lack logical capacity. Things either have property P or they don’t, but I remember very clearly, KS, just how little you understand how negation works. So I understand that you lack logical capacity.”
Ignoring your weak attempts at an insult, yes, I would agree that something can have the property P or not P at a given time. However, something can have the property P, and then at a later time, be not P. Case example: I’m hungry. Two hours later, I’m not.
Constitutional does not mean “eternally unchanging” either, my friend.
“What changed in the constitution to make it such that segregation was “constitutional”, then “not constitutional”?”
Well, my friend, what the judges interpret to be ‘constitutional’ is not solely a function of the exact literal words in the document itself. You may (a la Scalia) disagree with that, but that’s just the way it is. They also rely on precedent and the context of the era. Case in point: there is nothing in the Constitution which holds the number of judges in the court to be 9, or even gives the Court the power of judicial review. That’s all precedent right there.
Err, that’s a typo, and should read “I would agree that something can not have the property P or not P at the same time”
@Ken
Although you don’t seem to like my answer, I already explained how segregation was first constitutional, and later constitutional. No, the text of the Constitution did not change, but the MEANING of the constitution did change. This change occurred because of Article III of the Constitution, which created and defined the jurisdiction of the federal court system. In the case Marbury v. Madison, the federal court declared that it had the power to judge the constitutionality of laws.
As I stated in my earlier post, the meaning of the Constitution does change based on who is interpreting it. This is not illogical, this is the system as created. Congress created a Court made up of nine justices to interpret the Constitution and define its limitations. This is not an exact science. In the case over the PPACA, the vote was 5-4, with two different reasonings that different justices would have upheld the law (commerce clause and tax clause). Their decision on the matter is final, until such time as the Court decides to revisit the question and declare otherwise. Does this mean that the four dissenting justices were acting unconstitutionally, or misunderstood the constitution, or are anti-American? I would think not, and I doubt that you would say so, considering that you probably agreed with them. But then why did they come to a different conclusion? Because there is no crystal clear answer to the question of the constitutionality of the PPACA. For Justice Thomas, the fact that there is no clear answer means that it is clearly unconstitutional, but for everyone else, it was based on the Court’s precedents.
“If you believe that both were decided correctly and in accordance with the constitution, then you lack logical capacity.”
The logic you imply here asks for THE single meaning of the Constitution, which I have already argued does not exist. The Constitution, a relatively vague document, does not answer every question that could ever face this country unambiguously, so the nation leaves it to the nine sitting Supreme Court justices to determine the scope of the Constitution. Until we can come up with an infallible way to determine the Constitutionality of something, there will continue to be alterations and reversals and all of the things that you define as lacking in logical capacity.
*Also, fyi, Ken and KS: The number of justices is determined by Congress. This is why President Franklin Roosevelt could consider the idea of a court-packing plan. If Congress would pass a law, it could increase the number of justices as high as it wanted. Decreasing is more difficult, only because justices cannot be removed but by impeachment. They can decrease the number as much as they want, but that would only mean that as justices died or retired, they would not be replaced until the new number was achieved.
Thanks to Neil and several others for setting me straight on what “uniformity” means.
But then I have a followup question: If the gas tax is uniform, despite the fact that residents of some states use much more gasoline than others, does it then follow that a federal tax on “owning a vacation home on Cape Cod” (levied without regard to the primary residence of the taxpayer) couunts as uniform?
Not so much for segregation. In other words, either Plessy v Ferguson or Brown v Board of Education was decided wrong.
Ken…seriously,
The whole ruling of Brown v. Board of Education was that the Plessy v. Ferguson case ruling was incorrect and segregation was unconstitutional under the 14th amendment. Plessy’s ruling argued that segregation wasn’t unconstitutional as long as the facilities provided between whites and blacks were ‘separate, but equal.’ Brown’s ruling was that this separate but equal idea was inherently unequal because it denoted an inherent sense of psychological inferiority amongst children of black parents who had to go to another school based on skin color.
Like others have said, the interpretation of the constitution changes over time. Why is that? Not one of the founding father’s who wrote it could have predicted the evolving circumstances their nation would be forced to confront as time moves on. It is also, as vald stated, a vague document.
The mandate penalty is a tax on income, just a conditional one. It is levied as a percentage of AGI (1%-2.5%). I don’t see any difference between the mandate penalty and the home mortgage interest deduction. In both cases I pay more money to the government for not buying a financial product the government wants me to buy.
I think I can answer the tax question by getting you to answer the following:
1) You are about to spin a fair coin, and you have bet £100 on heads. Are you the sort of person who thinks you have a 50% chance of £200 and a 50% chance of £0, or are you the sort of person who thinks you have a 100% chance of £200 or a 100% chance of £0 but you just don’t know which yet?
2) If I have a friend who works every other day in a bank (7 days a week, and pretend he never has any holiday), I might one day, after several months of not seeing him, go into the bank to see if he is… there available for lunch. Having no idea if he is at work on the same day that I am in the city, I could easily conclude that I have a 50-50 chance of stepping in the bank and seeing him there. Have I a 50-50 chance this time?
Steve,
I am pretty sure that such a property tax is considered a direct tax, so it would violate the apportionment restriction, if that still applies after the 16th.
The problem is–we are economists. From an economic perspective, the direct versus indirect tax distinction is a distinction without a difference.
Look at this from the IRS education site.
http://www.irs.gov/app/understandingTaxes/student/whys_thm04_les04.jsp
@vald–
“Although you don’t seem to like my answer, I already explained how segregation was first constitutional, and later constitutional. No, the text of the Constitution did not change, but the MEANING of the constitution did change.”
Couldn’t agree with you more. The fact is the Constitution is a living document whose meaning and interpretation changes and evolves according to the social, political, and economic context of the current era. This idea — that there is a singular, eternal, and unalterable meaning of the Constitution as originally written which can never be questioned and never change — is a bit, um, naive.
It boggles the mind all the more that some people could think the founding fathers, in the late 18th century, could write a document that provides all the relevant answers to events that happened more than 200 years later. It’s almost like blind idol worship at that point.
“Also, fyi, Ken and KS: The number of justices is determined by Congress.”
I know. Ken had previously argued that the court-packing plan was unconstitutional. I was just pointing out how something he believes is constitutional and within the original words of that document (i.e., the number of justices on the Court) is not.
@ Brian–
“I don’t see any difference between the mandate penalty and the home mortgage interest deduction. In both cases I pay more money to the government for not buying a financial product the government wants me to buy.”
Yup. The only difference is the particular product X, and the almost poisonous culture surrounding political discussions on health care.
Remember when Reagan called Medicare “the end of freedom as we know it?”
I could be wrong, but as far as I know, slavery hasn’t made a comeback, so I’m going to guess Reagan was spouting the conservative hysteresis on this one.
As for the tax on a house on Cape Cod, Ptasynski (Comment 9) pretty clearly says that it would be “uniform.” If they can make special rules for oil from Alaska, they can probably make special rules for houses on Cape Cod.
Whether that tax would be a “direct” tax is a question no one can answer with confidence. Except for poll taxes, there has never been any agreement on what taxes are “direct.” If it is “direct” it would have to be apportioned, as the 16th Amendment exempts only income taxes from the apportionment requirement. (A tax on incomes from houses on Cape Cod would plainly not have to be apportioned.)
Even worse, it seems to be the first federal tax that levies on persons for merely existing in a foreign country.
Obviously, you have to use gasoline in the USA to pay the gas excise tax. And you have to have an income in a foreign country to be liable for income tax, with an offset of $90K or foreign income tax paid.
Obamacare will tax expatriate tourists and temporary residents in a foreign country, whether or not they have any income or wealth, and, in addition, will not deliver any Medicare, Medicaid or Obamacare benefits to them.
Obama wants to institute a tax on blogging things that are critical of the supreme court ruling. Steven, you should be careful what you write if you don’t want to go bankrupt.
This is from John Cochrane: (http://johnhcochrane.blogspot.com/2012/06/my-2-cents-on-supreme-court-and.html)
“If the Federal government has the power to adjust your taxes based on whether you buy an electric car, cover your roof with solar panels, use 1 btu of petroleum to create 1 btu of corn ethanol, take out a mortgage on your mansion, hire a nanny to take care of your kids, and all the other silly things it does in the tax code, it surely has the power to adjust your taxes based on whether you buy health insurance.”
I’d say this is pretty much settled. I do expect some whining still.
It seems that it’s widely accepted here that it is a tax. Let me at least explain the reasoning for calling it a penalty. I could accept it as a tax if everyone who buys insurance received a tax credit. The law could be written so that the dollar amount would be the same, but the way that it is collected would be different. Just simply requiring someone to pay something for NOT having insurance seems like a penalty to me.
While I realize that the end result is the same, I believe the way it is achieved changes what it is called. I’m more than willing to accept it as a tax if someone can show me the error of my logic.
There seems to be two broad views as to why the constitution is.
One is that there actually IS a constitution – it has an exact meaning, and exists as an unchanging entity (until ammended). The supreme court is there to try to establish what this reality is. Under this interpretatiopn everything IS either constitutional or unconstitutional. The supreme court tries to establish this, and sometimes gets it wrong and has to change its mind. Thus segragation was never actually constitutional, but was falsely deemed to be so for a while (or perhaps is constitutional and falsely deemed not to be so now).
The other is that the constitution IS what the suprenme court says it is. The constitution thus changes with the supreme court rulings.
Practically, this makles no difference. Philosophically, it does.
As KS notes, the important question is not “is it really a tax?”. The important question is “does the law see it as a tax?”
And the USSC has just ruled that it does.
Law is a blunt instrument. There may be a thousand shades of grey in deciding what is or is not a tax. The law, being blunt, doesn’t accomodate all those shades. Sometimes it makes a determination one disagrees with. I think it plain that in this case the mandate is not properly seen as a tax, and that court’s logic is wrong. But that is not how the law sees it. Legally the mandate is now a tax. Any *legal* argument based on a different premise is now *wrong*.
Legally OJ Simpson never murdered anyone.
@ Ken B–
I would suggest forgetting the term “mandate” for a second.
Consider two propositions:
(1) The federal government provides a tax credit if you have a child.
(2) The federal government provides a tax credit if you have health insurance.
They’re exactly the same. It’s the term “mandate” which people can’t seem to get over.
My response would be along the lines of KS generally, though I agree with Vald in particular that Thomas seems to think he has a special mind-meld with the framers and that gives him unique insights into what is or is not Constitutional. It is quite clear that Congress’s tax powers are separate from Commerce Clause powers. For example, Congress can put a tax on products that are produced, sold, and consumed entirely within state lines.
I’m also not sure that the gas tax is a good analogy for the ACA tax, though, for reasons others have outlined. My opinion is that a better analogy might be the “gas guzzler” tax. This one also highlights the activity/inactivity problem – along the lines of your “vacation home on Cape Cod” question.
That is, Congress can put a levy on a vehicle you own based purely on something like its EPA rating. It doesn’t matter whether you ever use the vehicle, or live in the second home in your example. What’s being taxed is your possessions and their status (second home vs first, low mileage vs high mileage). Likewise, I believe Roberts reasoned his way into this one.
Although I’m mostly a fan of ACA I’m mostly not a fan of this decision. Roberts is, essentially, rescuing the Feds (and specifically the Solicitor General) from an awful performance at briefs and oral arguments.
@KS: Yes the law could have been written that way. Probably better that way too, if it were a negative tax, ie we pay for those who have too little money. This law wasn’t actually, but legally it is settled: whatever they did it is close enough to what can be done with a tax to pass muster, per the USSC.
It sounds like (per reports, which are as always unverified) Roberts initially sided with the conservative wing that the mandate was unconstitutional under the Commerce Clause, but was unwilling to strike down the entire law. The other four insisted though, and he eventually changed his mind and wouldn’t come back.
If that’s true, it’s very ironic.
KS
The two examples you give are indeed the same, but the mandate is not a credit. It’s, in the court’s view, an additional “tax.”
The government is within its rights when it deducts from or reduces an existing tax when it isn’t interested in raising revenue.
The government is not within its rights when it creates a new tax when it isn’t interested in raising revenue.
@ Tony N–
“The government is within its rights when it deducts from or reduces an existing tax when it isn’t interested in raising revenue.
The government is not within its rights when it creates a new tax when it isn’t interested in raising revenue.”
And this is based on…?
SL: “How, then, can a tax on not-having-health insurance
possibly be constitutional?”
Perhaps Justice Roberts saw your article, “Why Yes,
The Law Is An Ass”, and found it persuasive?
“EXTRA EXTRA, READ ALL ABOUT IT, ROCHESTER PROFESSOR
HELD PERSONALLY RESPONSIBLE FOR DELIVERING 300 MILLION
COUNTRYMEN INTO COMMIE BONDAGE!”
PT
“A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk — risk pool before they need medical care. And so it will be successful, if it doesn’t raise any revenue, if it gets people to buy the insurance, that’s — that’s what this penalty is — this penalty is designed to affect conduct. The conduct is buy health protection, buy health insurance before you have a need for medical care. That’s what the penalty is designed to do, not to raise revenue.”
–Associate Justice Ginsberg
Article I, Section 7 of the Constitution states that all revenue bills must originate in the House. Taxes are for raising revenue. Therefore all tax bills must originate in the House. Hence the reason all tax bills begin with “H.R.” It’s not like they bother with that because it isn’t true.
*Ginsburg
Sorry, Justice G :)
@ KS:
“The fact is the Constitution is a living document whose meaning and interpretation changes and evolves according to the social, political, and economic context of the current era. This idea — that there is a singular, eternal, and unalterable meaning of the Constitution as originally written which can never be questioned and never change — is a bit, um, naive.”
This is a dangerous and lazy view of the Constitution. If there is no single, eternal, unalterable meaning of the Constitution, why bother writing it down? And why bother including an amendment process?
The meaning of the Constitution does not change. If you want to change its terms, Article V tells you how to do it. Go nuts. Just don’t tell me that the word “commerce” means something different today than it did in 1781.
“The meaning of the Constitution does not change.” This is a reasonable view, but we do have to accept that we do not actually know what that meaning is. Our understanding of the meaning changes.
“[W]e do have to accept that we do not actually know what that meaning is. Our understanding of the meaning changes.”
That is sensible. However its objective meaning has to be constant over time, even if we do not actually know the meaning. Otherwise the written word is meaningless.
Under than analysis, the problem with modern Constitutional jurisprudence is that the drafters and ratifiers of the Constitution never would have interpreted the Commerce Clause to mean what Wickard v. Filburn says it means, or the tax power to mean what NFIB v. Sebelius says it means. So either the people who wrote the words and voted on the words were grossly incorrect about their meaning, or the modern Court is.
@ Economiser–
“This is a dangerous and lazy view of the Constitution. If there is no single, eternal, unalterable meaning of the Constitution, why bother writing it down? And why bother including an amendment process?”
Harold addressed this best. If you believe in a singular and all-eternal meaning to the Consitution, I’m not going to argue with that (as such a statement is of course nonfalsifiable). All we can do is interpret the Constitution to try understand its meaning, and that interpretation can (and does) change.
“However its objective meaning has to be constant over time.”
This in no way means that our interpretation of whatever its “objective meaning” is has to be constant over time.
Example: Let’s assume there is one and only one internally-consistent set of mathematical laws that describe the physical processes of the universe. Let’s call this grand unified theory “The Constitution”.
Aristotle: “The Constitution” holds that an object’s force is proportional to its velocity.
Galileo (or Newton): No, “The Constitution” instead says an object’s force is proportional to its acceleration.
Einstein: And this proportionality constant — also known as mass — actually changes with the object’s velocity, among other things.
Economiser: No, sorry. “The Constitution” has a single and unalterable and eternal meaning that is objective. Therefore, none of you are allowed to debate what this meaning is, since your interpretations of “The Constitution” are clearly changing over time. Also, that inherent meaning is whatever we believe the framers would have intended.
KS: How do we know what the framers might have intended?
Economiser: We interpret it, duh.
(Btw, I like picking examples which are divorced from the political sphere, because it’s a lot easier to be objective with a topic that is free from political bias.)
@ Tony N–
You didn’t address my question. Consider two propositions, both intended to alter behavior and not raise revenue:
1. Providing a tax $X on people who engaged in activity Y.
2. Providing a tax credit $X on people who don’t engage in activity Y.
You’ve said 2 is clearly within the government’s limits but 1 is not. I don’t see a difference.
Please provide a constitutional reference, legal opinion, or some form of precedence which delineates why 2 is okay but 1 isn’t.
And please note that claims of “losing liberty” and “government overreach” etc… do not qualify as precedence.
KS,
I did address your question. You asked what my assertion was based upon. I told you. You must ask better questions, as you just did, and you’ll get better answers.
Scenario 1 is a positive use of the taxing power. Everything the government does to you is done via a vested power. There are always limitations to that power.
Consider eminent domain. The government is given the power to seize private property, but only so long as the right conditions are met and the government fulfills its duties. If conditions aren’t met or if the government does not fulfill its duty to the citizen, then the government’s taking of private property is illegal.
Likewise, if taxing an activity (in the case of ACA, inactivity) is not intended to raise revenue and therefore does not meet the requirements of the taxing and spending clause, then it is a penalty. Penalization is an improper use of the taxing power. See Scalia’s dissent for the precedent (not that precedent is needed, this conclusion is reached with a straightforward reading of Article I Section 8, as well as a basic understanding of original intent)
Scenario 2 provides a nice little loophole for the government. Scenario 2 is a negative use of the taxing power. Although the government cannot use its taxing power to strictly and explicitly induce a type of activity, it can FORGO using its taxing power to achieve a similar result.
In other words, the government does not need permission to not tax you. It is not required to tax you at all. It is merely allowed to.
Just as the government is allowed seize property through eminent domain, but it is not required to.
So yes, the government is free to not tax people, i.e. give tax credits. And if it happens to incentivize behavior then so be it. This is a practice I oppose on principal, in fact, I hate it, but that is another discussion.
This is why you’ll not hear a serious challenge to the hypothetical where the government raises taxes on everyone, for instance FICA, and then gives credits to those who purchase health insurance. Basically, scenario 2. It would be shitty (which is why they didn’t do it that way; it wouldn’t have passed) but legal nonetheless.
@Tony N:
You would agree that the federal government can let you out of Gitmo, just because. So you must grant it has the right to put you into Gitmo, just because.
Symmetry.
Ken B,
Yours is a dry wit, Ken. I’m assuming your last comment was rhetorical. :)
@Tony N: Perhaps.
I think it also puts a finger on the main hole in KS’s argument: the assumption that the government can set the base tax rate at whatever it chooses for whatever reason it chooses. He needs that assumption to make his argument work, and to evade your counter.
Precisely, Ken B.
@ Tony N–
“Scenario 2 provides a nice little loophole for the government. Scenario 2 is a negative use of the taxing power. Although the government cannot use its taxing power to strictly and explicitly induce a type of activity, it can FORGO using its taxing power to achieve a similar result.”
Once again, you’re just restating your premise as your conclusion.
“The government can’t tax an activity to reduce its incidence.”
“Why not?”
“Because the government can’t tax a certain activity to try reduce its incidence, duh. It’s not allowed.”
Sounds like sour grapes to me. Can you provide a Supreme Court decision or another court decision or something more substantial than just your opinion which states this fact?
And note that even if you do, it’s irrelevant, because the Court has just ruled that yes, in fact, the government can do this thing which you seem to believe the government absolutely cannot do. And I’m going to guess their opinion on this matter is more important than yours.
@ Ken B–
“You would agree that the federal government can let you out of Gitmo, just because. So you must grant it has the right to put you into Gitmo, just because.”
Ummmm, that’s not isomorphic to the discussion at hand. I can come up with extreme and unrelated situations too. A more relevant analogy would be:
The government can threaten you with Gitmo if you’re a terrorist. Or it can promise you won’t be put in Gitmo if you’re not a terrorist.
I think maybe a deconstructed version would make it clear.
I’m arguing that the following two are equivalent:
1. The government can punish X by taxing $Y.
2. The government can reward ~X by taxing $-Y.
Ken B is saying this is equivalent to saying the following are equivalent:
1. The government can do X for reason Y.
2. The government can do ~X for reason Y.
(Here, X = throw you in Gitmo, and Y = just because).
See the difference??
Btw, this is from the JOINT DISSENT:
“Of course in many cases, what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action, or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty.”
Translation: Tony N’s opinions on what the government can and can’t tax… are just, um, opinions, in the end.
re 75.
You are missing the point KS despite my having clarified my joke, having previously noted a difference, and Tony N having made a similar objection. My point is that your claimed equivalence depnds on conditions that do not obtain for Obamacare.
1. The government can punish X by taxing $Y.
2. The government can reward ~X by taxing $-Y.
That assumes that if the base tax one pays is T then 0 <= T-Y (and that Y is not more than can be paid). Because the ACA does nor PAY anything, it lessens liability. If my tax bill is $100 and Y is $200, and the credit means only that my tax now goes to $0 then KS's claim is simply wrong as arithemtic. KS's clauses 1 and 2 are only thue in certain ranges and are not true for many many people re ACA.
This is why I said earlier, ACA would be a better law if it gave people money to spend on healthcare. But it doesn't.
Your argument depnds on the notion that the gov't can set the base tax T at anything it wants for any reason it wants. But if that is not true then your arguemnt is not correct. And it is not true.
Le sigh.
You seem to be very confident about what the government can and cannot do. And this confidence seems to rely entirely on opinion. Note that even the conservative stalwarts — Scalia, Thomas, Alito — maintained the government is allowed to tax “permissible behavior” as a form of penalty or regulatory mandate. They were maintaining the individual mandate doesn’t qualify as that, and that’s where Roberts disagreed.
In her opinion, Ginsburg wrote something along the lines of “all powers seem bad in their most extreme”. You can certainly cite ridiculous examples — such as where the penalty Y is double the individual’s entire tax base T — to argue against the individual mandate. A more nuanced and complex person, however, would realize that a $700 annual fee isn’t even close to being that, um, ridiculous.
In his opinion (which I’m not sure you’ve read), Roberts said taxes-as-regulatory-mandates are okay as long as they’re not “overly punitive”, and he concluded this tax doesn’t qualify. I have no idea where you get the idea that my clauses “are not true for many many people re: ACA”.
Note that you are making a very different argument from Tony N. Tony N is saying the government is allowed to give tax refunds to promote behavior but not allowed to give taxes to discourage behavior. I also have no idea where he gets this firm conviction from either; the conservative justices themselves don’t seem to agree.
You however are saying the government’s tax in that situation has to be within a certain range, and then cite an example where the tax itself is double the individual’s entire tax base. Ummm, ok. And banning murder is bad because then the government might prevent me from watching TV. And Medicare is the end of freedom as we know it. Blah blah blah.
“Le Sigh.” We’re back to that are we? Pretension should earned: It would be funnier if you actually had responded to arguments I made not ones I didn’t.
Hmmmm, what’s that phrase … it’s on the tip of my tongue … OH! La fin.
“If my tax bill is $100 and Y is $200, and the credit means only that my tax now goes to $0 then KS’s claim is simply wrong as arithemtic. KS’s clauses 1 and 2 are only thue in certain ranges and are not true for many many people re ACA.”
Tax bill = T = $100
Y = refund = $200
Y = 2 * T
Here’s Ken B: “It would be funnier if you actually had responded to arguments I made not ones I didn’t.”
Here’s the actual PPACA bill: tax refunds up to a maximum of $795 per year (at first). Which means the only way this is at all analogous to Ken B’s “example” is if the person’s tax bill was $400 for the entire year. Which, of course, would mean that person qualified for subsidies and wouldn’t have to pay the tax in the first place…
Here’s Ken B: “KS’s clauses 1 and 2 are only thue in certain ranges and are not true for many many people re ACA.”
And this is based on anything other than your opinion?
KS,
No need to wring your hands over premises as conclusions. Some things require nothing more than a propositional statement. Sort of like, “KS is incorrigible.”
“You seem to be very confident about what the government can and cannot do. And this confidence seems to rely entirely on opinion. Note that even the conservative stalwarts — Scalia, Thomas, Alito — maintained the government is allowed to tax “permissible behavior” as a form of penalty or regulatory mandate. They were maintaining the individual mandate doesn’t qualify as that, and that’s where Roberts disagreed.”
No, no, no. They said no such thing. Read it again. The whole thing this time. What they were saying is that there are examples of either where either could have been imposed as the other. Nowhere do they suggest that a tax and a penalty are interchangeable instruments. Hence what follows:
“But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive.”
Mutually exclusive. And here is another important tidbit:
“The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.”
The operative word in that sentence is “frame.” The mandate could have been designed to be a tax, but it needed to be designed, or framed, that way.I said as much in an earlier comment. But do you know why they believe it was not designed to be a tax? Besides the fact that it is called a penalty over and over? Because it is unequivocally punitive:
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.
Back to you:
“Note that you are making a very different argument from Tony N. Tony N is saying the government is allowed to give tax refunds to promote behavior but not allowed to give taxes to discourage behavior. I also have no idea where he gets this firm conviction from either; the conservative justices themselves don’t seem to agree.”
No, that is not what Tony N is saying. All taxes discourage the activity being taxed, or as you put it in your imaginary dialogue with me earlier, they “reduce incidence.” But this is always a corollary of an effort to fund the government. A perfect example of this is the cigarette tax. It’s for revenue, yet it also discourages behavior. Take the revenue component out of the cigarette tax and you have issues, because now you are not funding the government, you are strictly policing the public. That’s not exactly ok. And just because it isn’t ok doesn’t mean the government doesn’t do it. It does. It’s just not ok.
Anyway, something I actually wrote was this:
“…the government cannot use its taxing power to strictly and explicitly induce a type of activity…”
And this:
“Likewise, if taxing an activity (in the case of ACA, inactivity) is not intended to raise revenue and therefore does not meet the requirements of the taxing and spending clause, then it is a penalty”
By “induce a type of activity,” I meant “induce a type of activity.” In other words, it can’t coerce you into action by threat of taxation. It can’t say, “Go buy something, or we will tax you.” That’s why it can conceivably levy a tax on the purchase of items that emit carbon dioxide, but it can’t compel citizens to purchase air scrubbers or to plant trees under threat of taxation.
But any scenario in which the government says, “If you don’t do such and such, then you must pay me money” cannot come to pass under the power to tax unless it is to raise money for the government.(And then it would have to be correctly apportioned. And then it would still likely have serious B.O.R issues.) Otherwise it is by the power to either regulate or to police. Congress has virtually no police power. And in order for it to regulate, you have to engage in activity that can be regulated.
I know you think this is merely my opinion. And you’re right. So is Roberts’s take on the matter—that’s why they call what he wrote an “opinion.” And so is your take on the matter. I would think that in this forum and with this topic someone as bright as you would know that goes without saying. If matters of the law were perfectly objective then we wouldn’t be having this conversation.
@Tony N: I admire your industry and dedication…
KS has spotted what he thinks is a nice symmetry: punish X by taxing Y compared to encouraging X by not taxing Y. This lets him feel clever. But he ignores that for that to really be a good argument there must be a *real* symmetry beyond the *syntactic*. But there are many ways in which it really is not symmetric. The argument only works if the government has plenary power to set the level of taxation at any levle for any reason AND if the government is equally allowed to reward or punsih a behaviour AND if there are no limits on costs AND if the government has the power to actually collect the tax from those who are unable to pay.
In other words, except for very samll amounts over a small range of activities for some taxpayers, his argument fails because the reality is not as symmetric as his argument requires.
Anyway, it is hotter today than Natalie Portman in a bikini, and I wish you a good weekend.
@Tony N: I just thought of another cute analogy to highlight why KS’s argument is only about syntax not substance, why the symmetries of the world matter when you make an argument based on syntactic symmetries.
“I can go one mile north then one mile west, or I can go one my west then one mile north. Same.” On a plane these are the same, but on a sphere they need not be — becasue the symmetries required do not exist on all parts of a sphere.
Ken B,
Damn, I’m going to have to borrow that one. Very smooth; nicely distilled. Lots of applicability.
And good luck with that Portmanesque heat. We’re somewhere in between Olivia Wilde and Mila Kunis in these parts.
Have a great weekend.
@Tony N
You are correct that your opinion is an opinion, and that Roberts’ opinion is his opinion, and that the joint dissenter’s opinion is their opinion. What distinguishes the Roberts opinion on the applicability of the taxation power from the rest, however, is that it has the vote of five justices of the Supreme Court. Those five votes transform the opinion from only his opinion into “the Opinion of the Court,” and give it the force of law. While your philosophical and legal musings on the meaning of the joint dissent are interesting, they are no matter as it regards the law going forward. No matter what you or the joint dissent believe about the legitimacy of Roberts’ opinion for the court, it is now the law, and all of the courts in the United States are expected to uphold that decision and apply it until such time as the Supreme Court issues a contradictory opinion overturning the precedent set in this case. Whatever the joint dissenters think about the law is of no relevance to the law, because a dissent does not have the force of law. You might think that the joint dissenters were correct in their interpretation of the law, but if that is the case, then you might as well accept that the law on the matter is no longer what you believed it to be, because the courts cannot just ignore Roberts opinion because they think differently. If you misunderstand that point, then you misunderstand the entire structure of our federal government.
Also, as an aside, am I the only one disturbed by the utterly despicable things some men deem appropriate? Women are not heat indexes, they are people. Maybe you should consider showing a modicum of decency on a public forum.
@ Tony N–
“I know you think this is merely my opinion. And you’re right. So is Roberts’s take on the matter—that’s why they call what he wrote an “opinion.” And so is your take on the matter. I would think that in this forum and with this topic someone as bright as you would know that goes without saying. If matters of the law were perfectly objective then we wouldn’t be having this conversation.”
You do a good job of explaining your rationale for believing why a tax credit to purchase insurance is different than a tax on not purchasing insurance. No-one is questioning that.
Where you go wrong, however, is by confusing “ought” with “is”. I wasn’t questioning your rationale. I was questioning your opinion. Saying “the government shouldn’t be allowed to do X” — which is what you’ve been saying all this time without realizing it — is not the same as saying “the government can’t do X” — which is what you’ve been saying so far (incorrectly).
As Vald points out, not everyone’s opinion is equivalent on every matter. Certainly not on this. So you and I can certainly disagree about what the government *ought* to be able to do and not do. However, we can’t disagree on what the government *can* do and not do in this matter — the Court has decided. You’re just plain wrong on this one.
@ Ken B–
“The argument only works if the government has plenary power to set the level of taxation at any levle for any reason AND if the government is equally allowed to reward or punsih a behaviour AND if there are no limits on costs AND if the government has the power to actually collect the tax from those who are unable to pay.”
None of these are necessary for my argument to hold.
“In other words, except for very samll amounts over a small range of activities for some taxpayers, his argument fails because the reality is not as symmetric as his argument requires.”
Restate the premise to assert the conclusion, a Ken B hallmark.
And, to completely support his conclusion, Ken B creates an example where the tax (or tax credit) $Y is DOUBLE the individual’s tax burden for that year… and then ignores the counterpoint that, um, this “tax” does not qualify as “overly punitive” (in Roberts’s own words).
Vald,
Thanks for the civics lesson, because for a second there I was under the impression that my disagreement with the Court’s decision immunized me from its consequences.
And what the heck? Women are people?? Now you tell me!
Nevertheless, I think I’ll continue to express my umbrage with the Court as well as my fondness for the virtues of the fairer sex.
Until I’m taxed for doing so, that is.
@Tony N
You seem to miss my point. You can express all the umbrage you want. You can believe that Roberts was completely wrong and that the joint dissent should have been the majority opinion, but in the end, quoting the joint dissent as if that is a correct description of what the government can and cannot do is simply incorrect. You seem to claim that you understand that, which I’ll accept. In that case, my previous comment is aimed at all those who might read your comment as a statement of how the Court views the government’s taxing power. If anyone wants an actual understanding of how the federal government’s taxing power is currently interpreted, because reading the dissent, while interesting, is of no legal value whatsoever.
As for your “fondness for the virtues of the fairer sex”: I generally interpret virtue to be a word associated with high moral value and good character. If you think a woman’s virtue should be judged by her looks, you are living in the wrong century.
You most certainly have the freedom to say whatever you want about women, and I, likewise, have the freedom to express my distaste for your offensive objectification of women. And neither of us will ever be taxed for it by the federal government, because under the Court’s precedent related to the first amendment, that would be an unconstitutional infringement on the freedom of speech.
“Until I’m taxed for doing so, that is.”
Is this supposed to be a novel sentiment? You think I like my taxes paying for wars I think are unnecessary? Or for loopholes/subsidies which I consider to be corporate warfare?
Tell me this isn’t the first time you’ve felt the anger of knowing not all of your taxes pay for activities you want them to…
To give a counter-example, consider a hypothetical government that is only allowed to tax a maximum of 10% of each individual’s income on a given year. Furthermore, this government has a balanced-budget amendment. Say the current tax rate is a flat 5% of all earned income annually. Now say the government wants to reduce the incidence of smoking.
To do so, government A decides to increase the tax rate to 6% of anyone who smokes.
To do so, government B decides to decrease the tax rate to 4% of anyone who doesn’t smoke.
Who knows if A or B is more efficacious. I’m just arguing they’re consistent. A government who can do A is allowed to do B, and vice versa. At least the US government is (as has been decided).
Now here’s Ken B:
“The argument only works if the government has plenary power to set the level of taxation at any levle for any reason AND if the government is equally allowed to reward or punsih a behaviour AND if there are no limits on costs AND if the government has the power to actually collect the tax from those who are unable to pay.”
Um, no.
This government doesn’t have the ability to set the level of taxation at any level for any reason. (I.e., taxing people for being African American would certainly be unconstitutional in the US via the amendments). It also doesn’t have the ability to increase the tax rate more than 10% or decrease it less than 0%. There are limits on costs. Finally, whether the government can collect from those who are unable to pay is entirely irrelevant.
In short: using an extreme and ridiculous hypothetical (i.e., one where the tax is DOUBLE an individual’s entire annual tax burden) to argue against a reasonable tax (one where the maximum tax penalty is $700 a year in a country with per capita GDP upwards of $50,000) is, um, um, um. I don’t know what it is. But it isn’t smart.
you can’t link to the federal excise tax on gasoline? I was under the impression that the differences across states were a result of the state&local taxes and NOT the federal component (which I believe is currently 18.4% on non-diesel).
if the federal portion is not the same in an absolute sense, then can you explain how the difference is calculated? For instance, if the difference arises through the number of us highway miles in the state, then that seems to be fine as well… i would find it hard to believe that the federal portion of the gas tax is not either a) constant across states or b) normalized by some method of standardization based on how much federal assistance the state gets for transportation.
I’m not reading through all the comments where this may ahve been answered, just making a suggestion to make your post more clear/compelling.
Sorry, 18.5 CENTS