• Let’s Call It A Duck in Today’s House Tax Bill

    Aaron’s post yesterday drew a lot of comments. The mandate is codified in the Internal Revenue Code, §5000a.  If it’s a tax, then it’s much more likely to be found constitutional.

    Even better, the Tax Anti-injunction Act (26 USC §7421) forbids the filing of any case until after the tax is paid (in 2014).

    As I said in my comment to Aaron’s post, Judge Hudson found it was a penalty rather than a tax.  Why?  Because Congress and the President sold it to the public as anything but a tax. The legislative findings [ACA §1501(a)] discuss the Commerce Clause power at length, but never mention the Taxing Power. 

    How to fix this?  We need to call it a duck.  Add a single sentence to the tax bill in the House today, saying that Congress intended §1501 to be a tax rather than a penalty.

    I’ll post next week on how the tax issue is likely to proceed on appeal to the 4th Circuit.

    • So, you’re saying they should just attempt to codify a lie into law? How quaint!

      No one intended this to be a tax, they went out of their way to make sure that nobody thought that. Hell, the Republicans went out of their way to make the point that it was a tax increase, giving them the rope upon which they would eventually hang themselves. George Stephanopoulos read the definition of tax to Obama from the dictionary, and Obama replied thusly:

      “STEPHANOPOULOS: That may be, but it’s still a tax increase.

      OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore”

      Ah, facts are inconvenient things.

    • Kevin,

      I know that the SCOTUS (and, I presume, lower courts) rely on non-statutory documents that convey Congress’s intent. Don’t they even look at the language in the actual floor speeches and debate?

      If that’s the case, does Congress even need to codify this in an Act to be convincing? Could they just have a conversation about it? Or pass a non-binding resolution?

      I ask because who knows what the tax bill will turn out to look like. Perhaps they won’t be able to get the tax language you suggest in it. Do some of these other ways of expressing intent help?

    • Congressional intent is nice. But in theory it only matters when the text of the actual law is unclear. At least that is what I learned in the course of my political science degree….

      This is a case where making the law clearer probably will not matter. If SCOTUS wants to uphold it, it will. If it doesn’t, it won’t. The facts will be made to fit the appropriate beliefs.