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Former Under Secretary of Homeland Security, Author of “Deadly Indifference”, National Security Blog Expert - The National Journal, Political Blogger - The Daily Caller, Radio Talk Show Host - "The Michael Brown Show", Founder & Chairman - Apoklayyis, Inc.

ObamaCare Penalty, ObamaCare Tax?

Forget what the Affordable Care Act (ACA) actually says, because apparently the Solicitor General of the United States kept calling the penalty a tax. I assume the Solicitor General of the United States would not lie to the Supreme Court in his arguments. “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” said Justice Samuel Alito, drawing laughter from spectators in the court. Alito, a 2005 nominee of President George W. Bush, was not the only justice to challenge Verilli’s fence straddling. Elena Kagan, nominated by President Obama in 2010, pursued the penalty aspect, asking if people who refuse to purchase insurance would be breaking the law. Verilli replied that if they “pay the tax, then they are in compliance with the law.”

“Why do you keep saying tax?” asked Justice Stephen Bryer, a 1994 Clinton nominee, drawing more laughter.

So, is it a tax or not? Put aside for a moment the issue of what happens legally if it is a tax under the Anti Injunction Act (which would have precluded the Supreme Court from hearing a case on the “tax” until it was actually imposed on someone). Instead, let’s take Chief Justice Robert’s opinion about whether or not it is a tax. He writes in the opinion:

Beginning in 2014, those who do not comply with themandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). That payment,which the Act describes as a “penalty,” is calculated as a percentage of household income, subject to a floor based ona specified dollar amount and a ceiling based on the average annual premium the individual would have to pay for qualifying private health insurance. §5000A(c). In 2016, for example, the penalty will be 2.5 percent of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization). Ibid.; 42 U. S. C. §18022. The Act provides that the penalty will be paid tothe Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties, such as the penalty for claiming too large an income tax refund. 26 U. S. C. §5000A(g)(1). The Act, however, bars the IRS from using several of its normal enforcement tools, such as criminal prosecutions and levies. §5000A(g)(2). And some individuals who are subject to the mandate are nonetheless exempt from the penalty—for example, those with income below a certain threshold and members of Indian tribes. §5000A(e).

So, the penalty is based on income percentages, collected by the IRS (but no levies or garnishments, I guess), but is called a penalty. The Solicitor General calls it a tax, the Justices recognize it as a tax, but then the Chief Justice actually tries to say it’s not really a tax before he then concludes it is a tax upon which he bases his opinion.

If it looks like a. . .oh, never mind.

Here’s the substantive point I’m trying to make. It may or may not be a tax. Somewhere down the line these political elitists will quit trying to obfuscate everything (we have to approve the bill to know what’s in the bill) and tell us the truth. In the meantime, the Court has ruled, whether we like it or not, that this tax/penalty is, according to Chief Justice Roberts:

Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

To me this is the most astonishing aspect of the Court’s opinion. “…[J]ust a tax hike on taxpayers who do not have health insurance.” “…[L]ike buying gasoline or earning income.” So the Court has decided that Congress can tax us for not having something? I don’t have a Chevy Volt. Can the government tax me, or impose a penalty, based on my income, if I fail to buy a Chevy Volt? What if I don’t want to buy the government-mandated iPhone? Do I pay a penalty? What if I decide not to buy cigarettes but the government mandates us to buy cigarettes so they can collect the taxes for their anti-smnoking programs? Do I pay a tax for not buying the cigarettes? This is the insanity – and the danger – of this opinion.

The government can call a penalty for not doing something a tax and its constitutional.

The Republic is in grave danger if politicians decide to start taxing us for not doing something.

You can read the entire Court’s opinion which I have uploaded to Scribd here:

ObamaCare Supreme Court Decision

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4 Responses to “ObamaCare Penalty, ObamaCare Tax?”

  1. Jim Aldridge #

    Michael, Would Obamacare be OK if it was up to the States (“Hickencare”) vs the Feds?? Just wondering if the dissagreement is based on the US Constitution. Jim A

    July 3, 2012 at 2:33 pm
    • I am a staunch believer in federalism. If a state wants to pursue something like Obamacare, I’m with that. If I lived in the state that was proposing, I would vigorously oppose it, because I do not believe healthcare is a right, any more than a new car, a house or any other material “thing” is a right. Government should not be in the healthcare business, up to and including Medicare and Medicaid. If states want to pursue the latter, fine, but not the feds. Each state can pursue what it wants; and, those citizens can accept or reject it.

      The other problem with the Affordable Care Act is that it is a simple precursor to a single payer system, a nationalized, socialized healthcare system. I am vehemently opposed to that, as the controls that come with such a system are atrocious and tyrannical.

      July 3, 2012 at 2:37 pm
  2. Jim Aldridge #

    Mistyped email

    July 3, 2012 at 2:34 pm
  3. Josh #

    What makes health care fall into a different category than fire, police, roads, or education? If no one has a right to health care should we not treat wounded enemy combatants whom we take prisoner in war? Should hospitals turn away anyone who cannot prove that they have earned health care, should we draw a line at severity of injury? Who gets to decide where those lines should be drawn, when is health care a right (if ever) and when is it a privilege?

    July 3, 2012 at 11:19 pm