Law in Contemporary Society

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AffordableCareAct 18 - 26 Jan 2012 - Main.HarryKhanna
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Discussion of statutes begins always with the statutory language. Much water has been flowed under the bridge below before Arlene even mentions the
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  the GPO print). You might also want to consult Chapter 68, Subchapter B of the Internal Revenue Code.
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I attempted to put the relevant text of the statute below, but I'm not thrilled with the formatting. Without the pre tags, the text loses all the newlines, but with the pre tags there are scroll bars. Can anyone offer advice on how to quote longer pieces of text in the wiki? Google and a quick look through the TWiki help was unavailing.
 
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The government wants the individual mandate to be a tax, not a penalty, for two reasons.
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SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE. 
(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—An applicable individual shall for each month beginning 
after 2013 ensure that the individual, and any dependent of the 
individual who is an applicable individual, is covered under minimum essential coverage for such month.
(b) SHARED RESPONSIBILITY PAYMENT.— 
(1) IN GENERAL.—If an applicable individual fails to meet 
the requirement of subsection (a) for 1 or more months during 
any calendar year beginning after 2013, then, except as provided in subsection (d), 
there is hereby imposed a penalty 
with respect to the individual in the amount determined under 
subsection (c). 
(2) INCLUSION WITH RETURN.—Any penalty imposed by 
this section with respect to any month shall be included with 
a taxpayer’s return under chapter 1 for the taxable year which 
includes such month. 
(3) PAYMENT OF PENALTY.—If an individual with respect 
to whom a penalty is imposed by this section for any month— 
(A) is a dependent (as defined in section 152) of 
another taxpayer for the other taxpayer’s taxable year 
including such month, such other taxpayer shall be liable 
for such penalty, or 
(B) files a joint return for the taxable year including 
such month, such individual and the spouse of such individual shall be jointly 
liable for such penalty. 
(c) AMOUNT OF PENALTY.— 
(1) IN GENERAL.—The penalty determined under this subsection for any month with 
respect to any individual is an 
amount equal to 1⁄12 of the applicable dollar amount for the 
calendar year. 
(2) DOLLAR LIMITATION.—The amount of the penalty 
imposed by this section on any taxpayer for any taxable year 
with respect to all individuals for whom the taxpayer is liable 
under subsection (b)(3) shall not exceed an amount equal to 
300 percent the applicable dollar amount (determined without 
regard to paragraph (3)(C)) for the calendar year with or within 
which the taxable year ends. 
(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)— 
(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750. 
(B) PHASE IN.—The applicable dollar amount is $95 
for 2014 and $350 for 2015. 
(C) SPECIAL RULE FOR INDIVIDUALS UNDER AGE 18.— 
If an applicable individual has not attained the age of 
18 as of the beginning of a month, the applicable dollar 
amount with respect to such individual for the month shall 
be equal to one-half of the applicable dollar amount for 
the calendar year in which the month occurs
 

1. Additional Congressional Authority Under Art. I, Sec. 8

Classifying the mandate as a tax opens up a head of congressional authority as an alternative to the Commerce Clause. If classified as a tax, the mandate could fall within Congress's power to "lay and collect Taxes, Duties, Imposts and Excises, to ... provide for the ... general Welfare of the United States” US Const. Art 1, Sec 8. As such, if the Supreme Court finds that the individual mandate does not comport with the Commerce Clause, the government is hoping that the court will find authority for it in the broader congressional authority to tax. This line of argument is unavailable if the individual mandate is classified as a penalty.
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2. Anti-Injunction Act May Bar Lawsuit

A completely different statute called the Anti-Injunction Act prevents lawsuits "for the purpose of restraining the assessment or collection of any tax." 28 USC 7421. Essentially this means you can't bring a lawsuit until the IRS actually tries to collect the tax. Therefore, the government argues that this means the current lawsuit is barred since the "tax" does not go into effect until 2014. Of course, this argument will only delay the lawsuit since even if the mandate is classified as a tax, as soon as the IRS begins collecting it in 2014, the suit will be allowed under the Anti-Injunction Act.
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Please note that the text of Act refers to the mandate as a penalty, not as a tax. See PPACA Sec. 1501(b). Further complicating the government's desire that the mandate be classified as a tax is that the legislative history of the Act indicates that the mandate was called a "tax" in earlier congressional drafts, but that the term "tax" was replaced with "penalty." (See Florida v. U.S. Department of HHS, 716 F.Supp.2d 1134 for a discussion about this.)
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Please note that the text of Act refers to the mandate as a penalty, not as a tax.
 
How does that "complicate" anything? Isn't Holmes' point that the words mean what
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  "penalty," and "tax penalty"? Surely no one will seriously argue that it's unconstitutional to use the word "penalty" but constitutional to use the word "tax." In which case, why does the
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name matter at all?
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name matter at all?
Your point is well-taken and I have revised the above section accordingly.

But I question your claim that 'no one will argue that it is unconstitutional to use the word penalty but constitutional to use the word tax.' Congressional choice between the word tax and any other word matters because if I were the plaintiffs, I would be trying to convince the Court that Congress itself does not think the mandate is a tax, whatever else the mandate may be.

Use of the word penalty is not itself unconstitutional, but its use is evidence that this is not a tax, which forecloses the lines of argument the government is advancing discussed above. What if Holmes is right that words mean what they do notwithstanding the label we give them? Forgive me, but to a set of plaintiffs who want to see this bill overturned at any cost, does that matter? They want to convince the Court that there is an operative distinction between penalty, tax, and tax penalty, and they hope that the practical effect of this illusory distinction results in overturning the law.

 -- HarryKhanna - 24 Jan 2012

Revision 18r18 - 26 Jan 2012 - 05:20:30 - HarryKhanna
Revision 17r17 - 25 Jan 2012 - 23:32:51 - RohanGrey
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