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Wednesday, March 28, 2012

Supreme ACA ack

Enough about yesterday. What about the soliciter general's terrible performance the day before yesterday. He argued that the 2.5% payroll tax or fixed amount whichever is greater used to implement the mandate isn't a tax. He did this to dodge an 1867 law which forbids courts from evaluating the constitutionality of a tax which has not been collected. I think the law is clearly unconstitutional (in my view Congressional authority to decide which cases the Federal Courts can hear was revoked by the bill of rights -- it seems to me to go without writing that Congress shall pass no law blocking courts from interpreting and applying amendments which begin "Congress shall pass no law"). But I don't recommend making that argument.

Rather I think the point should be that the tax is obviously constitutional and no one claims otherwise. The plaintiffs have a problem with the tax credit side of the mandate -- the provision that the tax is not collected if people have health insurance. The 1867 law doesn't say anything about judging the constitutionality of tax credits does it ? So there. It's a tax and a tax credit.

This approach would have the additional advantage of explaining why the ACA is obviously constitutional. There are many tax credits and deductions designed to encourage this or that activity. No one (with standing) has contested their constitutionality.

In fact, there are other tax credits in the ACA. The subsidies for purchase of insurance on exchanges by low and moderate income individuals and by small firms are formally tax credits. This is because Congress wanted to say it was giving people tax cuts not subsidies (for the same reason it called the 2.5% payroll tax a mandate not a tax). The plaintifs do not contest the constitutionality of these subsidies. They contest the constitutionality only of the credit of 2.5% of payroll income (or a fixed amount whichever is more) for everyone who has insurance no matter what their income is and no matter whether they bought it on the individual market or receive it as a benefit from their employer.

The issue before the court is whether one tax credit is constitutional and another isn't. They can decide this now, because Congress didn't think of trying to prevent people from suing to block a tax credit which no one had received yet.

Also, obviously if they are not total ideological fanatics and Republican hacks they must conclude that the law is constitutional. But we knew that already.

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