"Coffee and Markets"
I enjoyed listening to your interview on "Coffee and Markets." I am, though, rather skeptical about the success of the claims that you are bringing. With respect to the 5th Amendment claim and improper takings, I should note that no one is forced to pay a particular person or, for that matter, any private individual at all. As Chief Justice Roberts stated in NFIB,
While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.
National Federation of Independent Business v. Sebelius, 132 S. Ct 2566, 2596-97 (2012) (opinion of Chief Justice Roberts)
As to the well-hashed origination clause challenge (which I believe the Pacific Legal Foundation is pursuing in Sissel v. Dep't of Health and Human Services), this passage from the 9th Circuit's decision in Armstrong v. U.S. seems to be particularly relevant with respect to your statement that the Senate chose the wrong House bill to amend:
Armstrong contends that the phrase "Bills for raising Revenue" in the origination clause encompasses only those enactments that increase taxes. As a result, he maintains that TEFRA was not a "bill for raising revenue" when it was proposed in the House, but instead was transformed into such a bill by the Senate. Armstrong contends that because TEFRA "originated" as a bill to raise revenue in the Senate, its passage violated the origination clause.
We cannot accept this restrictive and strained reading of the origination clause. The term "Bills for raising Revenue" does not refer only to laws increasing taxes, but instead refers in general to all laws relating to taxes. Wardell v. United States, 757 F.2d 203 at 205 (8th Cir.1985) (per curiam); Black's Law Dictionary 1133 (Rev. 5th ed. 1979) (defining "raise" in the revenue context to mean "to collect, to levy, as to raise money by levying taxes"); see also 2 A. Hinds, Precedents of the House of Representatives of the United States Sec. 1489 at 949-53 (1907) (recounting an 1872 debate between the House and Senate concerning the proper interpretation of the origination clause).
Again, though, I must say that it was certainly informative to listen to you speak about these matters and I hope that you continue to offer your insights to the public. GregG 20:37, 9 May 2013 (EDT)
- Thanks for your very thoughtful analysis. You might consider becoming an attorney one day!
- I hope to respond more fully tomorrow, but suffice it to say that the Ninth Circuit cannot be expected to have the last word on the clear language of the Origination Clause, which was included in the Constitution as a limit on excessive or creative taxation.
- As to the Fifth Amendment claim, penalties can have a coercive effect.--Andy Schlafly 00:30, 10 May 2013 (EDT)
The Ninth Circuit Armstrong v. U.S. decision appears different in its reasoning and conclusion from the decisions by the Supreme Court and the most recent Fifth Circuit holding.--Andy Schlafly 23:54, 10 May 2013 (EDT)
- It seems that Herrada and Munoz-Flores dealt with whether the final act was revenue-raising (both cases found it was not, and therefore neither law was subject to the origination clause). There is actually a reasonable argument as to why PPACA falls into the same category of not being revenue-raising (and I'm sure it's one the defendants will assert, if the case even gets to the merits). Armstrong suggests a test that if the final act is revenue-raising, then we must check that (1) it began as a House bill and (2) the House bill dealt with revenue (not necessarily raising revenue): if so, then the Senate properly exercised its power to amend revenue bills, which is allowed according to the Origination Clause. PPACA would satisfy such a test (as HR 3590 was a House bill dealing with revenue).
- Thank you for writing up a very informative article from the stub I created last year. I look forward to looking through the brief when that becomes available. GregG 10:34, 11 May 2013 (EDT)
- Greg, I appreciate your thoughts on this, but feel that Armstrong is an aberration. Its reasoning is flawed and it conflicts with other decisions and with historical evidence. Armstrong violates a basic principle of interpretation by rendering the constitutional word "raising" meaningless in "raising Revenue."
- But let's continue to discuss. I hope to post briefing and other documents here about this interesting issue.--Andy Schlafly 10:52, 11 May 2013 (EDT)