Tuesday, March 27, 2012

Obamacare Seems to Have Quantum Properties

Just like quantum physics postulates that all particles exhibit wave and particle properties at the same time, the oral arguments by the Obama team seem to mean that the individual mandate penalty is a tax and is not a tax simultaneously.  Even the New York Times picks up on this mockery of legal arguments:

In defending the law, the Justice Department has taken a legal position — that the health care act constitutes a tax — that contradicts the political stance taken by President Obama. To do that, it has relied on legal semantics to argue that the insurance mandate will be enforced through the tax code even though Congress took pains to label it a penalty and not a tax.

After losing that argument in a lower court, the government's lawyers switched positions to agree with the plaintiffs that the litigation was not blocked by the Anti-Injunction Act. But in its brief to the Supreme Court, the administration argued that while the penalty was not a tax that would fall under the Anti-Injunction Act, it should be viewed as a tax when the court considers on Tuesday whether the mandate is permitted under Congress's broad authority to levy taxes.

In other words, the Justice Department is essentially arguing that the penalty is not a tax, except when the government says it is one.

Justice Samuel A. Alito Jr. was quick to highlight the seeming contradiction during Monday's session. "Today you are arguing that the penalty is not a tax," he told Solicitor General Donald B. Verrilli Jr., the administration's lead advocate. "Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"

Mr. Verrilli responded that it had not. He said that the choice of labels mattered in considering whether the Anti-Injunction Act applied to the case but was irrelevant in determining whether Congress could justify the insurance mandate as an exercise of its taxing power.

At another point, Justice Stephen G. Breyer chided Mr. Verrilli for using the word tax in responding to questions from the bench. "Why do you keep saying tax?" the justice asked, leading Mr. Verrilli to amend his wording to "tax penalty."

The judge who first ruled on the case, Roger Vinson of Federal District Court in Pensacola, Fla., described the administration's position in a 2010 opinion as "an Alice-in-Wonderland tack." For good measure, he appended a footnote that quoted Alice in Lewis Carroll's "Through the Looking Glass": "The question is whether you can make words mean so many different things."

During oral arguments in a different lower-court challenge, Judge Henry Hudson of Federal District Court in Richmond, Va., was perhaps even more blunt about the rhetorical distance between Mr. Obama and his Justice Department. Mr. Obama, in a 2009 interview with ABC News, had said the insurance mandate is "absolutely not a tax increase."

"Let's characterize it correctly," Judge Hudson remarked. "They denied it was a tax. The president denied it. Was he trying to deceive the people?"

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