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Discussion Starter #1
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When writing the majority opinion in the Obamacare case, Justice Roberts wrote with regard to the “shared responsibility payment” (SRP):

”A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”

As we can see, Justice Roberts asserts that a tax imposed on an individual who does not have health insurance “….does not fall within any recognized category of direct tax”. In addition Roberts confirms that a “direct tax” is still required by our constitution to be apportioned among the several States. What is missing from Roberts’ assertion is an explanation as to why the SRP would not be considered a “direct tax” as understood by the Framers of our Constitution and those who ratified it. Why is such an explanation essential to arriving at a conclusion? The answer is because a fundamental rule of constitutional construction requires:

”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__ 16 Am Jur 2d Constitutional law, Meaning of Language.

Regarding the command that “direct taxes” are to be apportioned, our Supreme Court in Hylton v. United States : 3 U.S. 171 (1796) says the following:

”By the second section of the first article of the Constitution, it is provided, that direct taxes shall be apportioned among the several States, according to their numbers, to be determined by the rule prescribed.

By the ninth section of the same article, it is further provided, That no capitation, or other direct tax, shall be laid, unless in proportion to the census, or enumeration, before directed.

By the eighth section of the same article, it was declared, that Congress shall have power to lay and collect taxes, duties, imposts, and excises; but all duties, imposts, and excises, shall be uniform throughout the United States.”


And let us remember by Roberts own admission “direct taxes” are still required to be apportioned notwithstanding the adoption of the 16th Amendment!

And so, a question is unanswered as to which constitutionally authorized taxing power granted to Congress, when adhering to the constitutional limits placed upon it, can be pointed to and levied as the "shared responsibility payment"?

We can immediately exclude imposts and duties because imposts and duties as understood by our founders are taxes imposed on the import or export of goods. They are not imposed directly upon the individual.

And in reference to the power to lay and collect excise taxes, they too are not levied directly upon the individual but are levied upon the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations or upon a privilege granted by government such as the Corporate excise tax of 1909 upheld in Flint vs. Stone Tracy. An excise tax may also be levied upon a particular piece of property or is use and is considered as taxing the individual directly ___ see the Hylton Carriage case cited by Roberts.

So, of three specific types of taxes mentioned in our Constitution ___ imposts, duties and excise taxes as they were understood and used by our founding fathers ___ it seems crystal clear they cannot be used to levy the “shared responsibility payment”, a type of tax which seems crystal clear is levied directly upon the individual.

And with reference to the power to lay and collect taxes on “incomes without apportionment” It does not matter what name is given to the tax. Any tax which takes the form of a “direct tax” is still, notwithstanding the 16th Amendment, required to be apportioned as confirmed by Justice Roberts!

When Roberts wrote that “The shared responsibility payment is thus not a direct tax that must be apportioned among the several States”, he totally ignored the historical characteristics which identify and distinguish a direct tax from those which are indirect as understood by our founders. In fact, the shared responsibility payment is characteristic of a direct tax, and particularly so when taxing a person’s earned wage! A review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders were familiar with, we find the following reference regarding a capitation tax as being a direct tax:

“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.

The shared responsibility payment is in fact to be levied directly upon the wage-earner which is then computed from annual wages earned, and thus takes the form of a direct tax as understood by our founders!

The irrefutable fact is, there is a consistency among the founders comments that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject.

Are we to conclude the SRP is not a direct tax as confirmed by Adam Smith, which is levied directly upon a working person and computed from his/her annually earned wage?

Roberts asserts the SRP “… is also plainly not a tax on … personal property … “and is “…thus not a direct tax that must be apportioned among the several States.” But, the fact is our very own Supreme Court has stated:

"The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property."___ Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884)

Indeed, the SRP is a tax levied upon personal property [ a working person's earned wage] and as such, “must be apportioned among the several States”!

JWK

”If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property.”__ POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 [1895]
 

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They have been whittling away at personal property rights for years, this is just another carving that gets them to their goal.

What is more interesting is how they passed the ACA, they took a bill that originated in the House that was for veterans home ownership and stripped all the language from it in the senate and put the ACA, called a gut and replace and then passed the ACA through reconciliation. There was a pacific legal foundation case to take this to the supreme court that argues all revenue raising bills must originate in the house. I have not heard much of this lately and not sure if SCOTUS turned it down but it is interesting that if they can do this they can pass any bill on that raises revenue using the same technique.

http://www.pacificlegal.org/cases/Sissel-3-1374
 

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Discussion Starter #3
Let us not forget the question asking if the Shared Responsibility Payment is a direct tax and requiring apportionment was not properly address in the Obamacare case. See the dissenting opinion agreed to by SCALIA, KENNEDY, THOMAS, and ALITO, JJ.


”Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.”


So, the question remains: Is the Obamacare tax indirect, or direct and requiring apportionment?


JWK

If, by calling a tax indirect [the Obamacare tax]when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property. POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 (1895)
 
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