Understanding the ACA Arguments
dorentli at iupui.edu
Wed Mar 21 19:53:29 PDT 2012
I'm not sure why there's an accountability problem if the Court lets Congress get away with calling the PPACA fine a penalty rather than a tax. Everyone understood what Congress was doing, and people who don't want to pay more taxes were not assuaged by having to pay a penalty instead. Indeed, it seems pretty clear that voters did hold Democrats accountable in the November 2010 elections for their votes on PPACA (http://apr.sagepub.com/content/early/2012/02/08/1532673X11433768). There's an accountability problem when Congress can shift responsibility onto other actors (New York v. United States, Printz), but Congress is not able to do that with the individual mandate. It's hard to distinguish in terms of principle between the individual mandate that Congress wrote and its functional equivalent--a 2.5 percent income tax with an exemption for those who have insurance--that is clearly valid.
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David Orentlicher, MD, JD
Samuel R. Rosen Professor of Law
Co-Director, Hall Center for Law and Health
Indiana University Robert H. McKinney School of Law
Adjunct Professor of Medicine
Indiana University School of Medicine
dorentli at iupui.edu
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Wednesday, March 21, 2012 2:57 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Understanding the ACA Arguments
. . .
One reason we have this problem is that there was a failure of political courage. If the penalty had been enacted explicitly as a tax, its constitutionality would not, I think, be in question. I wonder whether courts should use inventive and perhaps unprecedented approaches to rescue the political branches from their failure to have the political courage to use the powers they clearly have. That would undermine the political accountability of the political branches.
Perhaps the Court should uphold the penalty as a tax, label it very clearly as a tax, and let the political branches deal with the political fallout from their having broken their pledges not to raise taxes on anyone but the 1%.
Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
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