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Thursday, July 5, 2012

In Which Goldy Proved a Better Constitutional Attorney Than Our Attorney General

Posted by on Thu, Jul 5, 2012 at 6:33 AM

Over at my old blog HA, Darryl responded to last week's SCOTUS decision upholding the Affordable Care Act by pointing to an old post of mine I had completely forgotten. Way back on March 29, 2010, in a post titled "A layman’s refutation of Rob McKenna’s bullshit lawsuit," I attempted to explain in non-legalese terms why I thought the health care law would be upheld.

"[W]hile I don’t put anything past the machinations of the highly partisan and activist Roberts Court," I wrote at the time, "I’m pretty damn confident that this layman is going to prove to have a better grasp of the law than our state’s attorney general." In fact, at the risk of sounding immodest, it turns out I fucking nailed it:

See, the recently passed health care reform legislation does not require that all U.S. citizens purchase insurance, it merely provides a tax incentive to those of us who do. If you are not covered by an employer, and if you have not purchased your own individual policy, and if your income is above certain levels, and if you don’t hail from a state that has opted out of this mandate by implementing its own qualified health insurance system, you will be required to pay an additional federal tax, starting at the greater of $95 or 1% of income in 2014, and rising to $695 or 2.5% of income in 2016, up to a cap of the national average premium on a bronze plan. Both the minimum tax and the cap will increase by the annual cost of living adjustment.

Now, some might argue that this is still a mandate to engage in some sort of economic activity because it targets a tax at those who refuse, but one could easily flip this perception around. What it really is, is a flat, 2.5% federal income tax — much along the lines of what is already imposed to fund Social Security and Medicare — but for which the law provides a substantial exemption to those who choose to purchase private health insurance.

And don’t attempt to bog down this discussion in jibberish over whether this is a “tax” or a “fee” or a “penalty” or a “mandate” or whatever. The courts have long been consistent that lawmakers need not jump through such semantic hoops; if a law is constitutional worded one way, it is constitutional worded another, as long as the practical application is the same. And clearly, our tax laws are filled with provisions intended to encourage some economic activities and discourage others.

... [T]he federal government clearly has the constitutional authority to impose a tax to pay for health care (it does so now with Medicare), and it clearly has the constitutional authority to grant deductions, exemptions and other tax incentives in order to encourage or discourage certain forms of economic activity. And from a practical standpoint, that’s all the health care reform bill really does.

Yup, while everybody else (McKenna included) focused on the commerce clause, I correctly predicted that the law would be upheld based on Congress' taxing power. Two-plus years ago. Read the whole damn thing. It's like I practically wrote the majority opinion. McKenna on the other hand, not so much.


Comments (31) RSS

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Matt from Denver 1
Nice work, Goldy. Sincerely. But... because I gotta, I'm going to ask when you were ever concerned with seeming immodest.
Posted by Matt from Denver on July 5, 2012 at 6:51 AM · Report this
Ha. No wonder that schmo McKenna doesn't want you anywhere near him.

How much did Washington State piss away pursuing his legal gibberish theory? Try not to miss at least one public opportunity to tell him, "Told you so!"
Posted by Brooklyn Reader on July 5, 2012 at 7:01 AM · Report this
So Obama insisted it wasn't a tax either.

Obama and Mck.....

what a bunch of ChuckleHeads.
Posted by Goldy is Smarter than Obama. scary........ on July 5, 2012 at 7:04 AM · Report this
....In Which Goldy Proved a Better Constitutional Attorney Than Our President (the Constitutional Law Professor)

Will Obama be apologizing to Goldy and George Stephanopoulos?
Posted by "I Never Had sex with the Middle Class; not Once...." on July 5, 2012 at 7:08 AM · Report this
Theodore Gorath 5
Now that you have completely just gone and blown yourself, can we move on now?
Posted by Theodore Gorath on July 5, 2012 at 7:20 AM · Report this
Kinison 6
Toby, you could have a Phd in astro physics and people will still find your blog entries about astro physics annoying and tripe.
Posted by Kinison on July 5, 2012 at 7:54 AM · Report this
bedipped 7
That's the best explanation of the tax/mandate/incentive/whatever I've seen. Putting your own name in this post title is a new height of self-tootery that you probably deserve (maybe this once). No wonder McK fears you.
Posted by bedipped on July 5, 2012 at 8:08 AM · Report this
prompt 8
You're my hero.

But seriously, good call.
Posted by prompt on July 5, 2012 at 8:12 AM · Report this
Daddy Love 9
The way I see it, there's the Constitution, and next to it is goldy, then eight miles of crap, and then McKenna.
Posted by Daddy Love on July 5, 2012 at 8:13 AM · Report this
Anne in MA 10
All that being said (and good job on calling it), Richard Posner has a nice, concise summary as to why the mandate could have been upheld on Commerce Clause grounds.
Posted by Anne in MA on July 5, 2012 at 8:20 AM · Report this
A broken watch is right once every two years.
Posted by tabski on July 5, 2012 at 8:21 AM · Report this
rob! 12
Thanks for that, Anne @10. I've missed your comments lately.
Posted by rob! on July 5, 2012 at 8:25 AM · Report this
Sorry, Goldy.

Today Obama is reaffirming his position that it is NOT A FUCKING TAX......

And he said "you could go fuck yourself you pretensious douchedrip"
Posted by ...close quote on July 5, 2012 at 8:29 AM · Report this
@5, can you blame him? If my earliest efforts to blow myself had ever succeeded I don't suppose I'd find it easy to do much else either.
Posted by gloomy gus on July 5, 2012 at 8:32 AM · Report this
"At the risk"? So much for that.
But a good explanation, nonetheless
Posted by Up all night on July 5, 2012 at 8:34 AM · Report this
Goldy has no formal legal training, and can barely feed himself, but there is no question he is the Oliver Wendell Holmes of the Stranger.
Posted by Goldy isn't just the gardening columnist. on July 5, 2012 at 8:45 AM · Report this
Allyn 17
As I was reading this post, off to the side a little bit is an ad saying: The Seattle Times endorses Rob McKenna.

Is that snark or irony?
Posted by Allyn on July 5, 2012 at 8:57 AM · Report this
@6: "...annoying and tripe" is my new favorite phrase
Posted by Approaching 40 in LA on July 5, 2012 at 8:58 AM · Report this
Teslick 19
I thought it was agreed that any posts with "In which..." was banned on Slog?
Posted by Teslick on July 5, 2012 at 9:09 AM · Report this
Teslick 20
Excuse me, "were banned".
Posted by Teslick on July 5, 2012 at 9:10 AM · Report this
Didn't you nail the Goldmark decision as well?
Posted by sarge on July 5, 2012 at 9:26 AM · Report this
@3 -- I can't believe the Legislative Branch passed a law and advertised it disingenuously!

I've never heard of such a thing!

I don't suppose you remember all of Obama's noise about how he was winning on his accomplishments but losing on his messaging. What did you think he was talking about?
Posted by six shooter on July 5, 2012 at 9:27 AM · Report this

You should start writing articles now on the ways McKenna will fuck-up when he's Governor. Two or three years from now I look forward to more blog posts about how you were right and no one would listen.
Posted by six shooter on July 5, 2012 at 9:29 AM · Report this
Seems to me the result of all this could be for at least some states to enact single payer health care.

This would be because it is now in the interest of highly paid, but independent business owners to not have to pay the high costs of insurance or penalties.
Posted by Supreme Ruler Of The Universe http://_ on July 5, 2012 at 9:35 AM · Report this
seatackled 25

I do tend to find astro physics best with a serving of annoying tripe.
Posted by seatackled on July 5, 2012 at 9:49 AM · Report this
Goldy 26
@21 Yes, I did nail Goldmark v. McKenna. Before the case was even filed. Read my original posts, and the briefings and opinion, and you'll fund much of the same case law and conclusions cited.

I also nailed the 2004 gubernatorial election contest, about four months before Judge Bridges finally ruled, explaining in detail why Rossi's reliance on Foulkes v. Hays would ultimately doom his case.

True, as @16 points out, I have no legal training, and my lack of legal vocabulary and procedural knowledge often shows through my analysis. But I have a good legal mind, and I'm damn proud of my track record reporting on legal issues.
Posted by Goldy on July 5, 2012 at 9:59 AM · Report this
rob! 27
Your conclusion is incorrect, @24.
So is defeat a disaster for small business? Almost certainly not, though it may prove to be a disaster for NFIB’s main policy priority of low taxes.

The bill in fact contains substantial benefits (some might even say giveaways) for small businesses. That starts with a program already under way to offer special subsidies to firms with fewer than 25 employees that want to offer health benefits. As long as your employees earn less than $50,000 on average (law firms, medical practices, and other elite professional partnership are thus ineligible), you can get a tax credit to defray 35 percent of the cost of the insurance if you’re a for-profit firm, and 25 percent if you’re a nonprofit. When the law really gets rolling in 2014, those subsidies rise to 50 percent for for-profits and 35 percent for nonprofits.

Firms with fewer than 50 employees are also exempt from the “employer responsibility” provision of the law... That is supposed to deter firms from responding to the law by simply dropping existing insurance coverage. But the ACA doesn’t make small businesses pay that penalty.

Put the special subsidies and the exemption together, and the result is a law that’s pretty clearly a good deal for small businesses.
Posted by rob! on July 5, 2012 at 10:49 AM · Report this
28 Comment Pulled (Spam) Comment Policy
so goldy, what is your analysis on how obama botched it so bad?
Posted by Obama=McKenna on July 5, 2012 at 11:19 AM · Report this

anybody there?

did you see Obama doubling down on the "ITS NOT A FUCKING TAX!" thing today?

Posted by you are so full of shit on July 5, 2012 at 3:25 PM · Report this
Goldy, I stand corrected on an earlier post chiding you for explaining. Nice work. Nice writing.
Posted by Why are there cars? on July 5, 2012 at 9:27 PM · Report this

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