Prognostication: A Flashback


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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74 Responses

  1. Avatar North says:

    A very prescient post, I wish I’d kudosed it at the time. Ah well, better late than never.Report

  2. Avatar clawback says:

    The government’s legal team argued successfully as an “alternative argument” that the mandate is a tax. This argument won. So it’s not clear what you are saying here. That if they had called it a tax they would have won? They did, and they did.Report

    • Avatar Mark Thompson in reply to clawback says:

      That if they had called it a tax, it would have been an open and shut case, not something that depended on CJ Roberts bending over backwards to resolve every possible ambiguity in favor of the government, ignoring the repeated claims that it wasn’t a tax (both within and without the legislation itself), and doing so even though he had already concluded that it was not a tax for purposes of the Anti-Injunction Act. If Roberts had just been in a foul mood on the day he made his final decision, he could have just as easily and justifiably ruled against the Administration.

      This was as close a call as they come. It should not have been. More importantly, it would not have been but for the idiotic insistence that it’s a penalty not a tax.

      There was no way to avoid making the ICC issue a close one- conservative jurisprudence has long been trending towards narrowing the ICC, and the mandate lacked any on-point ICC precedent. But there was every possibility in the world to avoid even reaching the ICC issue by just calling it a tax from Day One, with a 7-2 or better result a virtual guarantee.Report

      • Avatar clawback in reply to Mark Thompson says:

        7-2 or better? I’m guessing the administration was quite certain there were at least three who wouldn’t accept the ACA under any argument; if it wasn’t the semantic silliness about the word “tax” it would have been something else.Report

        • Avatar Mark Thompson in reply to clawback says:

          Trying to assume the votes of justices based on their political leanings without knowing anything about how they view the merits of a line of argument is a really stupid thing to do.

          And no, it would not have been something else; if there were anything else possible, it would have been raised in the dissent, which has every reason in the world to find as many things wrong with the legislation as possible in order to lambast the majority.Report

          • Avatar clawback in reply to Mark Thompson says:

            So I suppose the right-wing justices could have told us that yes, the law fails the ICC test; and yes, “regulating inactivity” is an unprecedented expansion of federal power; but you called it a “tax” so we’re good. It’s fair to say I think this unlikely, and I suppose the administration agreed, which is why they went with what they considered the politically beneficial strategy of publicly denying it’s a tax.Report

            • Avatar Mark Thompson in reply to clawback says:

              Please identify the basis upon which you think they would have overturned the mandate if it were universally conceded that the mandate is a tax. If you can’t, then your position amounts to nothing more than CONSERVATIVES DISHONEST…SMASH.Report

              • Avatar clawback in reply to Mark Thompson says:

                I’m basing it on the alarmist rhetoric in the dissent (“If all inactivity affecting commerce is commerce, commerce is everything”, etc.), which it borrows in spirit from every right-wing blog post ever written on the subject. As I said, I suppose it’s possible they could have ruled in favor of the law if it just used that magic word “tax”. I think the administration made the judgment otherwise. Not sure why you think this is somehow nefarious; it’s just a political judgment. And one that turned out correct, while you twist your logic into counterfactual pretzels.Report

              • Avatar Will Truman in reply to clawback says:

                I took Mark’s POV to be that it was reckless judgment (reckless to the cause it was trying to advance, I mean). It all worked out in the end, but that we are surprised it did – when with the taxation argument there would have been much less surprise – is not insignificant.Report

              • Avatar Mark Thompson in reply to clawback says:

                First, what WillT says is exactly correct. Second, the rhetoric in the dissent to which you refer is on the ICC issue. The tax issue avoids the ICC issue entirely.Report

              • It also seems worth mentioning that Jack Balkin’s article last month is fairly insistent that clarity by the Obama Administration on the tax issue would have been highly likely to get supporting votes from at least Roberts and Kennedy, making it a 6-3 vote. I don’t think it’s much of a leap to think that it would have gotten Alito as well. Regardless, the point is that Balkin’s not exactly someone you’d call an apologist for the right-wing of the court, and he’s also someone who’s got an expert’s feel for how the court operates.Report

              • Avatar clawback in reply to Mark Thompson says:

                Well then I’m glad someone with “an expert’s feel” agrees with me rather than with someone predicting “7-2 or better”.Report

              • I suggest you take an actual look at Balkin’s article, as it makes exactly the same argument as I did.Report

              • Avatar clawback in reply to Mark Thompson says:

                To point out the obvious, if he predicted 6-3 he didn’t make the same argument as someone predicting “7-2 or better”.Report

              • The 6/3 vs 7/2 is incidental. The important part is that it would have passed more easily – and we would have been spared all of this drama – if they had relied on the taxation argument rather than relying on the commerce argument. Balkin and Thompson agree on that score, even if they disagree how lopsided it would have been.

                Their view on the importance of the taxation argument itself has been vindicated by the actual ruling. They agreed with one another on Roberts and Kennedy. Thompson thinks that Alito would have gone for it, too, and Balkin doesn’t. That’s peanuts for disagreement, though.Report

              • Avatar clawback in reply to Mark Thompson says:

                If you’ll look at my second comment in this thread, you’ll see that I agreed using the word “tax” might have resulted in a 6-3 ruling. There’s really not much disagreement until someone starts trying to tell me the three right-wing justices might have been swayed by the use of that magic word. So it’s no good trying to gloss over the significant difference between 6-3 and “7-2 or better”. Check that; actually a “guarantee” of 7-2 or better.Report

              • Fair enough. If Mark’s optimism of 7/2 or greater is the source of the disagreement, I am probably less optimistic than he is (I think 7/2 is quite possible, though far from guaranteed). For me, the difference between 6/3 and 5/4 itself actually isn’t as important as my belief that getting #5 wouldn’t have been so much in doubt up until today had it been handled differently.Report

              • Avatar clawback in reply to Mark Thompson says:

                Agreed; and all I’m saying is apparently the administration was confident of getting to five and was willing to sacrifice number six in hopes of gaining some political benefit from avoiding the term “tax”. I’d even agree that this was risky. But in light of the result you can’t really say it was the wrong decision. At least it’s really bad form for an opponent to call the strategy wrong in light of its success.Report

              • The problem with this is that the ground on which the administration won was a ground on which they barely argued. The ground on which they lost – which should not be pooh-poohed, as it’s a huge long-term blow to liberals’ ICC interpretation – was the ground on which they focused almost their entire argument. In other words, they made an express decision to basically forego their strongest argument for political gains and put all their eggs in the basket of an argument that had a coin flip of a chance, and which indeed actually lost.

                Roberts saved their ass by zeroing in on an argument they had effectively abandoned. Indeed, Roberts’ decision is borderline (emphasis on borderline) sua sponte. That is not something that the Administration could have ever thought to count on.Report

              • I actually would say that it was the wrong decision. They won in good part because they got lucky. It seems to me more likely than not that they won because somebody else (sympathetic justices, most likely) made the argument on their behalf. We can speculate that was the plan all along, but looking at the last few weeks, did the Obama camp look like they thought they were going to win? Did they act like it? I don’t think they did.

                Whether or not pointing this out, in light of a victory, is poor form depends on the context. The context here, though, is that Mark is extrapolating on what he wrote before the decision was reached. He said then that the tax argument was crucial to their case and that the president was undermining this case by denying it’s a tax. That the case was not completely undermined – because Roberts went with the tax rationale anyway – doesn’t in itself prove him to be wrong on that. And on the necessity of the tax argument, I would say that his previous speculation about the necessity of the tax argument – against which people pushed back – has actually been proven to be correct, since it was the tax argument that carried the day.

                There are other contexts in which I would agree with you. People who are always poo-pooing the president, those who seem to go out of their way to find fault with the president or Democrats in general… but that’s not who Mark is and one of the reasons I’ve been pushing back with you on this is that I thought it was kind of unfair of you to suggest that it was.Report

              • Avatar clawback in reply to Mark Thompson says:

                At some risk of circling this right back to the beginning, let me just point out again that the tax angle was in fact one that the government argued. You can say they didn’t argue it strongly enough, or that they undermined the argument with seemingly contradictory public statements. And then I can say they apparently did argue it strongly enough in light of the only real evidence we have, namely the result; and I can say that claiming that public statements affected the court’s decision undermines your statement that it is unwise to “assume the votes of justices [are] based on their political leanings”. But I doubt continuing the discussion would be fruitful.Report

              • Avatar clawback in reply to Mark Thompson says:

                Which is what I wrote. Yes, it’s logically possible the right-wing justices could have ruled for the ACA if they had seen the magic word “tax”. I think the administration decided that, despite this logical possibility, it was unlikely to occur. In spite your generously offered concern trolling, they decided calling the act a tax was unlikely to benefit them.Report

              • Avatar Stillwater in reply to clawback says:

                clawback, I haven’t followed this thread too closely s0 apologies if this is mistaken, but if your argument is right, why did Robert’s contort himself into supporting the ACA? He had a legitimate reason to reject it.Report

              • Avatar Will Truman in reply to clawback says:

                Mark’s main point was and is “It didn’t have to be this close. It was only this close because they refused to call it a tax. It only passed because Roberts ignored what they said.”

                Whether we’re talking 6-3 or 7-2, we’re talking about an unnecessary gamble. Good for Obama for winning (both Mark and I are pleased with the judicial result, if you haven’t noticed). But he almost lost. Unnecessarily, from a legal perspective. It’s not “concern-trolling” to point that out.Report

              • Avatar Will Truman in reply to clawback says:

                To add to what Stillwater said, it’s not unimportant to note that this could have gone the other way. That was the prediction. A lot of really bad things might have happened if it had. That is a chance that Obama was willing to take. Maybe it was the right one, but it created a lot of unnecessary consternation and a reliance that a conservative justice would bend over backwards to call it a tax over the protestations of the people who passed it.

                Seriously, does relying on conservative justices to bend over backwards to pass a law uniformly opposed by the party that put him on the bench strike you as a non-risky approach? Does disagreeing with that make you a concern troll? Insincere? Dishonest? What?Report

              • Avatar clawback in reply to clawback says:

                My understanding is that Roberts supported the law because it’s a tax regardless of what it’s called. I’m not including him among those who would have ruled against it regardless.Report

              • Avatar clawback in reply to clawback says:

                I gathered he is opposed to the ACA based on reading the post. Search for “my opposition” and let me know if I’m wrong. My apologies if I misread, but I don’t think I did.Report

              • Avatar Will Truman in reply to clawback says:

                He opposes PPACA as law, but (by my reading) does not oppose the constitutionality it because of the taxation argument. He previously said:

                In other words, if the mandate is accurately characterized as a tax, then the mandate is constitutional under Congress’ taxation powers. End of story.

                Elsewhere, when I said:

                Someone, and I can’t remember who, linked to the bill and I read the pertinent section and the language of the law actually suggested that, regardless of how much the Democrats were denying it at the time, it counted as a tax. So, I am inclined to think that the court got it correctly here.

                He agreed.

                I don’t consider it incredible or disingenuous to disagree with a law, but argue that the constitutionality is sound, but that supporters of the law used a risky strategy to get the constitutionality approved.Report

              • Avatar Mark Thompson in reply to clawback says:

                Will’s assessment is correct. Thanks Will.Report

              • Avatar clawback in reply to clawback says:

                If he opposes the ACA then offering advice to those who support it can correctly be called concern trolling.Report

              • Avatar Will Truman in reply to clawback says:

                To call his analysis concern trolling is to say that you believe he did not want it to be found constitutional. That is not accurate. That he was against the passing of the law does not matter if, with the law having been passed, he wants the courts to uphold it.Report

              • Avatar Jaybird in reply to clawback says:

                If he opposes the ACA then offering advice to those who support it can correctly be called concern trolling.

                Or philosophical honesty. It’s all good.

                I’m of two minds with my advice to you:
                1) You really need to step back and look at arguments from the viewpoint of whether an argument is valid first and, once that’s hammered out, *THEN* look at the truth of the premises so see if the argument is sound. If some of the premises are premises that we don’t have enough footing to say that they’re true or not, we’re stuck looking at validity… and that’s something we can do for arguments held by other people with different premises that, similar to our own, have truth values that we don’t have the footing to say with certainty what they are.
                2) Keep doing what you’re doing!Report

              • Avatar Will Truman in reply to clawback says:

                I also wanted to add that, like Mark, I opposed PPACA. However, I really did not want the courts to find it unconstitutional. Period. First, because I believe it was constitutional. Second, because I feared the mandate getting struck down and everything else being left in place, which I believe to be the least desirable conclusion possible. So my own desire to see it upheld was sincere. I suspect Mark’s was, too.Report

              • Avatar clawback in reply to clawback says:

                It appears you have two options as well:
                1) Actually read the arguments made and comment on the substance.
                2) Keep doing what you’re doing!Report

              • Avatar Tom Van Dyke in reply to clawback says:

                Making Chief Justice Roberts look downright Solomonic. And I suspect he was. There’s much speculation that he changed his vote from scholarly truth to political prudence:

                David Bernstein:

                “Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds…?”


              • Avatar Will Truman in reply to clawback says:

                TVD, the first comment on the link:

                Read Scalia’s dissent again. He refers to Ginsburg’s “dissent” while discussing only the individual mandate-under-Commerce Clause-and-Necessary/Proper reasonings – Section I of Scalia’s dissent, in which he was in the 7-2 majority (Ginsburg, Sotomayor dissenting).
                Section II of Scalia’s dissent deals with the penalty-as-tax, which is what carried the day for CJ Roberts.

                So the use of the word “dissent” may not mean anything.

                Interesting, if the rejection of the Commerce Clause was 7-2, would that mean that it was three votes, instead of just the one, that hinged on the taxation argument? That’s an honest question, as there might be something I am missing.Report

              • Avatar Tom Van Dyke in reply to clawback says:

                Good question, WillT. Waiting ’til the smoke clears. Roberts is the hero so far. You know I’m first and foremost a wisdom, prudence, and good governance guy, and as you [and MarkT, I think] pointed out elsewhere, a 5-4 nuking of Obamacare would have left a huge bloody mess.

                This gives us a chance to extricate or to dig the hole deeper, but hopefully with more care and caution than the first time around either way.

                [But I’d be surprised if the Living Constitutionalists recognize any real constitutional limits on governmental bright ideas—esp Ginsburg, whose separate concurrence I skimmed and it looked only slightly to the right of Evo Morales.]Report

  3. Avatar Jason Kuznicki says:

    I can’t exactly say I’m happy to be shown right about this.

    At least a generation of conservative/libertarian legal scholarship totally missed the mark. Rather than trying to establish the limits of federal power under the Commerce Clause, we ought to have been looking at the power to tax.

    It frightens me that (1) we haven’t done so much of this and (2) liberals won’t mind a bit setting up all kinds of new taxes to, erm, motivate behavior. Parting with money is never an infringement of one’s liberties, to a lefty.Report

    • Good call, MarkT. JasonK’s been on top of this for years as well, so hats off to the both of you.

      Not that it seems to have mattered a whit in this case, but there’s a grim satisfaction in having been clear and correct.Report

      • “Grim satisfaction.” Yeah, this is basically where I’m at. The good news is that the ICC aspect of the ruling has the potential to really start undermining Wickard v. Fillburn. In the long run, that may well be as or more important than whether the mandate itself specifically survived.

        And while I get Jason’s concern about new forms of taxation, I don’t share it, the reason being that this ruling doesn’t actually expand the realm of what is and is not taxable, which is fairly well-settled. Instead, the ruling is very narrowly written, almost to the point of being limited to the facts of the case, on the question of what renders this a “tax.”

        The ICC issue will have far more long-term precedential effect than the tax issue.Report

        • I will confess that there is an ego trip involved here as well. Jack Balkin is getting a lot of kudos for writing basically the same thing as I did last month, and deservedly so. Balkin, whatever disagreements I may have with his worldview, is someone whose legal mind I hold in especially high regard. To have beaten him to the punch by 2 1/2 years…..personally speaking, it’s pretty cool.Report

    • Avatar Koz in reply to Jason Kuznicki says:

      This is where you and Mark are both wrong. As Tim says, the tax business is a bogus figleaf:

      They picked out this tax argument specifically so they could uphold the law while at the same time trying to lay markers down for limits to federal overreach through enumerated powers. But it’s a mug’s game.

      What really protects our liberties is our ability and propensity to vote Republican and associate with the mainstream Right in America. That’s where the real juice is. Even if Mark were right about the tax issue, it’s a theoretical point at best anyway.Report

      • Avatar Kimmi in reply to Koz says:

        because we all love hackers being able to run around unimpeded! because our liberties are entirely safe when people are quite willing to publish the names and addresses of people who are doing what they don’t like.


    • Avatar clawback in reply to Jason Kuznicki says:

      Then I guess it’s time to throw the usual conservative/libertarian dismissal right back: if you don’t like what the Constitution says, try to amend it. But not to worry: you managed to get four justices to say that a tax is not a tax unless it’s called a tax. So there’s hope for that “legal scholarship” activism after all.Report

    • Nob Akimoto Nob Akimoto in reply to Jason Kuznicki says:

      It frightens me that (1) we haven’t done so much of this and (2) liberals won’t mind a bit setting up all kinds of new taxes to, erm, motivate behavior. Parting with money is never an infringement of one’s liberties, to a lefty.

      …really? Do we have to have this sort of thing even from you, Jason?

      Should I go “well, the only kind of liberty that libertarians like to focus on is money. You’re only free if you get to keep your own money and screw others out of theirs.” ? Or like “It’s never coercion if the power disparity is between you and a big company in a contract.”Report

      • Avatar Jason Kuznicki in reply to Nob Akimoto says:

        I’ve been discussing this with Ryan Noonan on Twitter this afternoon. Here’s a sample:

        “Don’t even know what a ‘right’ to money looks like. I think it’s an old white guy.”

        “@JasonKuznicki may be functionally right that the Tax/Spend power is unlimited.”

        “Also, you have to deal with the fact that I (and lots of liberals) don’t think taxation implicates liberty. It just doesn’t.

        I would be sincerely interested, and not in a snarky way, to see the two of you debate the question of whether taxation ever implicates liberty.Report

        • Nob Akimoto Nob Akimoto in reply to Jason Kuznicki says:

          In so far as I’m concerned about the argument regarding taxation as an implication on liberty, I generally find no problem with taxation with regard to liberty itself, so long as it’s dealing with a negative externality cost the individual wouldn’t see otherwise.

          Elsewise, taxation is an exchange. It’s an exchange of some economic liberty for a different sort of liberty. It’s not ideal, but I think it’s generally pareto neutral.Report

          • Avatar Jason Kuznicki in reply to Nob Akimoto says:

            Taxation is certainly not a voluntary exchange. And given the deadweight loss of taxation, I don’t see how you can call it pareto neutral.Report

            • Avatar Stillwater in reply to Jason Kuznicki says:

              Taxation is certainly not a voluntary exchange.

              Neither is murder. Or theft. Or fraud.

              Is it incoherent to say that people voluntarily agree to coercive constraints?Report

              • Avatar Jaybird in reply to Stillwater says:

                I wouldn’t try to compare taxation to murder, theft, or fraud. Er, I mean, *I* would. I don’t think it’ll be a good comparison for you.

                Go for “getting paid for services rendered”. It’s far firmer footing.

                Hell, compare it to “marriage”.Report

            • Avatar BlaiseP in reply to Jason Kuznicki says:

              That example is simplistic far beyond the point of error. In it, we are told the only way to New York is via a bus which travels on roads, roads paid for with tax dollars. New York is an expensive city. Its roads are constantly being repaired. It costs $ 86 for a truck full of zucchini to cross the George Washington Bridge. Does this stop those trucks from coming? No. It increases the cost of zucchini in NYC.

              Now I am sorry the fellow in your example only feels the trip to NYC is only worth 50 dollars. His problem is with the bus company, not the tax: were it not for those roads, the bus company wouldn’t exist. And oh, by the way, what is this Consumer Surplus business? Can he exchange that ten dollars of perceived value for some nice fresh zucchini down at the farmer’s market on Washington Square or something?Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                Have you really never heard of consumer surplus? Consider me surprised. It is neither an advanced nor a very controversial concept in economics.

                Your point about roads is true but irrelevant as regards an individual consumer’s decision and the effects of this particular tax. Roads could easily be financed by some other tax, and then the man who has to economize on a bus ticket wouldn’t face the same set of choices. In that case, someone else would face the deadweight loss of taxation instead.Report

    • Avatar James K in reply to Jason Kuznicki says:

      Parting with money is never an infringement of one’s liberties, to a lefty.

      It’s the dangerous part of post-New Deal constitutional interpretation, and I believe it’s the reason things like asset forfeiture and Kelo-style eminent domain have passed constitutional muster. A view has grown up that people don’t have any real rights when money is involved, yet a government that can arbitrarily deprive you of your property is one vote away from owning you.Report

    • Avatar Jaybird in reply to Jason Kuznicki says:

      Here’s a fun quote from Freddie:

      People earn the money they do because of a truly innumerable amount of contributions from the civil society and governmental infrastructure around them, so the society and government have every right to take what they are owed in the transaction, as much as any investor ever.Report

      • Avatar Stillwater in reply to Jaybird says:

        That’s actually an argument I agree with. In it’s entirety. People ought to pay taxes in proportion to the benefits derived from governmental institutions and privileges.Report

        • Avatar Kimmi in reply to Stillwater says:

          then the rich will argue that they ought never to pay taxes, and create private armies. (who is to say they haven’t already?)Report

        • Avatar Jaybird in reply to Stillwater says:

          so the society and government have every right to take what they are owed in the transaction

          How good a judge do you feel society will be when it comes to measuring how much it is owed? How fair/impartial?Report

          • Avatar Stillwater in reply to Jaybird says:

            That’s a different issue. You’re slidin down that slippery slope.Report

            • Avatar Jaybird in reply to Stillwater says:

              To be perfectly honest, I think that saying that society and government have every right to *TAKE* what *THEY ARE OWED* pretty much demands the question: “wait, what?”

              I don’t see how that question could possibly be avoided.Report

              • Avatar Stillwater in reply to Jaybird says:

                Maybe so, but it’s worth pointing out that that’s not the question initially you asked.Report

              • Avatar Jaybird in reply to Stillwater says:

                The question I originally asked was one about how good a judge the government and society is about what it is owed.

                For the record, I don’t think it’s a good judge at all.

                I also don’t think that the society and government are good at feeling like they’re merely owed money but a certain amount of respect as well…

                And looking for clarification as to how good government and society are at measuring these things are things that I’d think that you’d want clarified before agreeing with them in their entirety.Report

              • Avatar Stillwater in reply to Jaybird says:

                You never asked me for an account of why I agree with the claim, JB. You ran slipped all the way down to the bottom of the slope of what you think it means to agree with the claim.Report

              • Avatar Jaybird in reply to Stillwater says:

                Seems like we’d want to hammer out exactly what is owed.

                Then, I suppose, compare it to what society and the government says is owed.

                If, of course, there is 1:1 overlap, then we don’t have a problem at all, do we?Report

              • Avatar Glyph in reply to Jaybird says:

                If I understand Jaybird’s implication, it is simply that under normal circumstances the best way to make sure that the parties agree on what is the the fair amount to be ‘taken’ from one party, and ‘owed’ to the other, with minimal resentment or harm, is to allow both parties a choice to participate in the transaction at hand.

                Otherwise ‘taken’ and ‘owed’ are troubling. Hey, I took in your paper while you were on vacation, so I took your car for a spin, I knew the key was in the gas tank. Figured you owed me. Hope you don’t mind. Say, that’s a pretty nice TV ya got there. Not sure I feel like we are even yet.

                Of course the counter-argument is that we do have a choice, though indirectly through our elected representatives.

                Or, moving to Somalia. I always wanted to be a pirate when I was a kid.Report

      • Avatar Koz in reply to Jaybird says:

        I’m a little bit late to this, but Freddie’s obviously full of it here. Among other things, we can’t in general sue or get redress for their failures to uphold civil society or provide infrastructure.Report

    • Avatar MikeSchilling in reply to Jason Kuznicki says:

      At least a generation of conservative/libertarian legal scholarship totally missed the mark.

      How long have I been telling you this?Report

    • Avatar Rod in reply to Jason Kuznicki says:

      Except it’s only sort of like a new tax. Really, it’s a lot closer to just reducing the personal exemption and then adding a new personal exemption back in contingent on having health insurance.

      Think of it this way: Does the child tax credit amount to a mandate to have children? Does the home mortgage deduction mandate that you purchase a house? Etc., etc…

      This seems like more a matter of sloppy execution than anything else.Report

  4. Avatar James Hanley says:

    Hat’s off to you, Mark. Spot on.Report

  5. Avatar Jason Kuznicki says:

    Mark, do you have copies of those posts? I don’t anymore. They sit in the memory hole created by the loss of my old database.

    I recall having written them, and I recall being forced sort of reluctantly into the conclusion that the mandate was a tax. I remember thinking that tactically I’d have preferred a commerce clause fight, but I didn’t think we would necessarily get one.

    I don’t know exactly what I said back then, though, and memory can be tricky.Report