This is astonishingly obvious to me. I agree with Simon that its idiotic. I just don’t agree with Simon that congress will run afoul of the constitution. For example, Nick seems in general to be a pretty smart guy, and he’s talked himself into the idea that its fine. We’ve had so many loopholes and end-arounds via the commerce clause and others that the notion of what is and isn’t Ok for congress to do relates most strongly to all the other stuff they’ve been allowed to do. Healthcare? Interstate commerce. End of story.

Not enough folks have watched the constitutional store over the years. Every time congress wanted to do something, they went about it in an “ends justifies the means” way, viewing the constitution as an obstacle, and working around it. And now, we’re stuck with that.

The penalty’s a 2.5% tax on income that’s capped at $750. That’s why some Republicans are arguing it’s a tax increase.

And if you didn’t know that you probably didn’t read the rebuttal by the other guy.

This scheme, however, runs afoul … of the Constitution, which bars the imposition of direct taxes by the federal government unless apportioned among the States. It bears emphasizing that the Supreme Court has consistently taken a broad view of what constitutes “direct taxes,” holding that they encompass many different types of levies. For example, in Pollock v. Farmers’ Loan & Trust Co., the Court struck down an unapportioned federal income tax as a direct tax. In the 1934 case Helvering v. Independent Life Insurance Co., the Court indicated that a tax on the value of real estate is properly classifiable as a direct tax and, hence, is unconstitutional. While these are admittedly old cases, there are no superseding judicial doctrines that would cast doubt on their continued validity. Indeed, it took the passage of the Sixteenth Amendment to cure this problem, but that amendment only allows the federal government to levy unapportioned direct taxes on income.

(Emphasis in original; citations omitted.) So the issue is not merely that Nick’s criticism missed the mark—which would have been fine, and would have merited more cordial response—but its demonstration that he didn’t bother to read the material we’re talking about. That leaves him in no position to criticize my comments. Not only does he not know what he’s talking about, he doesn’t know what I’m talking about, either!

Now, all of that is foolish, but not necessarily idiotic. When his error was pointed out to him, however, instead of conceding fault and actually reading the article Frank linked to, which would be sensible, Nick gets himself all puffed up. “How dare you catch me in the act! I shall repeat the same inapt point, only louder, and with a quote from the inapt text!” That is the sum and substance of his 9:03 comment, and it is idiotic.

What do you think you’re doing? You know the rules. That was completely uncalled for and Nick didn’t do anything to provoke it. His commentary was thoughtful enough for you to respond in kind.

Next time don’t be so quick to anger.

I eagerly await your next move, which I am sure will be the argument that the Sixteenth Amendment has broad sweep because any tax on anything can be characterized an income tax if it is paid out of incomes. Please consider that proposition laughed at and move on to the next ill-considered argument.

Try reading the article that Frank linked to (and on which I was commenting). Therein, you’ll find the answer to your question addressed explicitly and directly, so your reply is revealing. Read Rivkin & Casey’s comment on Balkin’s reply.

Read the 16th Amendment:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

@Simon: What are you talking about? There is no apportionment requirement for a tax on individual income.

Try reading the article that Frank linked to (and on which I was commenting). Therein, you’ll find the answer to your question addressed explicitly and directly, so your reply is revealing. Read Rivkin & Casey’s comment on Balkin’s reply.

KK, I suspect that I would have been catatonic before National League of Cities v. Usery, glum after Garcia v. San Antonio Metro, and outright despondent after Union Gas. God bless William Rehnquist, however — who would be well on his way to being patron saint of federalists were it not for the pesky lutheranism ;) — because things started to look up in the 1990s, and I truly believe that between what Rehnquist did and what the Federalist Society has done, there is good reason to believe that real, meaningful limits on Congress may ultimately return. To be sure, those limits will probably not be as constricting as I would like; they will certainly not be as constricting as Richard Epstein and Ron Paul would like, but that isn’t the point. And even if Raich is retrenchment, it is not nearly as troubling vis-a-vis Lopez et al as the truly aberrational decision in Katz is vis-a-vis Seminole Tribe et al. Personally, I think there is a case to be made for Raich‘s correctness, and Justice Scalia made it well in his concurrence, although I’m still on the fence. Nevertheless, while I may sometimes feel glum about the future of subsidiarity as a paradigm, federalism as a doctrine, and judicial enforcement of either, I have always in mind that there are far darker days for all three barely twenty years behind us.

Congress, in other words, cannot regulate simply because it sees a problem to be fixed

From US Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Their argument about the commerce clause is similarly non-convincing.Health Insurance is a financial product. In other words the Congress, to provide for the general welfare of the United States, is requiring all of it’s legal residents buy health insurance or pay a penalty. The penalty is uniform throughout the United States.

@Frank
There will doubtless be a legal challenge. Just as there were several legal challenges regarding Obama’s birthplace. These challenges probably won’t be dismissed so quickly, but they won’t succeed either.

You might get some symbolic victory. For example have the penalty renamed a tax, or forcing Congress to exempt mountain men who never cross the state line. But I doubt it. Maybe in the bad old days of the 20s, but not in 2009.

Heck one of the precedents the anti-Refrom guys cite has already been overturned.

@Simon:
What are you talking about?

There is no apportionment requirement for a tax on individual income.

Hasn’t been since 1913

(I do think that KK is needlessly pessimistic, however, about the chances of reviving meaningful enumerated powers limits on Congress, even after Raich.)

David Rivkin and Lee Casey hold the position that a mandate to purchase individual health insurance would be found unconstitutional by our current Supreme Court as an over-reach of the Commerce Clause…

Are we supposed to believe that SCOTUS suddenly knows the exact size and shape of trucks that can and cannot be driven through this loophole?

It’s been how long since McCain-Feingold, and that hasn’t been overturned despite including plain violations of the BoR? My point?Shouldda hapopoened, Didn’t.

So I can’t see SCOTUS dragged into this. I’d be shocked to see this reform legitimately turn on the rectitude of the thoroughly abused commerce clause. The fed have used this clause to regulate just about whatever they feel like if it nominally involves commerce. This train left the station long, long, ago.

So I think this is bluster. We may well see a ton on bandwidth expended on serious blather about it, but nothing will come of it. Defining the limits of the commerce clause has been too neglected for too long to stop this train now.

But it is a complex enough issue to be argued in the courts, and its a mistake to assert, as Klein does, that it is “of course” constitutional. I suspect supporters are taking that tact, even if they don’t believe it, in order to get it passed and then deal with the constitutionality issue later. It would save time if we had a EU-style panel that looked at constitutionality first.

gerryf – I wonder if an increase in payroll tax, with a government-issued voucher for basic health insurance, would be a better system. The payroll tax could be adjusted monthy to meet costs (although the current payroll tax overfunds Social Security and Medicare, it is likely to be insufficient in a few years.)