4 votes

Is the ObamaCare tax, for not buying health insurance, a direct tax?

I would say yes.
If so is it not subject to Article 1 Section 9 of the Constitution, “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
Is the ObamaCare tax laid in proportion to the census as required? No.
Many websites posting the Constitution add the disclaimer that Article 1 Section 9 was clarified by the 16th Amendment. The 16th Amendment states “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.”

The ObamaCare tax is not laid and collected on income so the apportionment waiver does not apply. And since the 16th Amendment did not abolish Article 1 Section 9 does the ObamaCare tax, or any direct tax not on income, not need to be apportioned among the states to be constitutional? I would think so or where am I going wrong?

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fireant's picture


Any discussion of the nature of the tax overlooks the fundamental fact courts have no authority to impose a tax. The statute was passed specifically NOT as a tax, but a penalty. It is the court which declared it a tax, and all taxation must originate in the House and pass both chambers. It matters not what type tax it is or if it measures up to constitutional requirements. It is invalid due to it's method of implementation.

Undo what Wilson did

Cruz filibuster: Mike Lee disputes the Supreme Court's power

Senator Mike Lee disputes the Supreme Court's judiciary power to rewrite the individual mandate provision as a tax.

It is not a direct tax.

For starters, just to look at the law itself, the ACA specifically exempts some people from the requirement and says that there shall be no penalty imposed on them.

It then gives a list of ways someone still otherwise subject can have the penalty waived for "hardship."

Thus the penalty/tax is avoidable.

It is NOT levied on EVERY individual.

It is ONLY levied as a sur-tax on people who already are liable for the so-called income tax.

Intentionally or not, Roberts exposed the income tax as being very limited in an effort to find constitutionality for the ACA.

The answer is simple - the income tax does NOT apply to everyone.

Thus the ACA mandate does not apply to everyone.

If you are not required to file 1040s, or equivalent, you aren't required to report a purchased insurance plan.

The kicker is most likely, YOU are not required to file a 1040, etc. But you have been duped into ASKING to be treated as IF you were required.

And now that you have volunteered to pay a tax you probably don't owe, not only is it real difficult to change that situation, but you now either have to purchase health insurance, or pay more tax.

And for the record, the 16th amendment did NOT create a new class of taxation, that is, direct un-apportioned taxes.

It CLARIFIED that "income taxes" are NOT direct, thus they do not NEED to be apportioned.

They are, and always have been in the nature of an "excise" which is a tax upon a privilege.

Which begs the question, "what privilege is being taxed when they take money out of your check when you work?"

Do you not have an inalienable right to trade and acquire property to meet your needs and pursue your own happiness, especially at least to survive?

Of course you do.

And isn't it impossible to "tax" an inalienable right?

Of course it is.

So that means there MUST be some privilege somewhere there, or else, you've been duped into ASKING to be treated as IF you were enjoying a privilege.

And who is the IRS to tell you that you can't pay a tax you don't owe?

But you can be sure, once you CLAIM you owe the tax by filing forms, they'll be expecting you to pay up.

That's why your returns and W-4s can and will be used against you in court - to counter your frivolous claim that the tax does not apply to you, "Because you see your Honor, right here, the defendant thinks it DOES apply to them, because these forms are ONLY for people who the tax applies to and the defendant signed it under penalty of perjury that they believe themselves to be just such an individual - what the law defines as 'taxpayers'"

Get it now?

And if you are still wondering what the privilege is that Congress is taxing, and measuring the tax by the amount of income received from the privilege, take a look at the 1909 CORPORATE Tax Act. For that is where you will find the ever elusive definition of "income" (without modifiers like "gross" or "adjusted") and what the Supreme Court has plainly and clearly stated is to forever be used as the definition of "income" unless the States ratify a new Constitutional Amendment. (Congress cannot define "income" to mean whatever it wants, because the word appears in the 16th, and since the 1909 Act was the main source of contention at the time of ratification, the SCOTUS ruled that is what the People understood "income" to mean when they ratified the amendment, and so it will forever remain the definition, unless amended again)

In Robert's opinion, he

In Robert's opinion, he spends a couple of paragraphs explaining why the tax is not a direct tax. I'm not particularly convinced by his argumnet, but here it is:

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.

There may, however, be a more fundamental objection
to a tax on those who lack health insurance. Even if only
a tax, the payment under §5000A(b) remains a burden
that the Federal Government imposes for an omission, not
an act. If it is troubling to interpret the Commerce Clause
as authorizing Congress to regulate those who abstain
from commerce, perhaps it should be similarly troubling to
permit Congress to impose a tax for not doing something.
Three considerations allay this concern. First, and most
importantly, it is abundantly clear the Constitution does
not guarantee that individuals may avoid taxation through
inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are
expressly contemplated by the Constitution.

I consider the big glaring mistake in this analysis to be the last sentence that I quoted. He uses the example of a capitation, but a capitation is a direct tax (explicitly mentioned in the constitution as such) and is applied to each person (not the inactivity of not buying health insurance).

I largely agree with the following (old) WSJ editorial. It's really worth reading the whole thing if you have the time and are interested in this subject.


Finally, I would highly recommend that you visit the website the Volokh Conspiracy. Randy Barnett, who could be considered the 'architect' of the activity/inactivity argument, has many good posts on this topic.