All the courts looking at health care law say mandate is penalty, not a tax

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The Hill:

Federal judges who have ruled on the constitutionality of healthcare reform have split along but party lines, but they all agree on one thing: The law’s fine for failing to obtain health coverage is a penalty, not a tax.

The three federal judges who have upheld the law so far are all President Clinton appointees, while the two judges who struck it down are Republican picks, so the fact that there is common agreement on the point could be significant.

Outside legal circles, the distinction may seem like a semantic argument, but the distinction between a penalty and a tax became a sticking point during the reform law debate.

The Constitution grants the federal government wide latitude to impose taxes — but not penalties — for the population’s general welfare.

The Supreme Court is expected to take up the healthcare law in the near future, and the question of whether the so-called individual mandate to buy coverage is constitutional will loom large. If the court finds that the mandate is not within the power of the legislative branch, they could strike it down, potentially crippling the entire law.


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The administration's lawyers had argued it was a tax in order to avoid the more difficult task of proving not buying insurance was an act of interstate commerce. The Democrat judges found a more expansive reading of the interstate commerce clause of the constitution. This is close to a "penumbra" reading of the text of the constitution.
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