That’s a good one! You could always count on ol’ Abe for an apt statement.

You know, if you ever find yourself in too good a mood, I mean in really good spirits, and find yourself just a little too optimistic and content with state of our nation, simply dig up an old Lincoln speech and give it a glance. Then google an Obama speech and do the same.

You’ll be right as rain.

Seems to fit this thread somehow.

Yes, matters of the law generally require a great deal of precision. Unfortunately, precision generally requires a great deal of effort, which many well-intentioned people just can’t seem to muster. So they reverse engineer incompatible ideas until they find the components they need to create the simpler reality that they’re after. You and I can pluck away several important distinctions from the concepts of taxes and theft and eventually reach the simple conclusion that they are exactly the same thing. It doesn’t mean they are.

KS:

See comment above. Also, I think Ken B pretty much covered why functional equivalence alone doesn’t make X the same as Y.

Congress needs a vehicle to impose a fine or penalty. You need to enter certain realms in order for Congress to have access to such a vehicle. Congress can’t penalize you for freely choosing not to enter into one of those realms. So mandate-as-penalty is unconstitutional.

If I ignore a tax break, I’m out the money. If I ignore a tax, which you argue is the same as a penalty, I go to jail. So it seems there is a difference. A big one.

Finally, I’m glad you agree with us that intentions matter. If the intention of a tax is to raise revenue, and the intention of the mandate is not, then they are different.

I tried to keep this simple. I really did.

This is about as meaningful an argument as (and I paraphrase), ‘if we let the government force us to purchase health insurance omg they’ll prevent me from speaking German’.

Anyway, these arguments are getting weaker and weaker. So I’ll say this: if you guys agree that a ‘tax’ is constitutional but a ‘penalty’ would not be, I’m just going to go ahead and say okay, I’ve won this debate. After all, all the individual ‘mandate’ says is, “if you don’t purchase private health insurance and can afford it, we’re going to penalize you by taxing you”.

New meaning for ‘the death tax’.

“When you are issued a speeding ticket, are you being taxed, penalized, or both? If your answer is both then I assume you are arguing from a position of functional equivalence. People often do this and it doesn’t hold up when contemplating legal concepts.”

The same.

You are being taxed for driving over 65 mph.
You are being penalized for driving over 65 mph.

These, to me, are functionally equivalent on every level. The constitutionality of a ‘tax’ is the same as the constitutionality of a ‘penalty’.

“Contemplate murder and manslaughter. Functionally, they are the same. Someone kills someone else. Essentially, the only difference is malice—in other words, intent. Do you think the law should treat murder and manslaughter the same? Do you think the intent behind a penalty is the same as the intent behind a tax? This is important. Think about it.”

Now, these are NOT functionally equivalent. Intention to kill someone else is not the same as accidentally killing someone else. Hence, these can be treated differently.

———

But I guess it begs the question. Say the individual ‘mandate’ is a penalty, not a tax. How would that make it unconstitutional?

After all, when the federal government provides a tax break for people who own homes vs. rent homes, it is basically providing a ‘penalty’ to those who rent. Yet this is clearly constitutional. How are they different?

An example I gave is my taking $5 from Steve’s wallet, everyone observing, and no-one doing anything. It’s very different if Steve said I could or if I just did it and no-one objected. The consequences are different bec ause implicit agreements, precedents,emotions and beliefs are consequences.

KS was quire explicit in an earlier comment, saying that if X=Y then the constituionality of X = the constituionality of Y. But of course some equals are more equal than others.

“Of course, I don’t think there is a difference, because anything that’s a tax can also be seen as a penalty, and vice versa.”

When you are issued a speeding ticket, are you being taxed, penalized, or both? If your answer is both then I assume you are arguing from a position of functional equivalence. People often do this and it doesn’t hold up when contemplating legal concepts.

Contemplate murder and manslaughter. Functionally, they are the same. Someone kills someone else. Essentially, the only difference is malice—in other words, intent. Do you think the law should treat murder and manslaughter the same? Do you think the intent behind a penalty is the same as the intent behind a tax? This is important. Think about it.

You are free to enlighten me on the difference.

Of course, I don’t think there is a difference, because anything that’s a tax can also be seen as a penalty, and vice versa. But I’m not willing to rule out the possibility there might be a functional (not semantic) difference, if you’re willing to articulate one.

Essentially all the individual ‘mandate’ says is: if you don’t purchase health insurance, we’ll tax you. And in that light, it’s not exactly unprecedented or unconstitutional.

We are officially nowhere.

The SCOTUS and I will go wallow in our ignorance now.