Archive for February, 2011

Commerce, Anyone? A Pre-Payment Fantasy

February 28, 2011

    Although what was known as “Obamacare” was struck down as unconstitutional by the Supreme Court, it was re-enacted after Obama’s re-election in 2012, when both houses of Congress were again under Democratic control.  The new version retained the same “mandatory health insurance” provision that killed the law before, but after Obama’s next two Supreme Court appointments tipped the ideological balance towards a broader authority for Congress, it survived the next challenge.

   This left a bitter taste for conservatives, who relentlessly pumped their resentment through battalions of cable wags and pundits, and released blogs of rage like scud attacks.  In academic and NPR circles, it was a tussle between the dominant liberal, Democratic side holding that an open-ended, unfettered commerce clause was the only way to solve the intractable problems of modern life, and Republicans, conservatives and libertarians holding to the more traditional, limited view.

   But the debate reached down into the popular consciousness as well.  A new nomenclature was invented to describe the conflict.  The problem was made more difficult by the fact that most citizens had no idea what the commerce clause was. For instance, those holding the liberal view were called “clausists”, and the conservatives held the “anti-clause” view.  However, Pew poll results revealed mass confusion about the terms, with multitudes of responders thinking it was about people who didn’t believe in Santa Claus, resulting in several death threats.  Adherents on both sides hurriedly tried substitutes, to no avail.  One abandoned choice for the liberals was “commies” — and the conservatives were the “anti-commies” — but this also skewed negative in the polls because people said it reminded them of  something that had once upset them, but they couldn’t remember what it was.

   Nevertheless, the bitter debate did not impede new, even bolder extensions of federal power, the most notorious being the mandatory purchase of burial plots or cremation charges.  Originally buried, so to speak, in an appropriations bill, the charge was imposed on all taxpayers who had not already paid for their future sendoffs.  All IRS forms would have a place to list the pre-paid funeral and burial plot purchases.  If “No purchase” was checked, or it was left blank, an assessment of 0.35 of the AGI was placed in a general fund to cover these costs.  The argument was that the cost of  burials was rising at triple the inflation rate — due to the scarcity of land — and that  eventually the taxpayer was going to get stuck with it, so why wait.

   It came as no surprise that the law would be challenged as unconstitutional.  However, the debate over the applicability of the commerce clause to this most personal function took some unexpected turns.  One group of plaintiffs relied less on whether funerals were a “commercial activity” than about whether they should be exempt because, as adherents of Ray Kurzweil’s program for the eternal cybernetic renewal of the self, they were never going to die.

   But the lawsuits from such “fringe” groups were flicked off summarily.  The judicial “hot money” was on whether the “death penalty”, as it came to be called, could survive a claim that a citizen’s death could not be an “activity” within even the broadest view of federal powers.  The red and blue state divide stayed true to form when it reached the Supreme Court, with two blue circuits confirming constitutionality, and two red ones rejecting it.

   Finally, the big day arrived.  It was briefs drawn at the SCOTUS Corral, but when the smoke cleared, the hated law still stood.  The deciding vote came down to finding that “dying” was, indeed, a commercial activity.

    The decision rested on subtleties of language that compared an earlier draft of the law with the final version.  Specifically, the earlier draft had read: “…the necessary preparation for death, if not thus far undertaken, shall be deemed satisfied by the smaller of an amount equal to the determined rate for all deceased users in the current fiscal year, or 0.35% of AGI, or, when submitted in quarterly schedule, the smaller of 0.35% of AGI or the proportionate rate for the deceased units of chartered status within that quarter.”

   The Court noted how the Congressional record documented the dispute that led to the final version; namely, that the term “dying” be substituted for “death” because the latter suggested a final stasis of the taxpayer, whereas “dying” captured the broadest range of the final life experience, including all emergency measures to avoid it.  Thus, “…preparation for death” became “…dying and death-related preparations.”  It was held that this was sufficient commercial “activity” for constitutional purposes.

   The challengers, mindful of the newly liberal makeup of the Court,  had prepared themselves for the worst, and their major argument seemed a desperate “Hail Mary” pass.  They claimed that the use of “dying” was ambiguous, and therefore fatally flawed, because the “dying” taxpayer may fool everybody by recovering, which would have the effect of making the payment an unconstitutional “taking” as based on a false description of the penalized activity.

   But the Court made short work of this.  While they agreed that such a result would be an improper taking, that was no reason to declare the law unconstitutional, since the penalty could always be applied as a “credit” refundable on the eventual date of delivery.


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