[dragonwriter]

> It was not originally presented as a tax, but as fees.

How something is presented is tangential, and often outright irrelevant, to its Constitutional status. You statement that the Court struck down the mandate but offered a tax as an option is simply, directly, factually wrong. They upheld it, which is exactly the opposite of striking it down.

> but both taxes are indeed at the discretion of the House, or we wouldn't have the impasse that we currently do.

No, if anything relevant to the current situation (in which the critical thing which allows it to produce a shutdown is spending, not taxes) was at the discretion of the House, we would not have an impasse. The House would dictate their will, and it would be done -- no impasse.

We have an impasse because, like any law, appropriations (whether in the form of the budget or more limited appropriations bills) must be approved by both houses and the President (or by both houses with sufficient support to override a veto), and there is a lack of consensus between the three (two colletive and one individual) actors involved, not because the matters involved are at the discretion of any one of those actors.

[bmelton]

I feel like this argument is one of semantics, so I'll just attempt to clarify.

Justice Roberts, the swing vote, would have struck down the penalty but for his characterization of it as a tax, as well as having characterized that tax as a flat penalty against which modifiers were imposed. As a result of its tax characterization, it violates the Origination Clause of the Constitution, which has never been remedied.

Whether not the House approves of a new tax is at the discretion of the House. You are clearly correct in that both wings of Congress need to approve of it, but either party can reject and be simply done.

I appreciate the corrections, but much of them were, I feel, implicit in the tone of my original post, though yes, I did overstate the NFIB decision.

[dragonwriter]

> As a result of its tax characterization, it violates the Origination Clause of the Constitution

That's a fine assertion, but if it were true then it would not be a valid exercise of the taxing power, and since the Supreme Court ruled that it was a valid exercise of the taxing power, a majority of the Supreme Court clearly does not believe that it is true. And note that the issue of whether it was a proper exercise of that power was briefed in the case by both supporters and opponents of the bill.

The procedural history of PPACA is, to say the least, convoluted, but the actual bill in which it was contained was a bill originating in the House (as was the reconciliation measure immediately passed amending it which is generally viewed as part and parcel of PPACA) [1] -- so, strictly speaking, the bill did originate in the House (every single letter in the final bill was the result of an Amendment in the Senate, and the House then concurred in the Senate amendments, but the Origination clause explicitly permits the Senate to amend bills subject to it the same as any other legislation.) So, even ignoring the fact that NFIB v. Sebelius essentially forecloses the argument anyway, the facts seem pretty clearly contrary to your Origination Clause claim.

> Whether not the House approves of a new tax is at the discretion of the House.

The House did approve of the individual mandate in PPACA. Otherwise, there wouldn't be an Act of Congress to be the subject of NFIB v. Sebelius.

[1] for details, including an in-depth discussion of the procedural history, see http://www.aallnet.org/main-menu/Publications/llj/LLJ-Archiv...

[bmelton]

That'll take a bit to read, so don't take my non-response as ignoring you. Thanks for the link, I'll get back to you.

[canweriotnow]

I think you're also forgetting: post Marbury v. Madison, the meaning of the Origination Clause is at the discretion of the Supreme Court.

Match point.

[bmelton]

Well, that the Constitutionality of all things is ultimately determinable by the Supreme Court is of course subject to judicial review, there was nothing in Marbury v Madison that has any direct impact on the Origination Clause whatsoever.

I don't mean to be dismissive, but I don't see what point it is that you're making. Please clarify?