User:Jorfer/Sandbox5

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Is US Health Care Reform a Bill of Attainder[edit]

it is referenced here and likely many other places as well

http://theliberatortoday.blogspot.com/2010/12/more-on-judge-hudsons-rulling-on.html —Preceding unsigned comment added by 71.174.128.244 (talk) 16:25, 15 January 2011 (UTC)

Another reference to Obamacare as a forbidden "bill of attainder" http://www.johndennis2010.com/node/342271.174.128.244 (talk) 15:12, 16 January 2011 (UTC)

It needs a better source though is what Fat&Happy is saying. The argument is weakened by the fact that due process does not need to occur before a fine is issued in order to be due process; that is what the appeals process is for. The interpretation given would undermine a whole host of Federal fines (e.g. illegal dumping). The bill that the source states does not provide for due process after the fine is what it terms "Romneycare", which is a Massachusetts bill and not the national bill. There is no given evidence that the national health care bill does that. This suggestion is thus an empty one and thus a violation of WP:Undue.--Jorfer (talk) 15:52, 16 January 2011 (UTC)
(edit conflict)
Due process can only be delivered through the courts and last I checked the IRS is not part of the judicial branch, and therefore is not authorized to punish people for an infraction of the law. BTW: EWhat ever happened to "innocent until proven guilty in a court of law"?71.174.128.244 (talk) 17:48, 16 January 2011 (UTC)


A) Neither of the sources supplied so far could be considered reliable sources, which is reason enough to revert the addition.
B) The addition expounds on the subject beyond even the opinions in the non-reliable sources, clearly crossing into original research territory.
Fat&Happy (talk) 15:56, 16 January 2011 (UTC)
It is only OR if I came up with it. Unless you are going to make the ridiculous claim that I am the person writing in both the above links, then it is not OR.71.174.128.244 (talk) 17:52, 16 January 2011 (UTC)

An additional Constitutional violations of Obamacare by which it can be challenged n- pert below the fine cannot be appealed as implied above. http://sv-se.facebook.com/topic.php?uid=2256460769&topic=32998

5th Amendment ObamaCare uses the IRS to enforce a $5000 fine if you do not comply. There is no trial and you can not appeal. The 5th Amendment to the Constitution clearly states: shall any person[sic] be deprived of life, liberty, or property, without due process of law; —Preceding unsigned comment added by 71.174.128.244 (talk) 17:57, 16 January 2011 (UTC)

The relevant section of the actual document can be found here Wikisource:Patient Protection and Affordable Care Act/Title I/Subtitle F/Part I. First of all, it is not a $5,000 fine in general: "The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount...IN GENERAL- Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750". That makes it a $2,250 maximum fine without what should be a relatively minor cost-of-living adjustment mentioned below in that text. Second, it may not even be an enforceable law due to the section quoted below. See this article Is the Mandate Toothless?.
`(A) WAIVER OF CRIMINAL PENALTIES- In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
`(B) LIMITATIONS ON LIENS AND LEVIES- The Secretary shall not--
`(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
`(ii) levy on any such property with respect to such failure.'.
Third, the executive branch gets to determine how the law is implemented (whether there is due process or not). The fact that "The penalty provided by this section shall be paid upon notice and demand by the Secretary" allows significant leeway when it comes to this. If due process is not provided, the law itself would not be ruled unconstitutional; the executive action would.--Jorfer (talk) 20:16, 16 January 2011 (UTC)
The latter part is a WP:OR violation. In my edit summary I was just focusing in on the first sentence, which is a WP:UNDUE as well as WP:RS violation.--Jorfer (talk) 21:20, 16 January 2011 (UTC)
The executive branch "gets to determine whether there is due process or not" shows your ignorance of basic constitutional principles. The constitution "FORBIDS" punishment without due process - i.e. bills of attainder. Due process can only be given in a court of law, and in the case of an offense against the law, that MUST happen in front of jury of your peers unless you waive your right to a jury trial. To repeat the US Constitution FORBIDS punishment without due process. This requirement enforces English common law under which any fine is "null and void" unless determined and imposed by a jury of your peers. That part of English Common law was fought for and won thorough armed revolt and was enforced by the Magna Carta, much like the Founding Fathers fought for and won their right to a "jury trial" during the Revolution. Read the Declaration of Independence if you don't believe me, check the section about deprivation of jury trials in that document as a reason to engage in armed revolt. —Preceding unsigned comment added by 71.174.128.244 (talk) 22:21, 16 January 2011 (UTC)


As for punishment without due process being a small minority opinion, check out this quote by a US Supreme Court Justice

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.71.174.128.244 (talk) 22:35, 16 January 2011 (UTC)

Of course if the executive branch chooses not to provide due process, it is unconstitutional; that is my point. Anyways the bill itself provides for due process. The quote below refers to subchapter b of chapter 68, which refers to the Internal Revenue Code that this amends, which can be found here: http://www.law.cornell.edu/uscode/html/uscode26/usc_sup_01_26_10_F_20_68_30_B.html .

`(1) IN GENERAL- The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68. (Wikisource:Patient Protection and Affordable Care Act/Title I/Subtitle F/Part I)


Here is a quote from subchapter B of chapter 68 demonstrating the due process given:

(c) Extension of period of collection where bond is filed

(1) In general

If, within 30 days after the day on which notice and demand of any penalty under subsection (a) is made against any person, such person—

(A) pays an amount which is not less than the minimum amount required to commence a proceeding in court with respect to his liability for such penalty,

(B) files a claim for refund of the amount so paid, and

(C) furnishes a bond which meets the requirements of paragraph (3),

no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until a final resolution of a proceeding begun as provided in paragraph (2). Notwithstanding the provisions of section 7421 (a), the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court. Nothing in this paragraph shall be construed to prohibit any counterclaim for the remainder of such penalty in a proceeding begun as provided in paragraph (2).

(2) Suit must be brought to determine liability for penalty

If, within 30 days after the day on which his claim for refund with respect to any penalty under subsection (a) is denied, the person described in paragraph (1) fails to begin a proceeding in the appropriate United States district court (or in the Court of Claims) [1] for the determination of his liability for such penalty, paragraph (1) shall cease to apply with respect to such penalty, effective on the day following the close of the 30-day period referred to in this paragraph. (http://www.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00006672----000-.html)

The important matter though is that you need to find WP:RS that make a claim that the health care bill violates the "bill of attainder", which would probably be one that explains how it does which none of your sources do.--Jorfer (talk) 01:46, 17 January 2011 (UTC)

Let me point out that the process for collecting is more restrictive than that for the normal process of collecting unpaid taxes; meaning that in order for this bill to be violating the "bill of attainder", the Internal Revenue Code of 1986 would have to be ruled unconstitutional.--Jorfer (talk) 02:02, 17 January 2011 (UTC)
It is my understanding that Obamacare punishes those who refuse to comply with a higher tax rate. Am I wrong? 71.174.128.244 (talk) 13:52, 17 January 2011 (UTC)
From the article "Also starting in 2014, the law will require people who do not have health insurance which meets a nationally approved minimum standard to pay a tax penalty." - To again restate the obvious - A penalty is a punishment - and forbidden when not imposed by the courts after a trial. 71.174.128.244 (talk) 14:04, 17 January 2011 (UTC)
I answer this question under the heading below.--Jorfer (talk) 16:28, 18 January 2011 (UTC)

No due process and no trial - penalties to be collected as if they were taxes[edit]

New section so that this comment is not lost in the muddle

TITLE 26 > Subtitle F > CHAPTER 68 > Subchapter B > PART I > § 6671 § 6671. Rules for application of assessable penalties

The penalties and liabilities provided by this subchapter shall be paid upon notice and demand by the Secretary, and shall be assessed and collected in the same manner as taxes. 71.174.128.244 (talk) 13:58, 17 January 2011 (UTC)

Again, "bill of detainder" applies equally to taxes. The government cannot take your taxes using force (e.g. wage garnishment) without the availability of due process. That doesn't mean they have to provide due process before they ask for your taxes. Again, there are plenty of fines that the federal government already assesses through taxes that have been deemed to be perfectly constitutional. "Shall be" in the wording above if it was in a non-legal context might be better phrased "is expected to be", since the exceptions given for due process still apply.--Jorfer (talk) 16:25, 18 January 2011 (UTC)
Please note: this talk page is for discussion of the article itself and how to improve the writing contained within it, not the subject itself. If you feel you want to discuss the subject in length, then Wikipedia is not the place for that and that there are other internet forums where you can go to discuss this at length. Thank you for your understanding. Brothejr (talk) 18:01, 18 January 2011 (UTC)
Yes, Wikipedia is not a forum. If the IP does not come up with reliable sources per WP:RS, it is not going into the article: end of discussion.--Jorfer (talk) 23:02, 18 January 2011 (UTC)

Taxes as a punishment was an objection to the move by Congress to tax obscene Wall Street Bonuses a few years ago after the Wall Street bailout. Congress decided not to pass those targeted taxation laws because it was determined that any such law could be challenged as a bill of attainder and would fail as they were designed to punish without any chance of a trial.

BTW: You are seriously lacking in basic knowledge of legal principles - punishment is supposed to happen AFTER a trial and any compelled evidence (such as information required on a tax return under threat of fines - or threat of confiscation of a tax refund) is inadmissible and unusable in a court of law. 71.174.128.244 (talk) 15:03, 19 January 2011 (UTC)

Repeating quote

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 16671.174.128.244 (talk) 16:50, 19 January 2011 (UTC)

Part of the problem is you are wrongly directing discussion related to "bill of atainder" with that of self-incrimination, which is your BTW point. If Rehnquist had said the above statement in response to the health care bill, it would probably not be original research, but since you are the one applying it to the health care bill, it is original research, and a clear violation of WP:OR.--Jorfer (talk) 20:02, 19 January 2011 (UTC)
If you object to a part of the addition then you need to let me know what you object to. I am listing a number of constitutional violations on Obamacare. Compelling information on a tax return (a private paper) that could lead to a penalty is still forbidden per US Supreme Court rulings - see US Supreme Court language cited - this cited ruling was affirmed in Miranda and still stands.

http://supreme.justia.com/us/384/436/case.html

"illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure."Boyd v. United States, 116 U. S. 616, 116 U. S. 635 (1886). The privilege was elevated to constitutional status, and has always been "as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 562 (1892). We cannot depart from this noble heritage.

Last I checked We cannot depart from this noble heritage. is an affirmation of a prior ruling and a strong affirmation at that.71.174.128.244 (talk) 00:11, 21 January 2011 (UTC)

≥== RE: Claims of OR ==

For a concept to be barred from wikipedia on grounds of OR it has to be shown to be ORIGINAL with the poster. I have posted links to 3 cites on the illegality of Obamacare as a "bill of attainder" and links to Supreme Court cases showing that "compelled" production of private papers which would provide information subjecting one to a fine/penalty is also forbidden by the 4th and 5th amendment.

Unless someone wants to make the ridiculous claim that I am the author of all 3 links posted and ALSO the author of US Supreme Court language cited, please stop making these bogus OR objections.71.174.128.244 (talk) 00:00, 21 January 2011 (UTC)

The second sentence point from your addition on is original research. You cited a judge not talking about the national health care bill yet you are claiming it applies to the national health care bill. From WP:OR: "Drawing conclusions not evident in the reference is original research regardless of the type of source. It is important that references be cited in context and on topic." Thus your additions are a clear violation of WP:OR.--Jorfer (talk) 00:23, 21 January 2011 (UTC)ered by the
I said that the method of penalizing people for noncompliance of Obamacare are forbidden because they are bills of attainder and cited 3 sources that also state the same. Are you taking the ridiculous position that I am the original author of all 3 of those postings? Unless you are then it is not OR.71.174.128.244 (talk) 02:44, 21 January 2011 (UTC)

RE: second sentence complaint above - What a Bill of attainder is is not MY definition but the US Supreme Courts. As stated above by a US Supreme Court Justice a bill of attainder is a punishment imposed without a trial. Last I checked a trial is part of due process and ALSO last I checked due process can only be delivered by the court system. Something belonging to the Judicial branch and not the IRS which is part of the Executive Branch.71.174.128.244 (talk) 03:06, 21 January 2011 (UTC)

Attentive readers would have notice that the term "bill of attainder" links to the wiki article on that subject, which will provide more information on this aspect of Constitutional law. 71.174.128.244 (talk) 03:07, 21 January 2011 (UTC)

and in case that does not provide enough info here is a quote from the US Supreme Court - http://supreme.justia.com/us/381/437/index.html US v Brown - The Bill of Attainder Clause is to be liberally construed in the light of its purpose to prevent legislative punishment of designated persons or groups. @ 71 U. S. 447-449.71.174.128.244 (talk) 03:18, 21 January 2011 (UTC)

My mistake; I meant "point" (I thought without looking at it again that it was the second sentence). This "A punishments for a failure to provide information on whether one has health insurance is also in violation of the 4th and 5th Amendment, as any such punishment would be a "compelling" against a persons right not to provide information against himself when that information can be used to impose a penalty or other form of punishment." and everything after is a violation of WP:OR.--Jorfer (talk) 03:24, 21 January 2011 (UTC)

Here is the addition with my comments in bold so we can identify the problem.

Potential Constitutional level challenges include a violation of the "bill of attainder" prohibition within the US Constitution.(http://theliberatortoday.blogspot.com/2010/12/more-on-judge-hudsons-rulling-on.html There is also another avenue of challenge to Obamacare that I don't believe has been fully explored, the prohibition on Bills of Attainder.) This needs a better source

Bills of attainder include laws that punish without due process. This is fine

The punishment can be the standard fines and other assorted penalties but may also be nonstandard penalties such as a higher tax rate. This needs a source, but that should be no problem

A punishments for a failure to provide information on whether one has health insurance is also in violation of the 4th and 5th Amendment, as any such punishment would be a "compelling" against a persons right not to provide information against himself when that information can be used to impose a penalty or other form of punishment. (http://supreme.justia.com/us/116/616/case.html Boyd v US The seizure or compulsory production of a man's private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty or forfeiture, is equally within the prohibition of the Fifth Amendment.)(Boyd v US It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment; a compulsory production of a party's private books and papers to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the Amendment.) The mandate may also be in violation of the 5th Amendment prohibition on the use of private property to fund a public purpose without compensation, violating the basic right to the free use of ones property to satisfy the owners needs instead of public needs. Except for the actual quotes, this is all original research

--Jorfer (talk) 03:36, 21 January 2011 (UTC)

Also, the bill requires insurers to report who has coverage, not patients: "Every person who provides minimum essential coverage to an individual during a calendar year shall, at such time as the Secretary may prescribe, make a return described in subsection..." (Wikisource:Patient Protection and Affordable Care Act/Title I/Subtitle F/Part I). The government finds out who doesn't have insurance by method of elimination. That way, the person doesn't have to testify against himself or herself for the federal government to know.--Jorfer (talk) 03:54, 21 January 2011 (UTC)

Citing US Supreme Court language is NOT OR. The US Supreme Court has stated that pretty much ANYTHING that will compel a person to provide information can be a compelling. Imposing a fine for a failure to provide information (or confiscating any refund due, because of an incomplete return) is a "compelling" and forbidden. The US Supreme Court has ruled on this issue repeatedly. This link shows a case over a hundred years old where many of the older cases are cited. http://supreme.justia.com/us/168/532/case.html Alternately you can read Miranda http://supreme.justia.com/us/384/436/case.html Reading and citing US Supreme Court ruling is not OR - if it was then reading and citing science journals, newspapers, and anything else citeable would be OR.71.174.128.244 (talk) 14:27, 22 January 2011 (UTC)

Jorfer

I have provided 3 cites showing others believe that Obamacare is a bill of attainder. Why are you continuing to argue that this point originated with me?

Also why are you objecting to citing US Supreme Court rulings? On a question of law, the US Supreme Court is considered not just a reliable source but the ULTIMATE authority.71.174.128.244 (talk) 15:13, 22 January 2011 (UTC)

Your addition seems to be using a lot of interpretation without third party verifiable reliable sources. Before this should go any further, it is highly suggested that the IP editor post what news articles, not blog posts or editorials, that back up what they are trying to add. This criticism of the bill needs to be shown that it is a criticism major enough to be covered by multiple sources. However, if it is just backed up by previous supreme court rulings that can be interpreted, then this material should not be added. Put it simply: where are the news articles to back this up? Brothejr (talk) 15:19, 22 January 2011 (UTC)

Compellings from Bram v US - to clarify whether - we will fine you or confiscate your refund if you don't give us this information is a "compelling"

The following actions have been ruled to be "compellings" by the US Supreme Court and IMO are less of a compelling then "we will fine you if you don't give us this information" or "we will keep your tax refund if you don't give us this information".

http://supreme.justia.com/us/168/532/case.html from Bram v US

In the cases following, statements made by a prisoner were held inadmissible because induced by the language set out in each case: in Rex v. Griffin, (1809) Russ. & Ry. 151, telling the prisoner that it would be better for him to confess. In Rex v. Jones, (1809) Russ. & Ry. 152, the prosecutor saying to the accused that he only wanted his money, and, if the prisoner gave him that, he might go to the devil, if he pleased. In Rex v. Kingston, (1830) 4 Car. & P. 387, saying to the accused: "You are under suspicion of this, and you had better tell all you know." In Rex. v. Enoch, (1833) 5 Car. & P. 539, saying: "You had better tell the truth, or it will lie upon you, and the man go free." In Rex v. Mills, (1833) 6 Car. & P. 146, saying: "It is no use for you to deny it, for there is the man and boy who will swear they saw you do it." In Sherrington's Case, (1838) 2 Lewin C.C. 123, saying: "There is no doubt, thou wilt be found guilty: it will be better for you if you will confess." In Rex v. Thomas, (1833) 6 Car. & P. 353, saying: "You had better split, and not suffer for all of them." In Rex v. Simpson, (1834) 1 Moody 410, and Ry. & Mood. 410, repeated importunities by neighbors and relatives of the prosecutor, coupled with assurances to the

Page 168 U. S. 553

suspected person that it would be a good deal worse for her if she did not, and that it would be better for her if she did confess. In Rex v. Upchurch, (1836) 1 Moody, 465, saying:

"If you are guilty, do confess. It will perhaps save your neck. You will have to go to prison. If William H. [another person suspected, and whom the prisoner had charged] is found clear, the guilt will fall on you. Pray, tell me if you did it."

In Reg. v. Croydon, (1846) 2 Cox C.C. 67, saying: "I dare say you had a hand in it. You may as well tell me all about it." In Reg. v. Garner, (1848) 1 Den.C.C. 329, saying: "It will be better for you to speak out." —Preceding unsigned comment added by 71.174.128.244 (talk) 15:21, 22 January 2011 (UTC)

Again, you are falling into interpretation. Where are the verified reliable news sources to back this up? Prove to me and everyone that what you are pushing has been covered by multiple news sources. Show us news articles that are not blogs, editorials, or opinion pieces that cite this criticism of the bill as a major criticism? Also, please stick to a single section when discussing this thank you. Brothejr (talk) 15:28, 22 January 2011 (UTC)
I don't know what world you came from but last I checked when someone threatens you, then you are "compelled" - the listed rulings above are pretty much all "implied threats" - when a thread is "defined" it makes it even clearer. "We will keep your tax refund if you don't fill out the tax return with the information we want" is an implied threat. "We will fine you if you don't fill out your tax return with the information we want" is a "defined" threat. Both are compellings for information that can later be used to punish you.71.174.128.244 (talk) 15:54, 22 January 2011 (UTC)
Again, but you give no evidence that this is what the health care bill makes you do (which it doesn't as mentioned above), and even if you did per WP:OR you would have to provide a source that comes to the conclusion that the bill itself is a constitutional violation on this ground.--Jorfer (talk) 16:05, 22 January 2011 (UTC)
Will IRS will send you back your tax refund without a completed return? and does or does not Obamacare include penalties for failure to provide the requested information on your tax return? If it doesn't how is the IRS going to enforce it?71.174.128.244 (talk) 16:10, 22 January 2011 (UTC)
Again, the insurers are required to testify against you, which is not testifying against yourself. The insurers will include all the people that are on their insurance to the federal government, and if you are not on it, you don't have qualified insurance.--Jorfer (talk) 16:16, 22 January 2011 (UTC)
Last I checked the insurers don't prepare my tax return. Do they prepare yours?71.174.128.244 (talk) 16:46, 22 January 2011 (UTC)
They don't, but they prepare all sorts of forms as a requirement of business that they have to submit to governments. Again, the information saying whether you do or do not have insurance is not going to be on your tax return. I referenced the actual bill above, but here is a source stating it clearly:

IRS Commissioner Douglas Shulman testified before a hearing of the House Ways and Means Committee March 25 that the IRS won’t be auditing individuals to certify that they have obtained health insurance. He said insurance companies will issue forms certifying that individuals have coverage that meets the federal mandate, similar to a form that lenders use to verify the amount of interest someone has paid on their home mortgage. "We expect to get a simple form, that we won’t look behind, that says this person has acceptable health coverage," Shulman said. "So there’s not going to be any discussions about health coverage with an IRS employee." In any case, the bill signed into law (on page 131) specifically prohibits the IRS from using the liens and levies commonly used to collect money owed by delinquent taxpayers, and rules out any criminal penalties for individuals who refuse to pay the tax or those who don’t obtain coverage. That doesn’t leave a lot for IRS enforcers to do. (http://www.factcheck.org/2010/03/irs-expansion/)

So now you have to find a reliable source that says otherwise. Good luck.--Jorfer (talk) 16:52, 22 January 2011 (UTC)
If you read the rulings I cited, it is a compelling to force a person to provide private papers that contain information that could lead to punishment. Those insurance forms that you cite are "private papers" and a person is under no obligation to include them with his tax return.71.174.128.244 (talk) 17:00, 22 January 2011 (UTC)
The person does not have to put it on their tax form, because the insurers mail them directly to the federal government.--Jorfer (talk) 17:02, 22 January 2011 (UTC)

This is a really really simple concept which you can't seem to grasp. Let me simplify it for you. Does a person have to "in some manner" (say by a checkmark in a box beside a "YES" or a "NO") have to say on his tax returnthat he does or does not have insurance?71.174.128.244 (talk) 17:09, 22 January 2011 (UTC)

There is no checkbox.--Jorfer (talk) 20:49, 22 January 2011 (UTC)
I need to point out that Wikipedia is not a forum in that this talk page is not here to discuss the bill itself, but the article. Also, please note that any attempt to say: the law says this, the supreme court said that, etc, etc, is considered original research and your personal interpretation. Before any of this could ever be included in the article, again the IP editor needs to show RS news articles that highlight this criticism. Any attempt to argue the law is not what Wikipedia is about. If you feel you need or want to argue the law, there are many forums out there that you can do that. Again, please stick to improving the article and not law discussions. Brothejr (talk) 17:34, 22 January 2011 (UTC)
It is not OR to cite US Supreme Court language. Many wiki article do so. 71.174.128.244 (talk) 17:38, 22 January 2011 (UTC)
A quick check shows a multitude of US Supreme Court cites on the wiki article for the 1st amendment - I'm sure the other amendments are treated the same way. To easily confirm check http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution71.174.128.244 (talk) 17:48, 22 January 2011 (UTC)
OK then, what is the exact ruling of the Supreme Court on this exact bill/reform? Not another bill, not another case, not some brief a supreme justice put out on a different case. If you look at the other articles that cite the supreme court, which you seem to be pushing almost exclusively, you will notice that the rulings are directly related to the articles that use them as a source. However, I will reiterate, please produce news articles, not supreme court rulings, that back what you want to add. Please provide some sources, other then supreme court rulings which can be interpreted, that back up what you want to ask. Brothejr (talk) 20:11, 22 January 2011 (UTC)
As you should well know, the US Supreme rules only on issues brought before it. While it has not yet ruled on Obamacare, it has ruled on the what a bill of attainder is - aka punishment without trial - which from all indication Obamace does, whether or not a person can be compelled to provide information against himself- which Obamacare does in fact do, and also on whether a persons property can be used for a public purpose without compensation, which Obamacare also does.71.174.128.244 (talk) 22:32, 22 January 2011 (UTC)
BTW: You cannot limit what I can use as cites and as Supreme Court rulings are acceptable wiki references I choose to use them. 71.174.128.244 (talk) 22:51, 22 January 2011 (UTC)
Actually, I can per Wikipedia rules and we are all expected to abide by Wikipedia's rules of sourcing. All sources need to be directly related to the article and cannot use any sort of synthesis, original research, or interpretation to be applied to the article. Basically, the source needs to say exactly what you are saying. Plus, this is not a courtroom, law office, but an encyclopedia. That means it's what the sources say that matters most, not how we interpret them. Brothejr (talk) 10:45, 23 January 2011 (UTC)
The source (the US Supreme Court) states that "the compulsory production of private papers" which contain information that could lead to a fine, penalty or a forfeiture is a violation of the 4rh and 5th amendments. Last I checked a tax return and all attachments are "private papers". That source also states that one subject to those punishments does not have to produce them, nor aid in any way in their production.71.174.128.244 (talk) 15:29, 23 January 2011 (UTC)
Ok, you seem to be ignoring what Jorfer and I have said over and over and over and over again. Simply put, we're not here to interpret the law. We are not here to interpret what the supreme court might say on this. What we do here is write articles based on sources directly, word for word, related to the subjects of the articles. We've explained to you many times that we cannot except any sort of interpretation of the law or supreme court ruling from you. Again, like we've said many times before everything you are pushing for must be backed up by news sources/books/etc that are not opinion pieces and say exactly what you are saying. Simply put and for the final time: any sort of direct quoting of laws, supreme court rulings, or legal opinions on of things not directly related to this bill (I.E. they have to be on this exact bill) cannot be used to prove your point. This isn't me just saying this, this is Wikipedia itself saying this. I think if you post up another text from a law or supreme court ruling not directly written on the HCR bill/bill of attainder criticism, then you don't really want to improve the article, but instead are here to push a point, then maybe you need to move on. Brothejr (talk) 15:54, 23 January 2011 (UTC)
You seem to miss the point that the US Supreme Court has already interpreted the law and unless it reverses itself, something it does once in a blue moon, the compelled production of private papers will "REMAIN UNCONSTITUTIONAL" as it already is and has been for centuries.71.174.128.244 (talk) 16:12, 23 January 2011 (UTC)

5th amendment rulings[edit]

http://www.welcome.freeenterprisesociety.com/grand_jury_rights.htm

"Thus, although the Fifth Amendment may protect an individual from complying with a subpoena for the production of his personal records in his possession because the very act of production may constitute a compulsory authentication of incriminating information ..., a seizure of the same materials by law enforcement officers differs in a crucial respect -- the individual against whom the search is directed is not required to aid in the discovery, production or authentication of incriminating evidence."

Please pay close attention to the individual against whom the search is directed is not required to aid in the discovery, production or authentication of incriminating evidence.

also Chief Justice Marshall, quoted in Counselman v. Hitchcock, 142 U.S. 547, 565, 12 S.Ct. 195 (1892), maintained that a witness could plead the Fifth Amendment not only in situations where his answer to a question would directly implicate him in a crime, but also in response to questions the answer to which would provide a link in the chain of evidence needed to convict the witness of a crime.

Also please pay close attention to also in response to questions the answer to which would provide a link in the chain of evidence71.174.128.244 (talk) 17:21, 22 January 2011 (UTC)

Again, the bill requires no such thing, and again, per WP:OR if you want to make this point, you have to use a reliable source that talks explicitly about the national health care bill.--Jorfer (talk) 20:53, 22 January 2011 (UTC)
So how does the IRS know whether to punish you for not having insurance?71.174.128.244 (talk) 22:33, 22 January 2011 (UTC)

Sourcing[edit]

Heading 1[edit]

Above I posted 3 links showing Obamacare may be a bill of attainder - here is another from a more reputable source -

http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument

Those who frame the healthcare reform debate in constitutional terms have invoked a hodgepodge of sometimes-unrelated arguments, the most common being:

  • that the legislative branch lacks the authority to impose such a mandate under its power to tax or its power to regulate interstate commerce;
  • that what the bill calls an indirect, "excise" tax is actually a direct tax that violates the Constitution's requirement that such taxes be apportioned by population;
  • that the tax violates the Fifth Amendment's due process takings clause;
  • that the excise tax qualifies as a prohibited bill of attainder; and
  • that the tax violates First Amendment freedom of religion.71.174.128.244 (talk) 23:08, 22 January 2011 (UTC)

This is a good source. As such, though, it does point out an argument against such a claim:

Similarly, the charge (circulated mostly by bloggers) that a healthcare excise tax violates the constitutional ban on any targeted and punitive bill of attainder (article I, section 9, clause 3) is rejected even by some who have other constitutional problems with the Democrats' bill. George Clarke, a partner in the tax practice at Miller & Chevalier, wrote in a recent essay for BNA's Daily Tax Report that the excise tax would not likely qualify as a bill of attainder because "the intent of the tax appears to be to affect citizens' behavior prospectively in a way the government finds desirable (arguably a nonpunitive legislative goal), rather than to punish members of the citizenry for their choosing to remain uninsured.

Both points would have to be represented per WP:NPOV if it is incorporated. Also, the claim that the bill is an illegal bill of attainer may fail WP:UNDUE as the author of the article is clearly indicating that it is among the weaker three argument presented. It seems significant enough to include though in a balanced way. Per WP:Consensus, though, we need to wait to see what the other editors have to say.--Jorfer (talk) 00:55, 23 January 2011 (UTC)

I think if it can be neutrally written to show both what the criticism is and also why it is not a bill of attainder as point out above by the source, then yes we should include it. Brothejr (talk) 10:41, 23 January 2011 (UTC)
I don't think any of you are aware of the prior English Common law which the bill of attainder prohibition was designed to protect. That prior law goes back as far as the Magna Carta and is the right to be punished "only" by a jury of your peers for even the smallest infraction. http://www.britannia.com/history/docs/magna2.html

"For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood."

At the time of the Revolution, Blackstone in his Commentaries on the Laws of England stated that "any fine not imposed by a jury was null and void". Since you people more then likely don't know who Blackstone was, let me give you a hint. He is probably more important to law then Newton was to science. From the US perspective the bill of attainder prohibition also serve to ensure that the "people serve as check on government" by ensuring that all governmental punishment MUST be imposed through a jury or else that punishment is "null and void". 71.174.128.244 (talk) 15:23, 23 January 2011 (UTC)
Like I said above in the other section, that "prior English Common law" excerpt you posted means very little. Posting supreme court rulings excerpts means very little. Posting law excerpts means very little. Continually berating us because we don't understand the law like you do won't achieve anything. Wikipedia is not here to interpret the law. Wikipedia is not here to make judgements, push points, etc. Wikipedia is here to report facts based on what reliable sources say. Each article needs directly related sources to back up the information contained within the article. While that first source was a good start, any posting of law excerpts/rulings/finding/etc is only interpretations unless they exactly pertain to this bill. (I.E. are written directly for this bill and no other.) Brothejr (talk) 16:02, 23 January 2011 (UTC)
It actually means quite a lot, since the Constitution protects prior English Common law. If you look up the Declaration of Independence you will find that one of the reasons for the Revolution was deprivation of trial by jury by King George. If you look up the background for the US Constitution you will finds that the US Constitution would not have been passed except for the "Massachusetts Compromise" in which the supported of the Constitution said that they would support a Bill of Rights, which includes the "right to trial by jury" and the "right not to be compelled". The English people defended that right through revolt and the people of the original 13 colonies did the same. People serving as a check on government through trial by jury, is not a "small" thing. The Founding Fathers thought it was worth killing and dying for.~!71.174.128.244 (talk) —Preceding undated comment added 16:26, 23 January 2011 (UTC).

──────────────────────────────────────────────────────────────────────────────────────────────────── The material that the ip keeps adding is almost entirely original research and synthesis. As are the points being made here on the talk page referring to 'English Common law' etc....If anything is to be added here, it would have to be something akin to what Jorfer points out above. Stating for the most part these claims are refuted and do not hold water. Dave Dial (talk) 16:41, 23 January 2011 (UTC)

Given the level of rhetoric and rancor surrounding health care, I don't see any point in mentioning challenges that have been refuted and do not hold water, unless those challenges are mentioned by the predominant sources as being significant. Theories advanced by bloggers and commentators that never go anywhere aren't pertinent. - Wikidemon (talk) 18:03, 23 January 2011 (UTC)
The addition material was to put the "bill of attainder" prohibition in historical context. Attempts to deprive the people of their "retained power" to inflict punishment on lawbreakers is an "usurpation of a retained power" and historically that kind of conduct by governments has led to revolt and warfare. 71.174.128.244 (talk) 23:20, 23 January 2011 (UTC)
Huh? That's pretty far afield. We generally don't try to put contemporary government programs into a global historical jurisprudential context except in the rare case where it's relevant to the issue. Here, there have been some constitutional challenges but they have not been along these lines as far as I can tell. If you can find some mainstream sources that take give serious credence to the bill of attainder stuff, or say that this represents a serious challenge to the law or a significant opinion held by commentators, we can look at that. If not, I think it's pretty clear from the conversation to date that there won't be consensus to add it to the article. - Wikidemon (talk) 01:43, 24 January 2011 (UTC)
Huh? Aren't you aware that abuse of governmental powers has historically let to revolts? Removing a check on government "such as trial by jury" increases that abuse and increases the chance of revolt and warfare. The "bill of attainder requires punishment to go through the courts where the people can serve as a check on abusive government practices. Removing that requirement for "trial by jury" was among the things that led to the revolt resulting in the Magna Carta. The Revolution of the original 13 colonies was also partly about restoring the rule of law and "trial by jury" because its removal allowed judges appointed by England to rule on issues as they wished and not on the facts of the case/dispute. Complaints in the Declaratoon of Independence incluse

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

For depriving us in many cases, of the benefits of trial by jury71.174.128.244 (talk) 13:56, 24 January 2011 (UTC) 71.174.128.244 (talk) 13:56, 24 January 2011 (UTC)

The tax.com reference above states that the argument is "circulated mostly by bloggers". Inclusion of an argument (and its counterarguments) in this article doesn't depend on a showing that the argument is correct, but it does depend on a showing that it's advanced by prominent spokespersons. A bunch of bloggers saying something doesn't qualify.
All these citations about jury trial are irrelevant. You (the anon IP) write about "the right to be punished 'only' by a jury of your peers for even the smallest infraction". That's right, and anyone who's accused of a criminal offense under the bill would have a right to a jury trial.
Incidentally, you don't help your cause with snide remarks like "you people more then [sic] likely don't know who Blackstone was...." I don't usually try to throw my professional weight around in these discussions, but because you've made it personal, I'll mention that I graduated from law school, qualified for the Order of the Coif, passed the bar exam, and have been in practice for more than thirty years. I've heard of Blackstone. In my opinion, this argument is hogwash. JamesMLane t c 03:47, 24 January 2011 (UTC)
In general a "small minority" of people know their rights and the historical contest of those rights. I firmly believe most wiki editors "have no clue as to who Blackstone was and the importance of his writings". Let me ask you a question, since you seem to think you have a good grasp of legal principles. Are the writings of Blackstone relevant to the interpretation of US law? If relevant - then how relevant - only a little, some, a lot, or highly relevant. 71.174.128.244 (talk) 13:41, 24 January 2011 (UTC)
Not relevant to most Wikipedia articles on federal legislation. This page isn't for a generalized discussion on legal principles, but whether we're going to add something to the article. Inclusion is based on the weight of neutral reliable sources on the subject, not argumentation as to how important something is. We're a compendium of human knowledge, not legal reasoning. - Wikidemon (talk) 20:27, 24 January 2011 (UTC)
You ask, "Are the writings of Blackstone relevant to the interpretation of US law?" As with so many legal questions, the answer is a firm "It depends." Blackstone is a highly regarded authority on English common law. That has in some respects been superseded in the United States by the Constitution and by statutes. The Seventh Amendment, however, preserves the right to a jury trial as it stood in 1789, so common law is particularly relevant in that context. In general, I would say that Blackstone is obviously of great historical importance but of less contemporary relevance. Since the Revolution we've built up our own common law and our own commentators. English precedents are seldom cited in American courts these days. On a matter of interpreting a provision in the Constitution, I'd feel more comfortable citing Laurence Tribe than Blackstone.
Now, with that interesting but irrelevant historical digression out of the way, let me refer you to the justly famous Commentaries on the Policies of Wikipedia, as written on this very page by several Wikipedians. Blackstone didn't write a single word about the PPACA. To take general principles enunciated by Blackstone and use them to reach the conclusion that the PPACA is unconstitutional is original research and synthesis. The final example under WP:SYNTH is directly analogous to what you're trying to do. Consider this discussion of that example, from our official policy:

The second paragraph is original research because it expresses a Wikipedia editor's opinion that, given the Harvard manual's definition of plagiarism, Jones did not commit it. To make the second paragraph consistent with this policy, a reliable source would be needed that specifically comments on the Smith and Jones dispute and makes the same point about the Harvard manual and plagiarism. In other words, that precise analysis must have been published by a reliable source in relation to the topic before it can be published on Wikipedia.

Applying this policy to the current dispute by substituting the terms that are relevant here: Your proposed additions constitute a Wikipedia editor's opinion that, given Blackstone's definition of a bill of attainder, the PPACA commits it. To make your addition consistent with this policy, a reliable source would be needed that specifically comments on the bill of attainder dispute and makes the same point about the PPACA. In other words, that precise analysis must have been published by a reliable source in relation to the topic before it can be published on Wikipedia.
I applied the policy to Blackstone and bills of attainder, but the same is true of the other arguments you've raised. JamesMLane t c 21:54, 24 January 2011 (UTC)
ROTFLMAO! I cited Rehnquist, a US Supreme Court justice on what a bill of attainder is - aka "punishment without trial". I cited Blackstone on "trial by jury" and he said that "any fine that is NOT imposed by a jury is null and void" only to put the bill of attainder prohibition in historical context. The bill of attainder serves to restrict who can impose punishment to the courts, by a jury. While using Blackstone's definition of a bill of attainder would more then likely be out of date, the one by Rehnquist that I cited is not. Try again!71.174.128.244 (talk) 13:47, 25 January 2011 (UTC)


RE: Comments that the tax.com citations comes from "bloggers and is not reliable. It is fact states that it the potential challenges listed come from "legal commentators". I wish you people would stop distorting material just because you don't agree with it. 71.174.128.244 (talk) 14:30, 25 January 2011 (UTC)

Heading 2[edit]

This is one of the cites I used, which I seriously doubt anyone read and deals with punitive taxation of Wall Street bonuses. Per this document taxes "designed to punish" are a bill of attainder because they punishment bypasses the court system.

http://taxprof.typepad.com/files/crs-report-327.pdf

"the strongest arguments against their constitutionality seems to arise from the bill of attainder analysis."71.174.128.244 (talk) 14:28, 24 January 2011 (UTC)

As that article points out "On the other hand, where a burden imposed by legislation is susceptible to explanation by a valid regulatory (non-punitive) purpose, then a court would be likely to find that such legislation is not intended to be punitive.", which is why the tax.com article dismisses it so easily due to the bill's intention to lower the number of insured rather than punish the uninsured. Whatever the case, the national health care bill is another animal than the Wall Street bonuses tax, and any attempt to apply one to another is WP:OR and thus not allowed on Wikipedia.--Jorfer (talk) 16:39, 24 January 2011 (UTC)
Last I checked the only purpose for fines and penalties is to punish. Or are you a mosochist? Lets try this again, Congress was all hot and bothered to punitively tax Wall Street bonuses, and everyone and his brother thought it was OK to do so. Per the report I cited, the Congressional Research Service said that law was going to fail as a bill of attainder. THEN Congress stopped working on the bills to impose those punitive taxes since those punitive taxes were going to fail in the courts pert the advice of their legal advisers, the Congressional Research Service.71.174.128.244 (talk) 13:57, 25 January 2011 (UTC)
  • Comment - Somebody should close these threads. The Ip obviously is not reading OR, Synthesis or RS. Almost every argument is coming from the Ip's own synthesis derived from original research with almost no reliable sources. The personal attacks and continued merry-go-round reasoning is going nowhere. Dave Dial (talk) 15:29, 25 January 2011 (UTC)
I have dealt with the OR complaint "ad nausium". For it to be OR it has to originate with me. It plainly does not. Among the sources I cite are US Supreme Court rulings, a US Supreme Court Justice, and The Congressional Research Service (the legal advisory body for Congress). You can't get much more reliable then that. Again I would like it if you people stop distorting material you don't like such as calling the source of the tax.com material "bloggers" when the author states that they come from "legal commentators" http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument "As if healthcare reform weren't complex enough, a growing chorus of legal commentators is raising alarms that the tax provisions of the mammoth healthcare bills that have cleared the House and the Senate Finance Committee would violate the Constitution."71.174.128.244 (talk) 15:47, 25 January 2011 (UTC)
Agreed, this appears to be original research per Wikiepdia policy. Absent any new arguments, I agree that this discussion has run its course, and there appears to be no consensus to add the material to the article. It would be reasonable to close the discussion if no further objections are raised after a short while. - Wikidemon (talk) 18:06, 25 January 2011 (UTC)
That is what we have been trying to do, but User:71.174.128.244 refuses to give up the WP:OR and WP:FRINGE pushing. Archiving this is unlikely to deter the IP from making additional comments, especially considering the IP has refused to even stay in one heading.--Jorfer (talk) 03:37, 26 January 2011 (UTC)
Once the community has decided the discussion is done, you can close and archive the discussion using the "hat" or similar template. I would do that myself, but I haven't been terribly involved in the discussion to date and I think it's better to leave that for people who have. Just manage the talk page. You can arrange any new headings by moving them into a single heading for the discussion, as I did a few days ago, and if the discussion is closed or collapsed move any new comments into the closed section. That's all, just routine talk page management. Everyone has a right to comment, but there's plenty of precedent around here that if you can't convince people of something you have to put it to rest sooner or later, you can't beat a drum forever. First step is to make sure there is community consensus to wrap it up. I think there is, it's just a "barring any new objections..." kind of thing. After that the rest is pretty simple. - Wikidemon (talk) 05:26, 26 January 2011 (UTC)

BTW: The tax.com article was written before Obamacare was finalized. The article includes the quote "The legislative language -- far from finalized". Of the potential challenges it cites, "the interstate commerce" one has already been brought to bear with come success. The author seems to know what he is talking about. 71.174.128.244 (talk) 16:00, 25 January 2011 (UTC)

"Similarly, the charge (circulated mostly by bloggers) that a healthcare excise tax violates the constitutional ban on any targeted and punitive bill of attainder (article I, section 9, clause 3) is rejected even by some who have other constitutional problems with the Democrats' bill." (tax.com article)--Jorfer (talk) 16:08, 25 January 2011 (UTC)
The Congressional Research Service has stated that taxes imposed "with the intent to punish" would in fact be a bill of attainder, when researching the Constitution challenges facing laws imposing punitive taxation of Wall Street bonuses. The Congressional Research Service is not a "blogger".71.174.128.244 (talk) 16:24, 25 January 2011 (UTC)
They are not saying that it applies to the health care bill. You and the bloggers are.--Jorfer (talk) 16:33, 25 January 2011 (UTC)

Korean War Memorial Coyright Problem[edit]

Commons:Commons:Deletion requests/Images of Korean War Veterans Memorial