This is a response to the following posting. My words are in regular font.

Shawn, a fine is not a tax.

You are forgetting a few things. For example, that if the court is asked to decide between two possible readings and one of those readings will save an statute from unconstitutionality, they will as a rule go with the one that saves the statute. This principle of American constitutional law goes back explicitly to at least the days of Joseph Story who sat on the Marshall Court and who wrote in one of his decisions that "[n]o court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution."{1} Justice Oliver Wendell Holmes made the same point a century later writing "the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act."{2} For "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality."{3} None of this is new.

As for your claim a fine is not a tax, you obviously are not familiar with The Child Labour Cases most notably Bailey v. Drexel Furniture Co{4} where the Court determined that a purported tax levied by the statute was actually a penalty disguised as a tax. Also applicable here is the License Tax Cases{5} where the Court held that fees assessed by federal licencees for selling lottery and alcohol products were permissible under the federal taxing power despite their classification as a "fee."{6} And in New York v. United States (1992), the Court upheld as a tax something referred to not as a tax but instead as a "surcharge." For as the Court explained in the syllabus of yet another case, "[a]n exaction which in reality is a penalty cannot be converted into a tax by so naming it; its purpose and operation determine its character."{7}

In other words, your simplistic unsubstantiated assertion does not stand.

Notes:

{1} Parsons v. Bedford, 3 Pet. 433, 448–449 (1830)

{2} Blodgett v. Holden, 275 U. S. 142, 148 (1927)

{3} Hooper v. California, 155 U. S. 648, 657 (1895)

{4} Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)

{5} License Tax Cases, 72 U.S. 5 Wall. 462 462 (1866)

{6} Which is in essence what you are claiming above.

{7} United States v. Constantine, 296 U.S. 287 (1935)

On Law Enforcement Reform And Conservative Intransigence:

This is a further response on social media to the following material:

Seven Ideas For Law Enforcement Reform

The first installments in this series can be read HERE, HERE, HERE, HERE, and HERE. My words will be in regular font.

I think doing away with qualified immunity makes cops prey to ambulance chasing lawyers. They don’t need to have evidence to begin a lawsuit and bankrupt cops who don’t make a whole lot of money to begin with. If there is clear evidence of misconduct, that’s another thing.

Besides, is this something Congress ought to be focusing a lot of energy on? Where’s the evidence of systemic police brutality and abuse?

On qualified immunity...

Qualified immunity hinders the protection of civil rights in a number of ways: 

1. First and foremost, qualified immunity means that victims of brutality or harassment by law enforcement generally get no relief in court and have no ability to hold offending officers accountable for their actions. That means the officers who commit the brutality and harassment—and the governments that employ them—have little incentive to improve their practices and follow the law. This undermines safety and justice for everyone, and particularly for people of color or vulnerable people who are most likely to be the target of police misconduct. 

2. Qualified immunity doesn’t just reduce a person’s chance for victory in a civil rights lawsuit; it means many claims will never be brought to court in the first place. As part of a civil rights law passed in 1976, Congress tried to create an incentive for lawyers to represent victims in civil rights actions and ensure that constitutional rights are safeguarded. To do so, Congress guaranteed that lawyers who represent victims in successful civil rights actions would be able to recover the cost of their time. A huge number of lawyers who bring civil rights actions rely on this law or on the possibility of contingency fees in the event they succeed. 

But when a case is dismissed based on qualified immunity, the victim loses and attorneys are not able to recover the fees for their work. Thus, as a result of the Supreme Court’s aggressive defense of qualified immunity, victims of civil rights violations may be less likely to find a lawyer who is willing to represent them and suits will not be brought in the first place. 

3. Qualified immunity freezes constitutional law. As mentioned previously, in order to overcome the defense of qualified immunity, a victim must show that law enforcement violated “clearly established” law by pointing to a case arising in the same context and involving the same conduct. This has given courts a shortcut to resolving cases: Instead of reviewing, analyzing, and applying constitutional doctrine to determine whether a person’s rights were violated, a court can instead simply say that there has been no sufficiently similar case in the past. The result is that fewer courts ever resolve constitutional issues, and constitutional rights are hardly ever “clearly established.”
This shortcut has led to some outrageous results. In an opinion filed in March 2019, for instance, the U.S. Court of Appeals for the Ninth Circuit held that officers were immune from liability for the deliberate stealing of property simply because there was no “clearly established” case law governing the circumstances. In that case, police officers who had executed a search warrant seized about $275,000 in property: approximately $150,000 in cash, and another $125,000 in rare coins, but stated that they had seized only $50,000. In other words, the officers attempted to steal $225,000 while on the job. 

The Ninth Circuit dismissed the lawsuit against the officers, granting qualified immunity because it had “never before addressed” whether officers executing a warrant could steal property. And, according to the court, it was not sufficiently “obvious” to police officers that stealing property under the guise of executing a search warrant violated an individual’s constitutional rights. As a result, the Ninth Circuit said that it “need not” even address whether the officers’ stealing was illegal. 

This example should show the degree to which qualified immunity opens the door for wrongdoing on the part of law enforcement. No reasonable officer needs a case to tell them that stealing property is wrong. But it’s worse than that. Because the court did not say that the conduct was illegal, the law is still not clearly established that officers may not deliberately steal property when exercising a search. So an officer could, again, claim immunity for the same behavior. 

As Fifth Circuit Judge Don Willett described this phenomenon: Victims of abuse “must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability.” In other words, Judge Willett said, “Heads defendants win, tails plaintiffs lose.” [LINK]