Bumped up from October, 2010.
In light of the current arguments before the Court, I’m bumping this refresher on the relevance of the tax angle. This was posted over a year ago as the challenge to Obamacare passed a major hurdle on its way to today’s hearings with SCoTUS. Some of the nuances being discussed, such as the distinction between a “tax” and a “penalty” and a “mandate”, may seem like details to the layman, since they all compel you to pay. But under the Constitution, the government’s powers are limited, at least in theory. Thus these distinctions are important.
A post by Maynard
Perhaps you saw this Drudge-linked article:
U.S. District Judge Roger Vinson allowed two major counts to proceed: the states’ challenge to the controversial requirement that nearly all Americans buy insurance and a required expansion of the Medicaid program.
In his ruling, Vinson criticized Democrats for seeking to have it both ways when it comes to defending the mandate to buy insurance. During the legislative debate, Republicans chastised the proposal as a new tax on the middle class. Obama defended the payment as a penalty and not a tax, but the Justice Department has argued that legally, it’s a tax.
“Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check,” he wrote.
The question here is whether the insurance mandate, which is at the heart of Obamacare, is in fact a tax. This is a crucial point. Until and unless martial law is declared, the Federal government must justify its laws under the powers granted it by the Constitution. There’s no way the government can justify compelling an individual citizen to purchase a particular product. Such a mandate would be illegal and unprecedented. This is not analogous to, for example, requiring insurance on a car, since your decision to acquire a car was voluntary. You chose to engage in an act of commerce, and thus subjected yourself to a regulated transaction or environment. On the other hand, the insurance mandate is a regulation on your very existence. You see the problem? If this stands, then by the same logic the government can likewise regulate your diet. After all, if you’re not eating right, you’re exceeding your health care footprint. Next thing you know, the government will require you to purchase (and consume) a box of shredded wheat every week.
So the government can’t, under the law, make you buy a thing. But, as we know all too well, the government has the power to tax. Therefore, the legal defense of Obamacare must necessarily be that the mandate is merely another tax. It must be a new and pretty weird tax, in that it’s paid to a third party. But it’s a tax. That’s the argument the Justice Department attempted to make.
The problem here is that we and Congress were told, endlessly and ad nauseam prior to Obamacare being passed, that the health care mandate was not a tax. Do you remember? This CNN report from last year is typical of what we heard:
In a testy exchange on ABC’s “This Week,” broadcast Sunday, Obama rejected the assertion that forcing people to obtain coverage would violate his campaign pledge against raising taxes on middle-class Americans.
“For us to say you have to take responsibility to get health insurance is absolutely not a tax increase,” Obama said in response to persistent questioning, later adding: “Nobody considers that a tax increase.”
…Asked again about critics calling the requirement to pay for health insurance a tax increase, Obama said: “My critics say everything is a tax increase.”
Yesterday they swore the bill wasn’t a tax. Today they swear it is. So this bill was deliberated and passed because lies prevailed over truth. And now Obama and his lackeys want to shrug off yesterday’s deception while holding onto to their ill-gotten gains. But finally a judge has indicated there’s a limit to government duplicity.
If the foregoing doesn’t sound like a big deal, it’s because we’ve become so acclimated to lying politicians and lunatic government that we no longer expect Washington to meet even the most minimal standards of decency or veracity or sanity.
Back to the original news report…
[Judge] Vinson ruled that [the insurance mandate is] a penalty, not a tax, and must be defended under the Commerce Clause and not Congress’s taxing authority.
So it seems the judge incorporated a principle of “truth in advertising” in his ruling. Since the mandate was explicitly sold as a non-tax, and it was understood by the legislators that passed it that is was, in their professional opinions, not a tax (or so they told us), it must be subsequently defended as a non-tax. The case will presumably end up in the Supreme Court, unless Obamacare is repealed before it gets there.
If the mandate were to be upheld by the Supreme Court under the Commerce Clause, then that would be another nail — perhaps the final nail — in the coffin of the notion of a government with any limits to its power over the people. Let’s hope it doesn’t come to that.