Unconstitutional Care
The ObamaCare tax penalty is unconstitutional, write Kenneth Blackwell and Kenneth A. Klukowski at the WSJ:
The Justice Department announced last week that it would defend the new federal health-insurance mandate as an exercise of Congress's "power to lay and collect taxes," even though Barack Obama had insisted before the bill's passage that it was "absolutely not a tax increase." The truth is the mandate is not a tax--and if it were it would be unconstitutional.A tax is when the government takes money from individuals, puts it in the Treasury, and plans to spend it. With the health-insurance mandate, the government is not taking money from private individuals; rather, it is commanding them to give their money to another private entity, not to the Treasury. If individuals don't obey the mandate, they pay a penalty to the Treasury. But penalties aren't taxes. The mandate is legally separate from the penalty.
Even if the Justice Department were to get the mandate considered a tax, it would be an unconstitutional one. Unlike states, the federal government has limited jurisdiction. Under the 10th Amendment, the federal government has only those powers enumerated by the Constitution, and all other powers are reserved to the people or the states. Every federal action must be authorized by a constitutional provision. If there is no such provision, then the action is unconstitutional. No provision of the Constitution authorizes the federal government to command people to buy insurance.
This is just another sign of the twisted logic they are using to justify their actions.
Jim P. at July 22, 2010 5:46 AM
The tenth amendment is about as relevant these days as letters of marque and reprisal. If it were taken seriously, 90% of what the federal government does would be thrown out.
Rex Little at July 22, 2010 6:37 AM
There's a piece missing to the tax side of the argument. If the no-insurance penalty is treated as a tax, then it is a direct tax -- a tax on one's person, as opposed to a tax on income or transactions. It's an "existence tax", if you will. Article I of the constitution prohibits the federal government from levying direct taxes, except in proportion to the Census (meaning that the tax must be the same amount for everyone). If the tax is only levied against people who don't buy insurance, then obviously it is not "in proportion to the Census". Hence it is unconstitutional.
As pointed out above, if the penalty is a fine, it's an unconstitutional extension of the Commerce Clause and a violation of the Tenth Amendment. The government loses no matter which side it tries to argue. However, we now live in an age of power politics. I expect the Administration will put substantial subtle (or maybe not-so-subtle) pressure on the Supreme Court to acquiesce. If they do so, the lid is off -- the federal government has unlimited authority, and the Tenth Amendment is a dead letter.
Cousin Dave at July 22, 2010 6:56 AM
If you are still under the belief that the Constitution is alive and well I've got some prime swampland to sell you. Please see the 14th amendment. By the way I'm an American, not a US citizen, there is a difference, especially when it comes to income tax, again see 14th amendment.
jksisco at July 22, 2010 7:55 AM
Of course, if you buy your insurance, either directly or through income deduction, directly from the Federal Health Service (or whatever our version of the NHS would be called), then you're not being forced to buy something from a private entity. Problem solved.
JKSisco -- American versus non-U.S. citizen: could you elaborate? Do you live in one of the territories? Resident alien?
old rpm daddy at July 22, 2010 9:11 AM
Attention! BIG NANNY has spoken!! Now do as you are told.
Unconstitutional? Afer VAWA, IMBRA, etc., that is a nearly meaningless term.
Jay R at July 22, 2010 12:11 PM
For practical purposes, the Constitution means what SCOTUS says it means. A few more appointees like Kagan and Congress will be mandating that we eat our fruits and vegetables every day.
Dwatney at July 22, 2010 5:28 PM
Isn't a mandate different from a law? A law states you must do something and a mandate simply means that there are laws about it if you choose to participate, right? Many people get confused about that when it comes to vaccines, thinking there are laws, when there are only mandates regarding immunizations. It's just another scare tactic to get people thinking they have to pay, when they really don't.
Gspotted at July 24, 2010 11:13 AM
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