Haven't we tortured American English enough? Since when can a mandate be defined as a tax? Just for fun I looked up mandate in my Webster's Dictionary. Basically it is a command or order. True, one can be ordered to pay a tax, but the order is not the tax. I guess once we accepted multiple and creative definitions of "is" anything goes from our public officials.
My point is that the mere statement that the "mandate is a tax" is nonsensical, or at least an oxymoron. And if that is the case, how could this be the basis of judging the constitutionality of this momentous legislation?
I forced myself to read some of the Supreme Court's decision. (I don't recommend this on a full stomach.) Right there in the first paragraph it explains the individual mandate, which requires most Americans to maintain "minimum essential" health coverage. Those who do not comply must make a "shared responsibility payment" (the creative language belongs to Congress here) to the Federal Government.
A few paragraphs later we learn from Chief Justice Roberts that the individual mandate must be construed as imposing a tax. The reason he gives is that the individual mandate commands individuals to purchase insurance and that the Commerce Clause does not give Congress that power. Therefore, in the following pages he explains it must be a tax. No matter that Congress, and President Obama, went to great extremes in passing the bill to call it a penalty or a shared responsibility payment.
Does it seem to you that Roberts wanted a way for this legislation to muster the constitutional scrutiny, so a mandate becomes a tax? His opinion says Congress does not have the power to order citizens to purchase things under the Commerce Clause (Amen), so this mandate must be a tax. The logic is: it must be a tax because that is the only way we can uphold this thing!In trying to substantiate the illogical, Chief Justice Roberts cites a previous decision, Hooper v. California, 155 U.S. 648, 657, in that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." That's probably a good principle to keep the Court from a heavy-handed, overruling of Congress's duly passed legislation signed by the President. However, there is no acceptable precedent for unreasonable, no make that illogical and disastrous, construction.
Next step: repeal the Act. To be addressed in a future blog, of course.
Dave Yasko wrote this to me in an email:
ReplyDeleteWasn’t Obama’s argument, and the entire Left’s main argument that it wasn’t a tax? http://youtu.be/rL7ak__MGyw
Well I’ll be…they found 5 people smarter than Barry Hussein that said he was wrong. Not a direct (per capita) tax, not an excise tax and not an income tax. Those are the only 3 choices, right?
Yes, it can be repealed, but by Roberts’ decision Thursday the gov’t. can now tax anything they want. Tax you for not buying something. Tax you for doing nothing.
There is no silver lining in this, I don’t care if Conservatives say “Well the Court ruled 7-2 that the Federal government cannot compel the states to participate in a federal program.”
Wow.
Every time this Court manages to allow the smallest shred of the Constitution to survive, we’re supposed to clap like seals! This puts the power of taxation into the very branch of gov’t. that is the least accountable to the citizenry! We can’t invert the Constitution by imposing a tax through judicial legislation the 4 dissenters said. The question was never whether congress had the power to frame Obamacare as a tax, but whether or not it was written as one. Until now, not a single court has interpreted Part 5000A (the penalty section) as a tax in order to sustain its constitutionality because they knew it would force them to confront a difficult question: That is whether this is a direct tax that must be apportioned to each state by its population
Article 1 Section 9 clause 4.
They knew this would necessitate a re-writing of it. Yet that is what exactly what Roberts did. He figured it out. He ignored Wickard v Filburn (commerce clause)and read Nancy Pelosi’s and everybody else’s mind.
We now have Constitutional precedent!
That’s the problem!