Notes From Babel

The Obamacare Constitutionality Litmus

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This NY Times piece on the Obama Administration’s defense of Obamacare outlines a couple different ways Americans might feel either outraged or accustomed to the creeping expanse of federal authority and progressive politics enshrined in the PPACA (which the American Health Lawyers Association calls a “jobs bill for attorneys”:

  • Obama “absolutely reject[ed]” the notion that Obamacare is a tax.  Now that the Administration’s lawyers have decided that calling it a tax is the best way to uphold its constitutionality of Obamacare, guess what?  It’s a tax.
  • In defense against the lawsuit brought by the states against Obamacare, the Administration’s lawyers refer directly to Wickard v. Filburn, whose controversial watershed holding was based on the reasoning that any trivial, private, individual choice can have a Butterfly Effect of affecting “interstate commerce,” and thus can be regulated by Congress.

Randy Barnett adds further cause for concern:

The Supreme Court has defined a tax as having a revenue raising purpose–a requirement that is usually easy to satisfy. But in the section of the act that specifically identifies all of its revenue raising provisions for purposes of scoring its costs (which is a big deal), the insurance mandate “penalty” goes unmentioned.

Unlike any other tax, according to the act, the failure to pay the penalty “shall not be subject to any criminal prosecution or penalty with respect to such failure.” Nor shall the IRS “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 “levy on any such property with respect to such failure.”

. . . .

But it gets still worse. For calling this a tax does not change the nature of the “requirement” or mandate that is enforced by the “penalty.” ALL previous cases of taxes upheld (when they may have exceeded the commerce power) involved “taxes” on conduct or activity. None involved taxes on the refusal to engage in conduct. In short, none of these tax cases involved using the Tax Power to impose a mandate.

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Written by Tim Kowal

July 18, 2010 at 8:48 pm

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