The American Spectator : A Tax with Teeth and Clause

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A Tax with Teeth and Clause

By George Neumayr on 12.16.10 @ 6:09AM

The Obamacare penalty and the Constitution.

The implicit argument for the legality of Obamacare is that the country hasn't taken the Constitution seriously in decades. So why start now? Since all branches of the federal government have colluded in ignoring and violating the Constitution for this or that "good" cause over the years, why insist on returning to it? Nancy Pelosi relied on this implicit argument when she sputtered "Are you serious?" to a question last year about Obamacare's constitutionality. Her scoff meant that the matter isn't even debatable anymore; America's de facto new Constitution -- the "living" one that resides in the wills of modern pols and judges -- permits Congress to do anything it pleases in the name of the "general welfare."

Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius sound a similar note when they write that U.S. District Judge Henry Hudson's ruling is an antiquated quibble: "We saw similar challenges to laws that created Social Security and established new civil rights protections. Those challenges ultimately failed, and so will this one."

Holder and Sebelius find it annoying that the states would "dig" up an "old" theory like the Commerce Clause to oppose such obviously altruistic legislation. Holder and Sebelius sniff that the states' reading of the Commerce Clause was rejected "80 years ago."

That Congress can establish whatever tax it pleases in the name of the "general welfare" or ludicrously stretch the Commerce Clause to mean that nonactivity counts as regulatable "interstate commerce" was rejected over 220 years ago. Forcing every person in every state into purchasing health insurance was not one of the enumerated powers of Congress. But instead of just admitting that, Holder has to fake up a legal case for baldly unconstitutional action and hope that the "80 years" old anti-constitution of judicial activism holds. And it probably will, since the swing vote on the Supreme Court, Anthony Kennedy, is capable of reading the Constitution with extreme creativity.

Mere existence may count as "interstate commerce" to a justice who has elsewhere found "a right to define one's own concept of existence" within the Constitution.

Holder and Sebelius resort to the Democrats' language of Big Brother when referring to the unconstitutional mandate at the center of Obamacare as the "individual responsibility provision" and talk tough about all the freeloading at emergency rooms permitted by the current system. ("The costs of this uncompensated care -- $43 billion in 2008 -- are then passed on to doctors, hospitals, small businesses and Americans who have insurance.")

The latter is an odd stance for proponents of subsidized care to take. What does it matter to them if people are currently receiving free care at emergency rooms? Aren't they in favor of free care? The costs of Obamacare will make those costs look minor, and it is not as if those who are currently receiving free care will suddenly be able to fulfill the "individual responsibility provision."

What that Orwellian phrase means is not that individuals will take responsibility for their own costs but that they will carry costs for others. The healthy have to be herded into coverage that they don't need in order to get money into the system for all. Holder and Sebelius use the analogy of mandatory car insurance to justify this provison: "Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market." But for the analogy to work, the mandatory car insurance would have to extend to nondrivers. Are nondrivers engaging in "interstate commerce" by not driving? Should they be forced into car insurance that covers everything from crashes to oil changes so that insurance premiums for drivers can go down? That's what Obamacare is like.

Holder and Sebelius make a few pro forma remarks about the legality of Obamacare but basically adopt the tone of saying that the legislation is so salutary that any constitutional challenge to it should be automatically dismissed. Don't take away the funding mechanism of Obamacare, they essentially plead, implying, as proponents of judicial activism always do, that even if the means are unconstitutional the "good" result from Congressional legislation should stand.

About the Author

George Neumayr is a contributing editor to The American Spectator.

Letter to the Editor View all comments (55) | Leave a comment

Appleby| 12.16.10 @ 7:11AM

When I lived in California, in my Ayn Rand days, I had a brief discussion with a liberal friend about being taxed to provide welfare payments for people like her. She asked me, *Would you support this program voluntarily?* and I said no, of course not. *You see,* she said triumphantly, *THATS WHY YOU HAVE TO BE FORCED TO!*

That sort of summed it up for me.

Darin| 12.16.10 @ 7:16AM

Of course, her mindset was that this made her compassionate. Compassion at the point of a gun is NOT compassion.

Best approach when discussing this with liberals is to turn it around on them. Tell them there should be a law making abortion illegal because it murders an innocent. Since liberals won't like it, they should be forced to live with it. There is no difference.

gypsy| 12.16.10 @ 9:25AM

I'm from the government and I'm here to help.

Comrade.

Ned| 12.16.10 @ 1:40PM

Some people have the vocabulary to sum up things in a way you can understand them. This quote came from the Czech Republic . Someone over there has it figured out. We have a lot of work to do.

"The danger to America is not Barack Obama but a citizenry capable of entrusting a man like him with the Presidency. It will be far easier to limit and undo the follies of an Obama presidency than to restore the necessary common sense and good judgment to a depraved electorate willing to have such a man for their president. The problem is much deeper and far more serious than Mr. Obama, who is a mere symptom of what ails America . Blaming the prince of the fools should not blind anyone to the vast confederacy of fools that made him their prince. The Republic can survive a Barack Obama, who is, after all, merely a fool. It is less likely to survive a multitude of fools such as those who made him their president."

Nick| 12.16.10 @ 3:57PM

Ned,

Excellent quote!
Thank you.

tomackio| 12.16.10 @ 10:42PM

Wow, that was great. I am going to use that one. Perfect!

Rick| 12.16.10 @ 11:42PM

Ned! You da man! Seriously, I'd like to quote your quote on other sites. Do you have a source link?

REB| 12.16.10 @ 11:42PM

Yessir that about says it all!

Rick| 12.16.10 @ 11:42PM

Ned! You da man! Seriously, I'd like to quote your quote on other sites. Do you have a source link?

monstertruckforce| 12.17.10 @ 9:35AM

That says it all right there.

Susan| 12.18.10 @ 12:50PM

Exactly! I've been thinking about Nazi Germany - Who was responsible? Just Hitler? Or was it the people, too?
After WWII ended, the German people said that Hitler lied to them, and they didn't know what was going on.
But there are all those tapes of Hitler giving public talks, saying they needed to elimate all the Jews in Europe.
I am NOT comparing Obama to Hitler; I am just saying that when a country elects its leaders, the fool leaders are not the only ones to blame for bad policy; the people are at fault, also.

KT Borland| 12.20.10 @ 12:33AM

Excellent!!!More than that a people who forget their roots are DOOMED! We have forgotten our what our founders stood for! Read the Constituition,Bill of rights....We have neglectied,forgotten GOD!!! Our country was founded on the precepts of the BIBLE,which was ALWAYS read in schools until the PROGRESSIVE era about a 100 years ago or so....

carnot| 12.16.10 @ 2:07PM

the real issue: when do those who oppose fight back? and what form does the fight take?

Dean from Ohio| 12.16.10 @ 10:17PM

I'm so compassionate. I'm going to spend your money to prove it.

Mimi| 12.16.10 @ 7:16AM

Well..Indeed..My, My...Holder and Sebelius call the ruling on health-care mandate by: Judge Henry E. Hudson..." ANTIQUATED QUIBBLE ". Who actually believes in old fashioned stuff..anymore?? Have I Got NEWS for them in case they haven't heard...From Parched Patriotic hearts thirst for FREEDOM after the election of 2008 , when AMERICA voted in for PRESIDENT THE MOST LIBERAL member of the U.S.Senate. A huge mistake in our HISTORY...citizens had no where else to turn but to the honored CONSTITUTION! The antiquated quibble gave us the TEA-PARTY and the 2010 November 2nd ..." SHELLACKING" to the led- astray Democrats. We are now experiencing a MAJOR shift in collective thought in AMERICA.... Holder/ Sebelius are the ones NOW singing ..."QUIBBLE"

Have you considered| 12.16.10 @ 8:05AM

Give Me Liberty Or Give Me Death !

SonOfSam| 12.16.10 @ 9:26AM

that's what those death panels are for: to kill you AND your liberty using the same mechanism.

ObamaCare: death and taxes in one convenient package

SCM| 12.16.10 @ 12:32PM

That would make a great bumper sticker.

Nunya| 12.16.10 @ 12:54PM

LOL! Excellent!

GavInTucson| 12.16.10 @ 11:44PM

"ObamaCare: death and taxes in one convenient package"

Now that's the best line I've heard all week :)

Ned| 12.16.10 @ 1:35PM

screw that - Give me Liberty of give THEM death...
and of course, I pick who "them" is....

nguyen| 12.16.10 @ 8:38AM

Regarding Emergency Room care, it is Medicaid recipients that are the biggest abusers (using the ER for non-emergent care). The numbers are out there- this is not just an anecdotal statement. Great example of unintended consequences:
1. Medicaid physician reimbursement less than the doctor's cost of care
2. Doctors limit or refuse to treat Medicaid patients (a reasonable, expected result).
3. ERs legally bound to treat ANYONE for ANY COMPLAINT. No co-pay required for Medicaid.
4. ERs overflowing with Medicaid patients, hospitals losing $$$
5. State/Federal government paying MUCH MORE for medicaid because ER care for a given ailment is 3-4 times more expensive.

How are hospitals and doctors staying afloat? The private health insurance system reimburses much better, so this offsets the cost of the government sponsored care. Now guess what will happen when Obamacare's further cuts in reimbursement to doctors and hospitals take effect? What will happen when the private insurance system breaks down from the enormous regulatory burden Obamacare will bring? Fewer doctors, fewer nurses, hospitals closing down (or scrambling to consolidate), LONG waits for care. If you think health care is bad in the UK and Canada, just wait until this monstrosity is fully implemented.

SonOfSam| 12.16.10 @ 9:31AM

and on top of that, ObamaCare gets more people insured by simply raising the income level you can have and still qualify for Medicaid. How they just patted themselves on the back for that, while they told all the states "Oh by the way, YOU are paying for OUR 'generosity' "

And the clueless fools out there in Oprah-land still wonder why 20 states have signed up to sue to overturn this monstrosity!

RacerJim| 12.16.10 @ 9:59AM

"When the government fears the people, there is liberty. When the people fear the government, there is tyranny." -- Thomas Jefferson

No doubt Holder, Sebelius and Obama would consider that antiquated quibble also.

Joe Oliva| 12.16.10 @ 1:47PM

Of course they consider this quibbling. They have every intent to take away your guns, it is just a matter of getting the right judges in the SCOTUS.

The revolution is about to begin. Given the murder of a Border Patrol Agent in Arizona, my guess is that it starts there by killing all the drug runners. Then on to the rest of the nation.

Bill| 12.16.10 @ 10:01AM

Driving we are told is a ‘privilege’, living is a right or is living also a privilege to liberals.

YeloStalyn| 12.16.10 @ 11:42AM

Given their stance on abortion I would say privilege...
Given their stance on criminal punishment, I would say a privilege only the worst of the worst have access to (according to liberals).
OMG they are so bass-ackwards.

logmank| 12.16.10 @ 10:40AM

Unfortunately, Judge Hudson did not declare the entire enforcement section unconstitutional - only the individual mandate. He left it up to a "higher court" to rule on the remainder of the enforcement section. IF a higher court also finds only the individual mandate section unconstitutional, the net effect will be to force health insurance companies out of business and give Obowmao, Reid and Pelosi exactly what they want - a single payer government run system.

Lois| 12.16.10 @ 1:33PM

Actually, not quite true. This bill contains no severablilty clause. That is a clause normally inserted into a bill that says basically if any part of the bill is unconstitutional the rest of the bill still stands. Since the healthcare bill doesn't have the clause, if any part of it is deemed unconstitutial it effectively strikes down this disaster of a bill.

DG| 12.20.10 @ 6:32PM

No kidding Lois? Well, that takes the cake! Doesn't surprise me though. This bill is shot through with hubris. They've confused power with authority. That's no quibble! And to think! All they had to do was raise the taxable income level for Medicare mandates and it was all done! Or do tort reform to limit liability to doctors. Aren't there limited corporations? Dumb is as dumb does... and drunk drunk drunk on their power...

bill carson| 12.16.10 @ 10:59AM

Yeah, but the American people have only themselves to blame. Prior to the election of 2008 anyone with a brain in their head knew what Obama stood for. Yet the public gave virtually dictatorial power to the Democratic Party. So now it's time to pay the piper.

Jeff| 12.16.10 @ 11:46AM

I would point out the the "fine" for not getting insurance goes to the general operating fund of the Government and is not earmarked specifically for funding ObamaCare ...

fwb| 12.16.10 @ 12:11PM

Taking from one private party to give to another private party violates the takings clause. The 5th Amendment is supposed to protect us against these az-oles but of course protections through words require honorable public servants.

On top of the 5th is that absolute, indisputable fact the federal government has almost no police power, that is the legitimate power to fine and criminalize, except in exactly in three areas. These areas are written explicitly into the grants of power. The explicit inclusion of these granted powers proves that the general power and the related powers of punishment do not exist without explicit inclusion. Try reading Article I, Section 8 and Article III, Section 3 and explain WHY the Framers saw it necessary, even with the "necessary and proper" clause, to explicitly place the power to punish for certain specific issues in the Constitution. AND explain WHY other punishment grants are not necessary if the ones in the Constitution were.

In black and white, the feds have no authority to fine the people.

Nunya| 12.16.10 @ 12:57PM

While you may be correct Constitutionally, try telling that to all those in prison for evading taxes.

DG| 12.20.10 @ 6:50PM

But Nunya, Congress does have the authority to raise taxes for the general welfare. And because it does the government may impose fines for non-compliance under the necessary and proper clause. For instance, how to have an army for a common defense? The penalty for not buying health insurance is not a tax. First the horse, then the cart. The law must first be constitutional. If not, the necessary and proper clause does not apply.

DG| 12.20.10 @ 6:34PM

You've hit the nail on the head. They do not know the difference between authority and power.

David| 12.16.10 @ 12:21PM

Im looking forward to the day when a future republican congress and senate pass the Militia Defense Act requiring every citizen to possess and own an assualt rifle for the defense of the nation.

George S| 12.16.10 @ 12:23PM

The original House bill, HR 3962, called the penalty for not buying insurance a "Tax on individuals without acceptable health care coverage". Note the word 'tax' and not 'penalty'. Yet the Senate version signed into law, HR 3590, replaces the word 'tax' with 'penalty'. The reason is most likely that the Senate is prohibited by the antiquated Constitution from raising revenue, i.e., by taxation, and the fact that HR 3590 was a shell of a bill. It would have made an interesting test case -- could the Senate gut an unrelated House bill and "amend" it through conference with the House to institute a revenue bill? After all, if the word 'tax' remained in the final version, we would have been screwed because the power to raise taxes for the general welfare trumps any commerce clause argument. But it didn't remain because it would have violated the Constitution for the Senate to author a revenue bill.

So how can the Court ignore the Senate changing the language to comply with the Constitution? Does that not show a conscious and premeditated intent to circumvent the law? That alone should be enough to shake some sense into Anthony Kennedy.

Al Adab| 12.16.10 @ 12:28PM

Constitution? Why bother? We have a government of the best and brightest right now. Surely they know what we need. After all central planning is clearly superior to free market madness any day. If we got all hung up on enumerated powers the federal government would be small and only dealing with imports, coinage and defense. What would become of all the employees in those agencies taking care of us?

John Navratil| 12.16.10 @ 1:23PM

Al Adab,

Perhaps they could pick strawberries?

Al Adab| 12.16.10 @ 1:46PM

John,
Ahhh, Si. Es muy bueno.

Garry Owen| 12.16.10 @ 12:38PM

Throw the bums out!

carnot| 12.16.10 @ 2:17PM

boycott tourism to NV, CA, MI, NY.

boycott Union made products.

boycott GM & Chrysler.

pick your charities very carefully.

actively engage in supporting opposition candidates come 2012.

Oldefarte| 12.16.10 @ 4:00PM

The sole purpose of Obamacare is to provide medical/health insurance welfare. Just as the CRA of 1977 began the process of AFFORDABLE HOMES welfare, which has now resulted in a credit/housing crisis, so too will the health insurance welfare eventually result in insurance company bankruptcies, medical care deteriation, governmental expense increases, higher taxes to fund same,etc. But hey, that's what Democrats want isn't it, to revolutionary destroy this country? If you want to view the future of this country, take a hard look at what is currently happening in Europe, especially Greece and Italy!!!!!!!!!!

Mel Torme| 12.16.10 @ 9:13PM

Wrong article for your comment, LED - I think you may have burned out a diode or two.

Dean from Ohio| 12.16.10 @ 10:21PM

If the Constitution is not binding, then neither are their laws. Only raw power remains. Perhaps the governed will decide to exert raw power to free themselves from the shackles of their arrogant masters in Washington. If that ever happens, it is not likely to go well for said masters.

hank williams| 12.16.10 @ 10:35PM

The classic liberal and traditional conservative

http://confederateunderground......ional.html

Cynical Observer| 12.16.10 @ 11:18PM

I was interested to read the following Justice Department quote in a related article in the Wall Street Journal (http://online.wsj.com/article/SB10001424052748703395204576023733405954012.html): "Ian Gershengorn, a Justice Department lawyer representing the administration, said the health insurance market is unlike any other, since all Americans at some point get medical care. Requiring them to carry insurance is just a way of regulating how they pay for it, and preventing all those with insurance coverage from subsidizing the cost of others' uncompensated care, he said."

First, NOT all Americans get medical care at some point. Christian Scientists don't, so is the federal government going to ignore their religious beliefs? Is that constitutional?

Second, haven't courts generally ruled that those of legal age and sound mind can refuse medical care? If the government can't force you to accept medical care, how can it compel you to buy insurance for that care?

Third, if the administration is worried about the uninsured being subsidized by those with coverage, why is it forcing people who are current with their mortgages, or who don't even own a home, to "subsidize" the strategic defaulters, etc.? After all, every American lives somewhere ...

Osamas Pajamas| 12.17.10 @ 12:29AM

I think that all the Congressional Democrats and collaborationist Republicans should be horsewhipped daily.

led screen| 12.17.10 @ 3:03AM

Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market."

duck| 12.17.10 @ 12:01PM

That is what is called 'pre-existing condition' ....

duck| 12.17.10 @ 12:48PM

If 'nonactivity' can be regulated by the government, this logic, by extension, can be brought into any area of law. TSA can then, for example, treat the non-flying public as possible terrorists and apply their search and destroy tactics on non-flyers or force the non-flying public to fly or face huge fines and jail time.

You don't want to buy a new car ??? Well, the government logic says they can not only force you to buy a new car, they have the right to tell you what make, model, color that car will be and where you buy it from whether you want it or not. The price of the vehicle will be set by the government and shall be sold for no more and no less. After you have paid for the car, a government panel will be informed and they will let you know when you can take possession of the vehicle. The government will keep track of the mileage of your car before and after it is in you care, and when a certain number of miles has accrued which is to be decided by another government panel, the car will be destroyed. Then the process begins all over again. The salary of the car salesman will be set by the government and no amount of work on the salesman's part will allow him to make any more money. The car dealership will limit it's profit margin to a percentage that the government will decree on an individual basis.

Judicial decree has been found that interstate commerce to include any action or inaction that an individual might take, so in the name of freedom, fairness, and equality under the living, breathing constitution, you will conduct your affairs in a matter prescribed by the government.