A Further Perspective

A Tax with Teeth and Clause

The Obamacare penalty and the Constitution.

By 12.16.10

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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.

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About the Author
George Neumayr, a contributing editor to The American Spectator, is co-author, with Phyllis Schlafly, of the new book, No Higher Power: Obama's War on Religious Freedom.