03 July 2012

More Twisting Needed

The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law's most fervent supporters did not make or anticipate the court's argument in its support. Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing. In all the history of the court, it never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.
So, the USSC effectively argued that ObamaCare was constitutional because it was a tax.  However, the bill did not originate in the house, which makes the bill unconstitutional on procedural grounds.  Thus, if the USSC truly believes that ObamaCare is a tax, they will have to declare it unconstitutional because it wasn’t enacted correctly.

Basically, ObamaCare is unconstitutional pretty much any way you want to slice it.  That it hasn’t been overturned in any meaningful way should simply indicate that rule of law is still pretty much dead, and that America is now governed by the whims of nine oligarchs in robes.


  1. Actually, it did - technically - originate in the House. I don't recall which HR is was, but basically the Senate rewrote it entirely, then renamed it.

    Yeah, maybe it's a difference without distinction, but that's how they're covering their butts on this one.

  2. @Anon.- I'm not sure it's supposed to work that way, but whatever. Obviously there isn't any point in appealing to the constitution anymore.

  3. The Supreme Court has gotten decisions wrong before. Remember Dred Scott, anyone?

    Oh, and even if Judge Napolitano is right (and I believe he is), to whom would we APPEAL the constitutionality of this 'tax' bill, the same court that made this bizarre, incorrect, not to mention unconstitutional, ruling?! Come on! As SG said, we can't appeal to the Constitution anymore.

    James Madison, father of the Constitution, said this: the Constitution is for a MORAL & RELIGIOUS PEOPLE (emphasis mine); it is totally unsuitable to the governance of any other. How true it is. When we had Bill Clinton debating the meaning of is 20 years ago, that told you all you needed to know about what kind of people we are...

  4. I believe the game hinges on what they said it is. They said that as a tax it is constitutional. Now, opponents can go back and say that as a tax it is unconstitutional because it wasn't enacted under proper taxing procedure and/or whatever other reason. That's how I'm reading it.

  5. My objection is that I don't buy that the penaltax is one of the permissible taxes under the amended Constitution. (I know noöne in power cares; I'm writing for the purposes of academic discussion.)

    "Imposts, duties, and excises" are the Constitution's indirect taxes. Indirect taxes are event taxes, not non-event taxes (I'm echoing Napolitano here.) You must be able to avoid an indirect tax by sitting on your hands, or it is something other than an indirect tax. Strike one.

    "Capitation or other direct tax" (pre-16th) are the original Constitution's direct taxes. The penaltax isn't one of these because there's no way that the number of uninsured people is going to be proportionally equal in every state. Strike two.

    "Taxes on incomes, from whatever sources derived" pretty strongly implies that income must be used to calculate the tax. If it is calculated on the basis of something else (like how much the establishment wants you to buy their lousy health insurance) it pretty much violates the 14th. This goes doubly since it is perfectly possible to have no income, not be on Medicaid, and yet still--somehow--not be able to afford health care. Strike three.

    The constitutional and weaselly way to have done this would have been to give everyone a big tax hike and then give Medicaid and Medicare recipients and private health care purchasers (i.e. the underclass, the aged, and the affluent) big tax breaks. Congress chose to do this in an unconstitutional and extremely weaselly way, just out of laziness I guess.

    But of course, the 10th Amendment forbids Medicaid and Medicare anyway. Incidentally, the man whose "creative" interpretation of the Constitution legalized most of the New Deal, Justice Owen Roberts, was appointed because the previous nominee had been defeated after allegation that he had said things that hurt the NAACP's feelings.

  6. I read that because of this classification, states had the option not to comply and give up federal money for it. Since the current costs are double what the Feds were offering to transfer in, several states have already declined. ( something on the order of not taking 130 million to spend 230 million if I recall the numbers)

    ((that is, end up 100million in the hole to fund this federal program))

    That placed the onus back on the Feds, who, because this is now a tax, are required to fund it fully if the states don't cooperate. Congress may have to scrap it just because they have no actual money to pay for it.

    (I can't remember the link, talkleft or conservative treehouse I believe)

    Always fun to watch reality slap around politicians. They never see it coming

  7. The Constitution has been a dead letter at least since the time of John Marshall's usurpation of the review power. This was actually a coup d'etat, as that power is nowhere in the Constitution nor in our Common Law heritage. In fact, until very recently no Common Law country allowed judicial review of parliamentary acts.

    That said, in good Common Law tradition, Marshall's usurpation has been acceded to since the git-go, so it is now an unofficial amendment to the Constitution. In which case, your claim that Obamacare is unconstitutional is patent nonsense.

    If you want out of this morass, then you have to get rid of the Constitution itself, with all its official and unofficial amendments. To whine about unconstitutional laws and acts is wrong-headed in the extreme, especially when the Constitution is whatever nine Justices say it is.

  8. @MarkyMark- Absolutely correct. any discussion of constitutionality at this point is merely academic.

    @Greddy- Like it matters anyway. If Roberts is playing political games, then there is no point in consulting the constitution to predict or call for an outcome.

    @Olave- laziness probably explains it. Why be careful when the USSC is just going to rubber-stamp it anyway?

    @Anon.- it is fun to watch reality give politicians a good old-fashioned bitch slap. Those beautiful campaign promises always make for ugly reality.

    @sykes.1- My claim is not nonsense. The authority for ObamaCare is literally not found anywhere in the constitution of the united states of America, which is what I meant when I made my claim. That it is practically law does not rebut my claim at all. Perhaps we should just be like Britain and claim that our constitution is of the unwritten variety. Also, I'm not opposed to getting rid of our current constitution. Or the federal government. Or politicians.