The US Supreme Court building in Washington, DC (Joe Ravi/CC-BY-SA 3.0)

The US Supreme Court building in Washington, DC (Joe Ravi/CC-BY-SA 3.0)

The New York Times reports:

The architects of the Affordable Care Act thought they had a blunt instrument to force people — even young and healthy ones — to buy insurance through the law’s online marketplaces: a tax penalty for those who remain uninsured.

It has not worked all that well, and that is at least partly to blame for soaring premiums next year on some of the health law’s insurance exchanges.

Naturally, the New York Times suggests solving this problem by increasing the penalty imposed on those who forego buying insurance.

Never mind that, apart from the law having been sold to the public on the basis of patent liesthis penalty is a gross violation of individual liberty and that Obamacare is patently unconstitutional.

Oh, sure, the Supreme Court ruled otherwise. But why should we believe what the Supreme Court says? Anyone capable of independent thought can look at what the law says, look at what the Constitution says, and see for themselves that the law violates the Constitution.

The Supreme Court claimed that the law conferred no new powers to the federal government. That is a patent lie.

Here’s a brief summary of its arguments and how it managed to miraculously find that the Constitution did grant Congress authority to force individuals against their will to purchase a product in the market.

The Commerce Clause? Nope…

The Court acknowledged that the Congress has no authority under the Commerce Clause to force people to buy insurance, which was done to achieve the shortsighted goal of decreasing the number of uninsured in the country. Here’s the clause, in case you’re unfamiliar:

“The Congress shall have Power … To regulate Commerce … among the several States….” — Constitution of the United States, Article I, Section 8

In acknowledging this lack of authority, the Court pointed out that by prohibiting insurers from denying coverage because of preexisting conditions, the law sharply exacerbated the “problem” of young, healthy people choosing to not buy an insurance plan, since this meant they could just forego buying a plan unless and until they get sick.

Imagine government prohibiting homeowners from buying fire coverage for their house after it had already burned to the ground! But that aside, the Court noted how this prohibition would result in insurers having to significantly increase premiums on everyone. Hence the necessity of the penalty, to force young, healthy people to buy an insurance plan to subsidize the costs of premiums for the sick.

Now, ask yourself: Does a law that is specifically designed to force the healthy to cover health care costs for the sick really make much sense? It’s called the “Affordable Care Act”, but how is this perverse system supposed to actually help reduce costs? Needless to say, it does’t. Indeed, its name notwithstanding, the law does nothing to address the reasons for rising costs of health care. On the contrary, it only exacerbates the underlying problems.

But the Supreme Court’s job wasn’t to weigh in on the foolishness of the law, only whether it was constitutional. (“It is not our job to protect the people from the consequences of their political choices”, the Court noted.)

While maintaining that the law conferred no new powers on Congress, the Court noted that “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.”

You can scrutinize the Constitution endlessly, but you won’t find anywhere where it grants to the Congress such a frighteningly authoritarian power.

The Court rightly reasoned that “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

It produced a reductio ad absurdum argument to illustrate the fallacy of the case the government was arguing that it had such power under the Commerce Clause: since people eating an unhealthy diet contributes greatly to the costs of health care, “Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.”

The Court also rightly noted that “Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned….”

Note also how Obamacare has created a perverse incentive that only exacerbates this problem of people making poor lifestyle choices: it rewards people who do so while penalizing those who eat a healthful diet and exercise.

The Necessary and Proper Clause? Nope…

Next, the Court examined whether Congress had such authority under the Necessary and Proper Clause:

“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers….” — Constitution of the United States, Article I, Section 8

Here, too, the Court’s reasoning was solid. It noted that this clause does not grant to Congress any authority additional to the enumerated powers that precede it. Since the Commerce Clause granted no such authority, the government could not rely on the claim that the Necessary and Proper Clause did so.

The Power to Lay Taxes? Aha!

Unable to find justification for Obamcare’s penalty in either of those two clauses, the Supreme Court next turned to the clauses concerning Congress’s power to lay taxes:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises …; but all Duties, Imposts and Excises shall be uniform throughout the United States” — Constitution of the United States, Article I, Section 8

“[D]irect Taxes shall be apportioned among the several States” — Constitution of the United States, Article I, Section 2

While it’s arguments to this point were indeed well reasoned, we now enter the rabbit hole…

Here, the government’s argument was that the mandate does’t order individuals to buy insurance; it just imposes a tax on those who don’t.

The Court granted that “The most straightforward reading of the mandate is that it commands individuals to purchase insurance.” Indeed, it is not logically possible to interpret it otherwise. See for yourself:

“An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” — Affordable Care Act, Section 5000A(a)

“If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).” — Affordable Care Act, Section 5000A(b)

Plainly, this constitutes a command to individuals to purchase insurance under threat of penalty for disobedience.

It’s not a suggestion.

But the Court took seriously the government’s logic which said: if the mandate is a “tax”, then it is “not a penalty” — an obvious non sequitur, since it can be (and is) both a tax and a penalty.

Sound reasoning would look like this: Since Congress does not have the authority to command individuals to purchase insurance, therefore it has no authority to penalize individuals for not doing so, whether through taxation or any other means.

The Court acknowledged that “It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax.'” But then it proceeded to argue that the penalty was “not a penalty”.

That patently fallacious reasoning aside, the Court was citing the power to tax consumption under the Constitution (e.g., a tax on gasoline) and declaring that this also meant the Congress has the power to tax non-consumption.

That, of course, is just as patently ludicrous a suggestion. The implication that the Founding Fathers intended the Constitution to grant the power to Congress to levy a tax on individuals for not purchasing a good or service in the marketplace is utterly asinine. Indeed, this is so patently tyrannical a usurpation of power that they can’t have even imagined the government would claim to have such authority (which explains why they never discussed it, much less enumerated this power in the Constitution).

Thus we can see that the Court’s assertion that the law conferred no new powers to the Congress is a patent lie.

A Direct or Indirect Tax?

Examining further the question of whether the Congress has authority under the Constitution to tax inactivity, the Court next turned its attention to the question of whether the penalty is a direct or indirect tax.

The Court argued it is not a direct tax, i.e., a capitation tax or a property tax, in which case it would be unconstitutional since it’s unapportioned. So is it an indirect tax?

Pursing this inquiry, the Court said, “If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.”

Indeed! But don’t worry, the Court said, this is not a matter of concern! (Yes, they really said that.)

Why not? Well, the Court argued, “the Constitution does not guarantee that individuals may avoid taxation through inactivity”! The Court thus shifted the burden of proof. The government, it argued, by employing this logic, need not show that this power was among those specifically enumerated in the Constitution! Which argument is, of course, entirely contrary to the Constitution and the purposes of the Founding Fathers, who wrote it intending to prevent the government from usurping authority by exactly this argument.

Indeed, the Court itself alluded to the ludicrousness of its argument by self-contradictorily (and rightly) noting that “The Constitution’s express conferral of some powers makes clear that it does not grant others. And the Federal Government ‘can exercise only the powers granted to it.'”

It also cited the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

And then it completely disregarded what the Constitution actually says to maintain that we needn’t fear a government usurpation of power since the Constitution doesn’t offer any explicit protection from being taxed by the government literally for doing nothing.

It is not enough for the Court to declare that the Constitution does not expressly forbid a power; it must show that the Constitution expressly grants a power in order to be able to determine that it is constitutional. If it cannot do so, it must perform its duty to overturn the law in which the Congress claimed the power not expressly enumerated.

The Court, needless to say, failed in its duty.

The Court next argued that since Congress already can use tax policy to incentivize people to buy things, like tax breaks on buying a new home or on education, therefore the Obamacare penalty tax is not a new power. Never mind the obvious and fundamental distinction between not taxing individuals for making a purchase and taxing individuals for not making a purchase.

Furthermore, it really goes without saying that since the Obamacare penalty is a tax imposed directly upon individuals who are under legal compulsion to pay it, it is by definitiondirect tax — and hence, by the Court’s own admission, unconstitution.

Obamacare Is a Tyrannical Usurpation of Power

If the Congress may tax individuals simply for not doing whatever legislators wish them to do, there is no limit to its power to coerce.

According to the Court’s determination, for example, the Congress may tax a parent for homeschooling their child.

It may tax someone who does not buy a more fuel-efficient automobile to replace the one they already own.

To borrow the Court’s own examples, it may tax people for not buying enough vegetables according to a prescribed quota.

It may tax homeowners for not installing energy-efficient windows.

There is simply no limit to the Congress’s power to coerce individuals by laying a penalty tax on them for not doing whatever it may be that government bureaucrats would have them do.

Moreover, it is no secret that the pharmaceutical industry, through its lobbies, were heavily involved in shaping the Affordable Care Act to make sure it was in their interests, regardless of whether or not their demands were in the interests of the general public. Imagine the dangers of corporate lobbies and moneyed interests buying influence in government to get legislation passed using this new taxing power to coerce Americans to purchase their goods or services.

The oppressive nature of this power and the threat it represents to liberty is limited only by the ability of corporate interests and corrupt government bureaucrats to imagine.

If you really want to dive down the rabbit hole, I’ve written a lengthy and fully sourced paper exposing the Supreme Court’s outright fraudulent case for upholding the constitutionality of the Obamacare mandate. This is a document I would take to court to fight the imposition of the tax penalty if I preferred not to buy insurance.

Read the full paper!

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