When you begin reading about the pending Supreme Court review of Obamacare, you will quickly become immersed in the minutia of jurisprudence. You will also try to apply “common sense” to the issues that you read about. Wrong! Court decisions are not based on common sense. For now, there are just a couple of points that you should keep an eye on.
- Are the fines and penalties really just taxes? If they are found to be taxes, then the court could easily throw out the lawsuits and punt the Obamacare ball back to the next Congress. This is due to a 1867 law, the Tax Anti-Injunction Act, that does not allow a law suit to be filed before actual taxes are paid and collected. Obama, Reid and Pelosi have maintained till the cows come home that the penalties and fines are not taxes but penalties and fines. That is until they got to court… Now they are arguing that these are actually taxes that are subject to the Anti-Injunction Act.
- You have heard more than you care to about the Commerce Clause. The Commerce Clause is a part of the US Constitution, specifically Article I, Section 8, Clause 3. Since there were several States in the union, the founders gave the federal government the right “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The left’s view of this clause is to give the federal government power to control anything if it is bought, sold or transported across State lines. This would include the purchase and use of Healthcare Insurance. The right’s view of this clause is much more restrictive and does not give broad reaching authority to the federal government to MANDATE that a citizen has to purchase a good or service. In the past, the court has upheld that the feds have the right to regulate “withheld” commerce, as by not selling something, the amount of the item not sold impacts the overall interstate commerce. As I said, don’t try to interject common sense. Now, we are at a Commerce Clause Crossroad whereby the feds may be given the power to force you to buy anything they see fit including cars, TVs, etc.
As I said above, don’t try to apply common sense to some of this nor make the mistake that Justices will rule based on the literal translation of the US Constitution and applicable case-law. This decision will probably come down to pure partisan philosophy by members of the court. The likely vote outcome will be 5-4. The trick is to pick which side Justice Kennedy will side with. Today, 150,000,000 people in the US oppose Obamacare (over 50% of our citizens), and only 34% of our citizens support Obamacare. When this bill passed in 2010, it was by the narrow margin of 60-39 in the Senate and 219-212 in the House. So, counting Obama, some 280 people out of over 300,000,000 people in the US passed this bill over a 60% disapproval opinion poll at the time of passage. Now, if Justice Kennedy votes to uphold the constitutionality of Obamacare, that will mean 281 people forced Obamacare on the rest of us. Actually, what is really scary is that Justice Kennedy, is the only person in the US who will determine if this law is constitutional. No wonder Madison and Jefferson did not give the Court the absolute power to determine constitutionality when they wrote the Constitution. More on that later.
Personally, I really believe that the Court will punt the issue back to Congress and will leave the issue of the Commerce Clause up in the air. They may use the Tax Anti-Injunction Act to hide behind by saying that the penalties and fines are really taxes. FDR actually changed Social Security “Premiums” from Fees to Taxes to make sure he passed Constitutional muster and avoid the pitfalls of the Tax Anti-Injunction Act and the Commerce Clause. Obama did not want Obamacare to look like a tax increase so chose the less gutsy approach of calling a tax a tax. Now he has to defend that position vis-a-vis the Constitution. No matter what happens, if Obamacare stands, just 281 people out of 300,000,000 will have made the decision to shove national healthcare down your throat… So much for representative democracy in action…
If you get a chance, listen to the Mark Levin Show daily from 6:00PM-9:00PM Eastern and visit Mark’s website at http://www.marklevinshow.com/home.asp for updates on what Landmark Legal Foundation is doing in support of the fight against Obamacare.
Hat Tip: Landmark Legal Foundation and the Mark Levin Show