Hi All,
As I'm sure anyone who reads this will know, the Supreme Court of the United States ruled that the individual mandate portion of the Affordable Care Act (aka ObamaCare) is Constitutional. To my surprise, the Supreme Court did not decide upon its Constitutionality with respect to the Commerce Clause. In my opinion, this brings both good and bad news to the table.
The good news is that the Court effectively said that, no, Congress cannot exercise unlimited power under the Commerce Clause loophole. Unfortunately, the Court has effectively granted Congress significantly more power under the tax code! The Court uncovered a way to uphold the legislation by saying that the penalty to be issued to those who do not buy insurance is a tax. The Supreme Court argues that the law is Constitutional as a tax because the tax code allows taxes that discourage certain behaviors. For instance, there are high taxes on cigarettes and alcohol which aid in discouraging people from purchasing these products. I highly disagree with this argument because those taxes do not really discourage people from buying those products. These "sin" taxes take advantage of goods with inelastic demand and use them to raise revenue for the federal government. If these taxes were to truly discourage people from purchasing these products, then the government would simply raise the tax to the point at which no one was willing to purchase them.
The scary part about this situation is that the Court has said that the government cannot force you to buy health insurance, but they can tax you if you don't. This is a distinction without a difference. If the government has the power to tax you to coerce your behavior, then they can simply raise the tax to a point that would force you to buy insurance (in this case). Essentially Congress is being allowed to do through the tax code what it is unable to settle with Constitutional legislation. If you apply this logic to a different scenario, the implications could be quite serious. For example, say that after failing to pass legislation that would ban all citizens from purchasing guns due to unconstitutionality, the federal government simply devises a new tax that is so high that it makes it impossible for anyone to purchase a gun. This could allow the federal government to deny you fundamental Constitutional rights.
The comical part about this case was that the Supreme Court acknowledged the possibility that the Congress could coerce behavior through taxes but still provided that it is Constitutional because the penalty for not purchasing insurance is too low and insignificant. Since it would be far cheaper to simply pay the penalty (tax), they are in effect saying that this legislation is Constitutional because it will be ineffective. The Supreme Court also justified the legislation because there is no way to enforce the penalty (tax) on the people. The Affordable Care Act clearly states that the IRS does not have jurisdiction over this tax, so there is no way to collect it from those not willing to pay it.
Due to this fact and the other provisions in the ACA legislation, it is very likely that many people will not buy insurance until they get sick since they will not be denied for pre-existing conditions. By having a only people that are sick paying insurance premiums, it will be an excellent way to fast track a total collapse of the healthcare system.
A major problem with this decision is that even as a tax, the bill should still be unconstitutional. The federal government does not have unlimited tax power. There are two types of taxes, indirect taxes and direct taxes. An indirect tax might come from something like alcohol or cigarettes where the tax is built into the price of a product. A direct tax is a tax where you essentially send money directly to the government. Here's the catch though, a direct tax must also be apportioned! The only direct tax that is not apportioned is the income tax and that was only deemed Constitutional after the passing of the 16th Amendment - which only applies to income. If the government is imposing a tax that applies to all Americans who do not wish to buy healthcare and you pay the penalty directly to them, then it's a direct tax! In order for it to be Constitutional, it must either be an apportioned tax or Congress must pass a Constitutional Amendment to allow for an unapportioned direct tax on those who are not willing to purchase healthcare.
I think it is quite clear that the Supreme Court was grasping at straws in order to get this legislation passed, which is an absolute disgrace to this country. This is unadulterated bench legislation because in order to argue Constitutionality, the Supreme Court must have applied their own definition to the term direct tax. This is also very unfortunate because this decision will further open the door for Congress to increase its power under the tax code.
Saturday, July 28, 2012
Saturday, March 31, 2012
The Individual Mandate Debacle
Hi All,
Lately, the news has been flooded with debate about the Supreme Court oral argument on the individual mandate - part of the healthcare law. As I'm sure most people already know, the Supreme Court's job is to determine whether a law is Constitutional or not and really not much else. Debate about how useful a law might be is not particularly relevant if it is unconstitutional.
There is much argument about the partisan politics being seen on the Supreme Court in reference to the conservative justices siding against the law and the liberals supporting the law. Some people are concerned about their personal liberties being violated, and they oppose the health care law because they don't believe they should be forced to purchase a private good. While this argument is understandable, it really isn't the argument that the court is hearing. What the court must decide is if the federal government actually has the power to create such a mandate. The Constitution, under Article I, Section VIII explicitly lists the powers of the federal government. The Solicitor General (in effect, the Obama administration) is arguing that the federal government does have the power under Clause III of this section. Clause III states, "[The Congress shall have Power To] regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." So, in essence, the Obama administration is arguing that since the purchase of health care will have some - even a minute - effect on commerce gives them the power to pass this law.
To understand this more fully, Congress would have the power to propose any law that has any effect on interstate commerce (the buying and selling of goods between states) under this logic. If that isn't of great concern to you - it should be. This, in all practicality, would give Congress unlimited power. If you think I'm exaggerating this, you're wrong. Check out what Supreme Court Justice Elena Kagan has to say about the commerce clause here http://www.youtube.com/watch?v=DSoWGlyugTo . If the Supreme Court upholds this law, they will create a precedent that says, in effect, that Congress has unlimited power.
If you are in favor of the Supreme Court upholding this law, then you are also in favor of unlimited power to the Congress. This law is clearly unconstitutional as it removes all limiting principles of the Constitution. It should also be understood that this has not always been the interpretation of the commerce clause, only in recent history have we had such a great expansion of the federal power under this clause.
Oh, and before anyone argues that we are mandated to have car insurance, so it would make sense that we could be mandated to have health insurance...realize that mandated car insurance is a power of the states under the Tenth Amendment. It should also be understood that driving is not a right, it is a privilege. You can impose conditions under which a person can utilize a privilege, but living is a right of the people, so Congress should not be able to impose a condition on living. It simply doesn't make sense that the founders of this nation would write an entire document that specifically limits the power of the government only to include a simple clause that makes federal power unlimited. If the Supreme Court upholds this legislation, we will have undergone a fundamental shift in how we are ruled.
TL;DR: If the Supreme Court upholds the individual mandate, they will have allowed the Congress to use the commerce clause in order to create the largest expansion of federal power in history.
- Bob
Lately, the news has been flooded with debate about the Supreme Court oral argument on the individual mandate - part of the healthcare law. As I'm sure most people already know, the Supreme Court's job is to determine whether a law is Constitutional or not and really not much else. Debate about how useful a law might be is not particularly relevant if it is unconstitutional.
There is much argument about the partisan politics being seen on the Supreme Court in reference to the conservative justices siding against the law and the liberals supporting the law. Some people are concerned about their personal liberties being violated, and they oppose the health care law because they don't believe they should be forced to purchase a private good. While this argument is understandable, it really isn't the argument that the court is hearing. What the court must decide is if the federal government actually has the power to create such a mandate. The Constitution, under Article I, Section VIII explicitly lists the powers of the federal government. The Solicitor General (in effect, the Obama administration) is arguing that the federal government does have the power under Clause III of this section. Clause III states, "[The Congress shall have Power To] regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." So, in essence, the Obama administration is arguing that since the purchase of health care will have some - even a minute - effect on commerce gives them the power to pass this law.
To understand this more fully, Congress would have the power to propose any law that has any effect on interstate commerce (the buying and selling of goods between states) under this logic. If that isn't of great concern to you - it should be. This, in all practicality, would give Congress unlimited power. If you think I'm exaggerating this, you're wrong. Check out what Supreme Court Justice Elena Kagan has to say about the commerce clause here http://www.youtube.com/watch?v=DSoWGlyugTo . If the Supreme Court upholds this law, they will create a precedent that says, in effect, that Congress has unlimited power.
If you are in favor of the Supreme Court upholding this law, then you are also in favor of unlimited power to the Congress. This law is clearly unconstitutional as it removes all limiting principles of the Constitution. It should also be understood that this has not always been the interpretation of the commerce clause, only in recent history have we had such a great expansion of the federal power under this clause.
Oh, and before anyone argues that we are mandated to have car insurance, so it would make sense that we could be mandated to have health insurance...realize that mandated car insurance is a power of the states under the Tenth Amendment. It should also be understood that driving is not a right, it is a privilege. You can impose conditions under which a person can utilize a privilege, but living is a right of the people, so Congress should not be able to impose a condition on living. It simply doesn't make sense that the founders of this nation would write an entire document that specifically limits the power of the government only to include a simple clause that makes federal power unlimited. If the Supreme Court upholds this legislation, we will have undergone a fundamental shift in how we are ruled.
TL;DR: If the Supreme Court upholds the individual mandate, they will have allowed the Congress to use the commerce clause in order to create the largest expansion of federal power in history.
- Bob
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