Obamacare Redux

There has been much controversy and upheaval since SCOTUS announced it’s 5-4 decision on the individual mandate regarding Obamacare. Many have gone so far as to call Chief Justice Roberts a “traitor” or a “turncoat” etc. as he was the deciding opinion in the decision. Even those who supported Obamacare aren’t so sure they like what Chief Justice Roberts had to say.

Chief Justice Roberts agreed that the individual mandate was not something Congress could regulate under the Commerce Clause or the Necessary and Proper Clause of the Constitution.

He writes:
“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. 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. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27. (b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable CareAct’s other reforms.”1

This is strike one for those on the side of Obamacare who have argued, for years, that the individual mandate was something that the Commerce Clause could regulate. So far, if you were to stop there, those who argue against Obamacare would agree with the Chief Justice.

But now things get a little dicey, as he continues: “…concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable. The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1.

This is strike one for those who argue against Obamacare and for those in favor of it, a foul ball.

Why a foul ball?

Article 1, Section 7 of the U.S. Constitution plainly says: “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

The major problem with Obamacare is that it originated in the Senate under the name of the “Baucus Bill”. Remember that?
This was the sole argument to get the bill passed with the understanding that the individual mandate was not a tax but a penalty. The lawmakers knew this very well at the time the Baucus Bill forced it’s way through the Pelosi lead House of Representatives.
How the Supremes didn’t pick up on this little piece of trivia is shocking, in the least.

Did Chief Justice Roberts decide this way for a reason? Nobody but Roberts can know. One thing for sure, any lawmaker that can’t pick up on this simple, in your face, problem with Obamacare isn’t worth the votes that put them in office. To allow the argument to lay at this stage is very bad precedence on the High Court’s part. If Chief Justice Roberts wanted to redeem the reputation of the Court then he did the country a disservice by advancing the interests of the Court ahead of the Constitution.

As Judge Napolitano put it, “Who would have thought that this whole big 2,700-page statute was really a tax. Not a regulation of commerce, not a regulation of medicine, not a regulation of health care, but a tax on people.” Yes, Judge. Who’d a thunk it?


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