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The Obamacare "Tax" That Chief Justice Roberts Invented Is Still Unconstitutional

May 12, 2014 in Economics

By Ilya Shapiro

Ilya Shapiro

As we all know, two years ago, Chief Justice John Roberts changed the Affordable Care Act’s individual mandate into a tax and thus rescued President Obama’s signature legislation. What you may not know is that with this slight of hand—or flick of the wrist—he actually sent Obamacare flying from the constitutional frying pan into the constitutional fire.

That is, if you accept the Great Alchemist’s transmogrification of a penalty-enforced regulation into a mere tax on the condition of not owning health insurance—in other words, a “unicorn tax,” a creature of no known provenance that will never be seen again—if you accept that, you torque up the ACA’s constitutional tension vis-à-vis the Origination Clause.

To quote John Belushi, ‘Nothing’s over till we decide it is.’”

Article I, Section 7, Clause 1 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.” This clause was put in to ensure that that most awesome federal power was lodged in the political body most sensitive to public opinion.

“The power to tax is the power to destroy,” John Marshall wrote in the foundational 1819 case of McCulloch v. Maryland, so the Framers wanted to ensure that any such destruction came from the people themselves.

Fast forward to December 2009, immediately before the ur-Tea Party state of Massachusetts expressed the nation’s displeasure with Obamacare by electing a Republican to the Senate. That’s when the Senate took a bill giving benefits to members of the military who were first-time homebuyers and, as George Will put it recently, “‘amended’ this bill by obliterating it.” Harry Reid renamed it and replaced its entire contents with the ACA.

While the Origination Clause doesn’t apply to situations where the Senate creates a government program and then institutes taxes to pay specifically for that program, the Obamacare tax isn’t earmarked to pay for anything in particular. Similarly, taxes that are “analogous to fines” are exempt from the clause’s requirements, in that they enforce compliance with a law passed under one of Congress’s other enumerated powers—not the taxing power—but John Roberts foreclosed that interpretive option here.

Of course, the Senate can amend House-passed revenue bills, but only if the amendment is “germane” to that bill’s subject matter. That loophole has turned out to be wide enough for the Kentucky Derby to be run through, but still …read more

Source: OP-EDS

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