Free Markets, Free People

General Welfare Clause

Health insurance mandate – Obama administration now arguing it is a tax

Having made it up as they go, the Obama administration is now arguing that the mandate to buy insurance coverage under Obamacare is a perfectly legal tax.

That, of course, after the President denied it was a tax in order to sell it:

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

You can tell he was a constitutional expert when he taught, can’t you?

So much so that the Department of Justice, in a brief defending the law, claims it to be a "valid exercise of the Congressional power to impose taxes:

Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.

Except Congress doesn’t argue that at all.  Instead it relies on the Commerce Clause as its justification for the mandate:

Congress anticipated a constitutional challenge to the individual mandate. Accordingly, the law includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority.

And then, per the White House, if any additional authority is needed – other than the power to define and then levy taxes (Congress) or the commerce clause, why just consult the General Welfare Clause.  They have more Constitutional ways to make you buy something you may not want than you can imagine:

“The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law,” Mr. Pfeiffer said. “To the extent that there is any question of additional authority — and we don’t believe there is — it would be available through the General Welfare Clause.”

One has to assume they just plan on overwhelming the Court with as many “viable alternatives” as it takes to get their way.

One Yale professor says the tax argument – the one Mr. Obama denied – is the strongest argument:

Jack M. Balkin, a professor at Yale Law School who supports the new law, said, “The tax argument is the strongest argument for upholding” the individual-coverage requirement.

Mr. Obama “has not been honest with the American people about the nature of this bill,” Mr. Balkin said last month at a meeting of the American Constitution Society, a progressive legal organization. “This bill is a tax. Because it’s a tax, it’s completely constitutional.”

Nice.

Smoke, mirrors, deceit and debt.  That’s what you get for trusting a snake-oil salesman with your health care.  Oh and this:

“This is the first time that Congress has ever ordered Americans to use their own money to purchase a particular good or service,” said Senator Orrin G. Hatch, Republican of Utah.

If this survives the court challenge, it won’t be the last – trust me on that.

The irony, of course, is the Constitution was written to limit government and keep it off our back.  Instead it is now being used to expand government and intrude more and more deeply in our lives.

~McQ

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