Bluefield Daily Telegraph, Bluefield, WV

Columns

July 3, 2012

Tortured reasoning transforms an unconstitutional mandate into law

Last week U.S. Supreme Court Chief Justice John Roberts joined Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy in correctly identifying the individual mandate in the Patient Protection and Affordable Care Act as unconstitutional. That is what the Supreme Court is expected to do: follow the original intent of the authors, who created a document to protect America from over-reaching government actions like this one.

Writing for the court’s majority, Chief Justice Roberts said: “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.” He continued, correctly identifying the chaos that would result from finding the mandate constitutional: “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.” Exactly. But the majority didn’t stop there.

Instead they decided the individual mandate is not really a mandate, it is a tax, essentially rewriting the statute and thereby making Obamacare the law of the land. But if, as Justice Roberts wrote, you cannot regulate individuals “because they are doing nothing,” how then can you tax individuals because they are doing nothing? This turns the definition of “taxation” on its head, taxes typically being levied on working, buying and owning, as opposed to levying taxes on not working, not buying or not owning.

What exactly caused the Chief Justice, criticized by liberals for his judicial conservatism, to depart from his expected position? Many of those familiar with his thinking say the decision is in keeping with his values — conservative in his judicial views, but also considering the court’s reputation. If the court is seen as too conservative — adhering to the Constitution’s original intent too often — it may become unpopular with liberals.

Others believe he worked a brilliant bit of judicial magic by striking down the mandate, but upholding the statute’s constitutionality as a tax, preserving President Barack Obama’s signature accomplishment and allowing him to save face, but at the same time giving the law’s opponents a way to correct its many flaws.

Whatever the motivation, the ruling unfortunately opens the door for darn near any activity — or lack of activity — to be taxed by the federal government. As the legendary Chief Justice John Marshall famously said, “The power to tax is the power to destroy.”

Andrew P. Napolitano, former judge of the Superior Court of New Jersey, writing in The Washington Times, sees it this way: “If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.”

This statute epitomizes dishonorable legislative methodology and bad law-making. Obamacare has been very unpopular with the public since it was first hatched, and it still is. Yet the Democrat majority in the House of Representatives lurched ahead, conceiving the bill behind locked doors, and the 2,700-page monstrosity was passed by the House before members even had time to read it. Remember then-House Speaker Nancy Pelosi arrogantly telling American citizens that they couldn’t know what was in the bill until Congress passed it? Senate Democrats bought enough votes with pricey concessions to key states to eventually pass the bill.

The measure was advertised vociferously by President Obama and his fellow statists as a mandate, not a tax, and it would not cause any American “making less than $250,000 a year to pay one dime more in tax.” The act has now been upheld by the highest court in the land because it is a tax, not a mandate, and among the 21 new taxes are seven affecting those making less than $250,000 a year, some already in effect, according to Forbes.com.

They are: 1. The Individual Mandate Excise Tax, the higher of $1,360 or 2.5 percent of adjusted gross income; 2. The Over-The-Counter Drugs Trap denying use of pre-tax funds in special accounts to buy over-the-counter medicines for allergy relief and the like without a doctor’s prescription; 3. The Healthcare Flexible Spending Account Cap of $2,500

4. The Medical Itemized Deduction Hurdle, increased from 7 to 10 percent of adjusted gross income; 5. The Health Savings Account Withdrawal Penalty of 20 percent, up from 10 percent; 6. The Indoor Tanning Services Tax of 10 percent; 7. The Cadillac Health Insurance Plan Tax of 40 percent.

The Democrats are celebrating their prize legislation’s Alice-in-Wonderland survival of judicial review, but now have to figure out how to explain to the American people that the bill they swore was not a tax on the poor and middle class really is a tax on the poor and middle class, in fact, the biggest tax hike in history.

You cannot sensibly praise the Supreme Court for upholding your flawed law, and then claim that the basis upon which it was upheld was incorrect. That twisted logic is beyond even the Obama administration.

James H. “Smokey” Shott, a resident of Bluefield, Va., is a Daily Telegraph columnist.

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