First, Barack Obama told us the legislation he happily refers to as “Obamacare” was not a tax.
Then, to make a Supreme Court defense of the legislation, his surrogates insisted it was a tax.
But there’s more to this controversy than hypocrisy and having it both ways.
While Supreme Court Chief Justice John Roberts shocked many by siding with the administration’s argument in the case against Obamacare, there is a major constitutional problem with defining the health-care mandate as a tax.
And that’s why the Pacific Legal Foundation is challenging the Supreme Court decision in a case that could prove to determine whether the Constitution’s plain language about the conduct of federal government business means what it says.
What’s the problem with the “Obamacare tax”?
The legislation that created it began in the U.S. Senate, under the authorship of Senate majority leader Harry Reid.
The Constitution clearly requires any tax bills to begin in the House.
Is this a technicality?
No, it’s the simple, unambiguous law of the land as articulated by the Constitution in Article I, Section 7: “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.”
“If the charge for not buying insurance is seen as a federal tax, then a new question must be asked,” said Paul J. Beard II, the principal attorney for the organization.
When lawmakers passed the Affordable Care Act, with all of its taxes, “Did they follow the Constitution’s procedures for revenue increases?” Beard asked.
The Supreme Court wasn’t asked and didn’t address this question, he noted.
“The question of whether the Constitution was obeyed needs to be litigated, and PLF is determined to see this important issue all the way through the courts,” he said.
PLF explained that under the Supreme Court’s decision in June, the Affordable Care Act now charges a “tax” on Americans who fail to buy health insurance.
The plaintiff in the case is Iowa small-business owner Matt Sissel, who chooses to pay for medical expenses on his own. He objects “on financial, philosophical, and constitutional grounds to be ordered by the federal government to purchase a health-care plan he does not need or want, on pain of financial penalty.”
“I’m in this case to defend freedom and the Constitution,” said Sissel. “I strongly believe that I should be free – and all Americans should be free – to decide how to provide for our medical needs, and not be forced to purchase a federally dictated health-care plan. I’m very concerned about Congress ignoring the constitutional roadmap for enacting taxes, because those procedures are there for a purpose – to protect our freedom.”
He served in the Army National Guard until 2008 and spent two years in Iraq as a combat medic. He received the Bronze Star and now owns an art business in Iowa City.
“It’s dispiriting to see our lawmakers treat the rules set out in the Constitution with disrespect, as if they’re just suggestions, or as if members of Congress are too important to follow them,” he said.
The Sissel complaint is being amended to challenge the entire law on that basis.
The amended complaint explains that Roberts specifically approved the “shared responsibility payment,” which the Obama administration said was not a tax, as “a tax.”
“The chief justice explained the apparent inconsistency in concluding that the ‘shared responsibility payment’ is a tax for constitutional purposes, but not for purposes of the Anti-Injunction Act.”
His logic was that while Congress did not have the power to require citizens to buy insurance, it could require them to pay a tax.
The Obamacare law already was under attack in the courts for its “mandate” that employers pay for abortifacients for employees. Dozens of lawsuits have been filed by Christian organizations that say the mandate violates freedom of religion.
In a Michigan pending case, the government insisted it has the authority to “substantially burden the exercise of religion” on two conditions – if it is “in furtherance of a compelling governmental interest” and “the least restrictive means of furthering that compelling governmental interest.”
Maybe the Obamacare outrage will be settled by the results of the election Nov. 6.
But this legislation is so egregious on so many levels it completely eviscerates the Constitution in letter and spirit. So it must be challenged by every means necessary or else we abrogate our unique experiment as a constitutional republic.