It’s not a mandate – it’s a tax! We’re not the ones saying it. It’s the Obama defense. It’s a tax.
Obama promised his version of “Read My Lips – No New Taxes” during the primary and general election campaign. Obama attacked his opponents and said he would never raise taxes for those making less than $250,000. But now “It’s a Tax!” is the Obama defense.
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Yesterday, while Obama and his Dimocrats were celebrating on board the Titanic, a bipartisan group of 13 Attorneys General from across the nation filed legal challenges to the Obama health scam. [Read the legal complaint in a PDF file HERE]
“Americans remain skeptical about the health-care overhaul even after the U.S. House passed landmark legislation that promises to provide access to medical coverage for tens of millions of the uninsured.”
The poll is a batch of bad news for Obama Dimocrats who think they will get a “bump” in the polls they can then exploit with hoop -te-do publicity stunts and turn the “bump” into a permanent “bump” that will forestall electoral disaster in November. It was not so long ago that these same Dimocrats promised and swore that the 2010 and 2012 elections would expand Obama Dimocratic dominance for generations to come. Now it is just “avoid disaster” in the iceberg electoral sea.
Americans applaud the lawsuit again the Obama health scam. The bipartisan groups of 13 Attorneys General filed suit in Pensacola, Florida. Yale’s Jack Balkin anticipated some of the arguments the Attorneys General would pursue. Here is Balkin’s defense of the Obama health scam, from a legal perspective:
“Second, it is not actually a mandate. It is a tax, which people would not have to pay if they purchased health insurance. The House bill imposes a tax of 2.5% on adjusted gross income if a taxpayer is not part of a qualified health insurance program. The Senate bill imposes what is called an “excise tax” — a tax on transactions or events — or a “penalty tax” — a tax for failing to do something (e.g., filing your tax return promptly). The tax is levied for each month that an individual fails to pay premiums into a qualified health plan.”
It’s a tax. “Read my lips” Obama style:
The IRS will be the enforcer. It’s a tax.
Barack Obama attacked Hillary Clinton and John McCain and Sarah Palin by declaring one or all of them were too divisive whereas he would be “a uniter not a divider”, he would pass health care with a ton of bipartisan votes, they were for taxes and he would not raise taxes for those making less than $250,000, they were for mandates whereas he was against mandates, they were for taxing health insurance plans whereas he was against raising taxes on health insurance plans, they would penalize those who did not buy health insurance he would not…. Lies all.
This all goes to show:
Obama simply cannot be trusted. Obama cannot be trusted on any issue. Obama cannot be trusted by his friends. Obama cannot be trusted by his enemies. Obama cannot be trusted.
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Without getting into the weeds of the legal argument, anyone who says they know what will happen in the Attorneys General lawsuit does not know that they are talking about. Indeed, courts are loathe to interfere into the political sphere. However, as Linda Greenhouse has noted, the Supreme Court during the Rehnquist years targeted congressional overreach. Does this sound familiar?:
But the Americans With Disabilities Act, the most important civil rights law of the last quarter-century, was the highly visible product of a bipartisan legislative process, so much so that some people assumed the law might stand as a firewall against the court’s further expansion of state immunity. [snip]
A revolution once begun is not so easy to stop.
The legal issues are only tangentially related, but the question is will the Roberts Supreme Court, have the gumption of the Rehnquist Court and/or is Federalism at the high court dead or is the “revolution” still on? ADA was a bipartisan product where the health scam is not. Will the courts issue an injunction and provide restraint until the American people resolve the issue in November?
In a 90s era gun possession case, United States v. Lopez, the Supreme Court began its assault on the expansive use of the Commerce Clause:
“The Government’s essential contention, in fine, is that we may determine here that §922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. Brief for United States 17. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. [snip]
The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well being. As a result, the Government argues that Congress could rationally have concluded that §922(q) substantially affects interstate commerce.
We pause to consider the implications of the Government’s arguments. The Government admits, under its “costs of crime” reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of Oral Arg. 8-9. Similarly, under the Government’s “national productivity” reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”
The Court struck at the Congressional overreach via the Constitution’s Commerce Clause. The Rehnquist court rejected the argument that “any activity can be looked upon as commercial.” Will the Robert’s Court follow the Rehnquist Court circa 1995?
Others argue that the Attorneys General invoked language in their complaint to tickle the fancy of Justice Scalia in another gun possession case, Printz v. United States. In Printz, Justice Scalia wrote:
“From the description set forth above, it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. [snip]
The petitioners here object to being pressed into federal service, and contend that congressional action compelling state officers to execute federal laws is unconstitutional. [snip]
These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power.
For these reasons, we do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service. Indeed, it can be argued that the numerousness of these statutes, contrasted with the utter lack of statutes imposing obligations on the States’ executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power. [snip]
Not only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the Federal Government may command the States’ executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption.”
Scalia lunges for the jugular:
“When a “La[w] . . . for carrying into Execution” the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a “La[w] . . . proper for carrying into Execution the Commerce Clause,” and is thus, in the words of The Federalist, “merely [an] ac[t] of usurpation” which “deserve[s] to be treated as such.” The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent’s Necessary and Proper Clause argument in New York: “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.” 505 U. S., at 166. [snip]
Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court. Federal commandeering of state governments is such a novel phenomenon that this Court’s first experience with it did not occur until the 1970’s, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and carpool lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues, see Maryland v. EPA, 530 F. 2d 215, 226 (CA4 1975); Brown v. EPA, 521 F. 2d 827, 838-842 (CA9 1975); and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds, see District of Columbia v. Train, 521 F. 2d 971, 994 (CADC 1975). After we granted certiorari to review the statutory and constitutional validity of the regulations, the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and remand for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977).[snip]
“Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear ‘formalistic’ in a given case to partisans of the measure at issue, because such measures are typically the product of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” Id., at 187.
We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Id., at 188.”
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
The Attorneys General in their complaint do their best to almost quote Scalia:
“55. Plaintiffs cannot afford the exorbitant and unfunded costs of participating under the Act, but have no choice other than to participate.
56. The Act exceeds Congress’s powers under Article I of the Constitution of the United States, and cannot be upheld under the Commerce Clause, Const. art. I, §8; the Taxing and Spending Clause, id.; or any other provision of the Constitution.
57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States.
58. The Act violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.”
Before dismissing the very idea of Supreme Court action, let’s recall that Obama Dimocrats were forced to run away from Demon Pass after a legal assault on the concept in the Op-Ed pages of the Washington Post by former federal Judge Michael McConnell.
Randy E. Barnett who teaches constitutional law at Georgetown University is assisting the Attorneys General in their lawsuit and has also taken to the Washington Post to address some of the issues in the Attorneys General complaint.
“Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” [snip]
But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. [snip]
Several states are considering measures attempting to exempt their residents from an individual health insurance mandate. While such provisions may have a political impact, none is likely to have any effect on the legislation’s constitutionality. Under the 10th Amendment, if Congress enacts a law pursuant to one of the “powers . . . delegated to the United States by the Constitution,” then that law is supreme, and nothing a state can do changes this. Any state power to “nullify” unconstitutional federal laws has long been rejected.[snip]
Of course, there is one additional way for states to win a fight about the constitutionality of health-care legislation: Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If two-thirds of state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention. Something like this happened in 1933 when Congress proposed and two-thirds of the states ratified the 21st Amendment, removing from the Constitution the federal power to prohibit the manufacture, sale and transportation of alcohol. But the very threat of an amendment convention would probably induce Congress to repeal the bill.
Here is the Big Question: Will the Supreme Court dare? Barnett:
“But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.”
Will the Supreme Court dare? In Bush v. Gore, absent the very tough Alioto and Roberts, the Court dared.
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Americans have only just begun to resist the Obama health scam. Attempts to slime the resistance as “racist” are in full gear by Big Media but those smears will fail to break the opposition. John Dingell says it will take time to “control the people” but he clearly does not know the answer to that question at the end of the Star Spangled Banner.
Americans don’t want to transfer their wealth to Big Insurance companies and have the IRS enforce payments to Big Insurance companies. Barack Obama will have to break more arms to enforce his scam. Meanwhile, some time today, protected by cameras, acting in shame, Obama will sign what he said he would repeal – and yet another broken promise which Big Media will ignore.
Republicans will fight in the U.S. Senate starting today to block modifications to the hated Obama health scam legislation. Viagra will be one weapon.
Senate Republicans and the Courts have a role to play. But what will stop the Obama scam and madness is Democrats, Republicans, and Independents united against Obama and his Dimocrats – in November 2010.