Posted on 12/19/2009 2:02:22 PM PST by americanophile
Amidst backslapping, vote tallying and questionable deal-making on Capitol Hill regarding the imminent passage of what is being called health care reform, few people, including constitutional scholars have weighed in. On the one hand, their reluctance to voice an opinion is understandable considering that the bill is something of an esoteric document. To date, Senate Majority Leader Harry Reid has yet to unveil this massive bill, that is, even if he’s finished writing it, in a process that all objective observers agree has been byzantine at best. Still, we can gather enough information from the broad outlines of the legislation to take a crack at its constitutionality.
As reported in the press, the bill will utilize the Commerce Clause in Article I, Section 8 of the Constitution to provide the legal basis for regulation in this area. This is hardly surprising since this grossly misconstrued provision is used to regulate almost every aspect of American life that is otherwise off limits to federal authority – the 10th Amendment notwithstanding. It is unclear precisely what approach will be taken here, but at a fundamental level it appears that the bill will require every American (and possibly non-citizen residents) to purchase, with their own money, a commodity (health insurance) from a private company, and penalize them with a tax if they do not. If this is indeed the bill’s basic structure, and that still remains a significant question, there can be little doubt that the product of what President Obama has called a “century-long struggle” is profoundly unconstitutional.
There is simply no basis in the United States Constitution that would provide the federal government with the power to force individuals to purchase commodities. While states have sufficient authority to mandate insurance based on their general legislative power, the federal government’s defined powers don’t provide for any legitimate mechanism to impose this burden. Moreover, the provision meant to enforce so-called universal coverage is being called a tax, but in reality only falls on those individuals who don’t purchase health insurance. Thus, what is deemed a tax is in fact a penalty, which runs directly afoul of the Bill of Attainder prohibition located in Article I, Section 9 of the Constitution.
Thus, the basic provisions of this bill don’t seem to pass constitutional muster on their face. While many liberals are rejoicing, and conservatives fretting about this massive government reordering or nearly 1/6 of the American economy, the only true accomplishment of this legislation may be as a jobs stimulus for constitutional lawyers who are sure to spend months and years fighting over its legality – a period in which Congressional majorities and even White House occupants may well change.
Good Post.
That's why it's a tax bill. Calling it a healthcare bill is a straight-out lie. It's a tax bill that slaps civil and criminal penalties for either 1) not purchasing a health insurance policy from an IRS-approved health insurance provider, or 2) paying an increased tax rate.
And it applies only to people who have been presumed by the IRS to be liable to it's strict, detailed provisions.
And the courts have repeatedly ruled that 1) neither the courts nor the IRS have to explain nor prove their presumption of any application of tax law, and 2) if there is a legal way that they know of that you can show you are exempt, they don't have to tell you about it.
Which means that everyone might well be exempt from this entire healthcare tax bill, and the courts and the governement may well know it, but they don't have to tell you about it. And that if you don't figure it out yourself, and figure out how to present it to them in a way they have to acknowledge, they can come after you anyway, even knowing you are exempt.
I resent that.
[:-)====
(Orthodox Christian monastic smiley.)
While there are tax increases involved in this bill as well, the portion that is particularly unconstitutional is the requirement to purchase insurance from private companies. Purchasing a service or good from a private company is in no way a tax, nor can it be compelled. If that were true, why bother to pass a cash for clunkers bill, why not just require all Americans to buy a new car? That is in essence what the democrats are doing here, forcing purchase of a good or service under penalty of fines and jail.
Personal income is not taxable either, nor is it compelled. Instead, the taxing agencies "presume" you have "volunteered" to pay it, and then go after you for the "fraud" of "violating your commitment" and the "theft" of "stealing" the money you "promised" to pay the government.
Now they're doing the same thing with healthcare.
Take a look at United States v. Butler, 297 U.S. 1 (1936).
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