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Obamacare’s Unconstitutional Origins - Tax legislation has to originate in the House; the health...
National Review Online ^ | October 5, 2013 | Andrew McCarthy

Posted on 10/05/2013 12:05:42 PM PDT by neverdem

Tax legislation has to originate in the House; the health-care law didn’t.

Of all the fraud perpetrated in the passage of Obamacare — and the fraud has been epic — the lowest is President Obama’s latest talking point that the Supreme Court has endorsed socialized medicine as constitutional. To the contrary, the justices held the “Affordable” Care Act unconstitutional as Obama presented it to the American people: namely, as a legitimate exercise of Congress’s power to regulate interstate commerce.

To sustain this monstrosity, Chief Justice John Roberts had to shed his robes and put on his legislator cap. He rewrote Obamacare as a tax — the thing the president most indignantly promised Americans that Obamacare was not. And it is here that our recent debate over the Constitution’s Origination Clause — the debate in which Matt Franck, Ramesh Ponnuru, Mark Steyn, and yours truly have probed the historical boundaries of the “power of the purse” reposed by the Framers in the House of Representatives — descends from the airy realm of abstraction and homes in on a concrete violation of law.

It is not just that the intensely unpopular Obamacare was unconstitutional as fraudulently portrayed by the president and congressional Democrats who strong-armed and pot-sweetened its way to passage. It is that Obamacare is unconstitutional as rewritten by Roberts. It is a violation of the Origination Clause — not only as I have expansively construed it, but even under Matt’s narrow interpretation of the Clause.

It is worth pausing here briefly to rehearse an argument often made in these pages before the Supreme Court ruling two summers ago. The justices’ resolution, whatever it was to be, would in no way be an endorsement of Obamacare; it would merely reflect the fact that our Constitution, designed for a free people, permits all manner of foolishness. “Constitutional” does not necessarily mean “good.” What Obamacare always needed was a political reversal in Congress. Thus, it was unwise for Republicans to become passive while hoping the justices would do their heavy lifting for them — both because it was unlikely that this Supreme Court would invalidate Obamacare and because a ruling upholding it would inevitably be used by the most demagogic administration in history as a judicial stamp of approval for socialized medicine.

Contrary to Obama’s latest dissembling, the Supreme Court’s decision is far from an imprimatur. The president insisted that Obamacare was not a tax, famously upbraiding George Stephanopoulos of the Democratic-Media Complex for insolently suggesting otherwise. Yet, the narrow Court majority held that the mammoth statute could be upheld only as an exercise of Congress’s power to tax — i.e., contrary to Obama’s conscriptive theory, it was not within Congress’s commerce power to coerce Americans, as a condition of living in this country, to purchase a commodity, including health insurance.

Note the crucial qualifier: Obamacare could be upheld only as a tax. Not that Obamacare is necessarily a legitimate tax. To be a legitimate tax measure, Obamacare would have to have complied with all the Constitution’s conditions for the imposition of taxes. Because Democrats stubbornly maintained that their unilateral handiwork was not a tax, its legitimacy vel non as a tax has not been explored. Indeed, it is because Obamacare’s enactment was induced by fraud — a massive confiscation masquerading as ordinary regulatory legislation so Democrats could pretend not to be raising taxes — that the chief justice was wrong to rebrand it post facto and thus become a participant in the fraud.

We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

If you’ve followed our recent debate, you know I’ve argued that the continuing resolution (CR) — the legislation at issue in the current congressional impasse that has partially shut down the government – violates the Origination Clause. The Senate presumed to add Obamacare spending to a House CR bill. I contend that the Origination Clause means that not only tax bills but government spending bills must originate in the House because the Clause was intended to vest the House with control over the “power of the purse.” Matt disagrees.

Our dispute over Obamacare spending in the 2013 CR, however, has no bearing on the Origination Clause analysis of the 2010 Obamacare law itself. The Affordable Care Act, the Supreme Court has held, was a straightforward tax. No theorizing about spending is necessary. Everyone agrees that tax-raising measures must originate in the House.

Obamacare originated in the Senate.

It was introduced in Congress in 2009 by Senate majority leader Harry Reid, who called it the “Senate health care bill” (a description still touted long afterwards on Reid’s website). Employing the chicanery that marked the legislation through and through, the Democrat-controlled Senate turned its 3,000-page mega-proposal into a Senate amendment. The Senate attached its amendment to a nondescript, uncontroversial House bill (the “Service Members Home Ownership Tax Act of 2009”) that had unanimously passed (416–0) in the lower chamber.

Thanks to the Supreme Court, it is now undeniable that Obamacare was tax legislation. It was also, by its own proclamation, a bill for raising revenue. Democrats maintained that the Senate proposal would reduce the federal budget deficit by $130 million. More to the point, the bill contained 17 explicit “Revenue Provisions” — none of which was remotely related to the House bill to which the Senate proposal was attached.

Therefore, Obamacare is revenue-raising tax legislation, originated in the Senate in violation of the Constitution.

This has the Obama administration and its Justice Department scrambling. House conservatives, led by Representative Trent Franks (R., Ariz.), are pushing an Origination Clause challenge in the federal courts.

Feebly, Attorney General Eric Holder’s minions rationalize that, even if the Senate initiated Obamacare, the House can be said to have “originated” it because the lower chamber did not object to the Senate’s maneuver. This desperate flyer, though, is easily grounded. Obviously, there was no objection because the House was then under control of Speaker Nancy Pelosi and the Democrats. Either they were in on the charade, or — accepting Pelosi’s curious explanation that the bill had to be passed before anyone could “find out what is in it” — they were ignorant of the bill’s contents.

More important, though, the lack of a House objection is immaterial. While the Framers were men of great foresight, their assumption that the governmental bodies they were creating would zealously defend their institutional prerogatives did not anticipate modern progressives, for whom social engineering is a higher priority than constitutional propriety. But this ideological rationale for failing to assert the House’s prerogative does not matter because the point of the Origination Clause was to vest the power of the purse in the people. The privilege to originate spending belongs to us, not to Ms. Pelosi.

The House’s default is not a waiver by the people. Moreover, it is not even clear that then-speaker Pelosi was derelict in not raising an origination objection. After all, (a) proponents were adamant that Obamacare was not tax legislation (i.e., maybe Pelosi actually believed the president); and (b) Pelosi indicated that she was in the dark about the legislation’s contents (i.e., waivers of constitutional prerogatives have to be knowing and voluntary — rights cannot be forfeited in ignorance).

Representative Franks has introduced a resolution (H.R. 153) expressing the sense of the House of Representatives that the Obamacare legislation clearly violated the Origination Clause. The measure is gaining momentum. As it rapidly picks up co-signers, the resolution should materially advance the cases filed against Obamacare, including one to be argued this fall in the D.C. Circuit federal appeals court. After all, if a statute violates the Origination Clause, it is a nullity — invalid from the moment of enactment.

Nevertheless, Republicans should not make the same mistake they made during prior legal challenges to Obamacare. This is not a time for leaders once again to sit idly by with fingers crossed, praying that judges do the heavy lifting for them. The legerdemain that characterized Obamacare’s passage, coupled with its patent lack of constitutional legitimacy, should stiffen the resolve of the House to refuse funding — as it is the House’s prerogative to do.

Once again, the president is not telling the truth about Obamacare. The Supreme Court did not endorse it. The Supreme Court said it could only conceivably be sustained as a tax. It still had to pass the Constitution’s tests for valid taxation. It failed.

— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: obamacare
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To: neverdem

The dumb lawyer in a SC robe, has it FUBAR.


21 posted on 10/05/2013 1:56:02 PM PDT by VRWC For Truth (Roberts has perverted the Constitution)
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To: neverdem
Follow the link embedded in this post that was sent to me for a 3-page Forbes review of pending Supreme Court cases that remain that challenge Obamacare.

Of note is the first case in this review that tests the Origination Clause. They are unclear as to whether the Court would consider this a "technicality" or would scuttle the whole thing over it.

On the one hand, the Senate took a bill that originated by Charlie Rangel in the House, but gutted it entirely and replaced it with Obamacare. On the other hand, if the Court doesn't uphold the spirit of the Origination Clause, they are effectively removing the power of the purse from the House forever more.

-PJ

22 posted on 10/05/2013 2:01:51 PM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: musicman

Interesting point.


23 posted on 10/05/2013 2:26:41 PM PDT by Gator113 (The mighty Bear ate the cowardly rat. Obama must resign.)
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To: neverdem

Thanks for the ping.

Tax legislation has to originate in the House; the health-care law didn’t.
***Along exactly this line, I posted this vanity:

Obamacare/shutdown vanity: Why doesn’t the house of reps just follow the law?
http://www.freerepublic.com/focus/f-chat/3074653/posts


24 posted on 10/05/2013 4:21:21 PM PDT by Kevmo ("A person's a person, no matter how small" ~Horton Hears a Who)
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To: musicman

“Well Oct 1st has arrived. The first actual payee would THEN have “standing” to take Obamacare to court.”

I’ve posted elsewhere that the USSC majority opinion appeared to reference the ripeness issue. The taxes won’t be paid until at least next year though.


25 posted on 10/05/2013 5:04:57 PM PDT by lepton ("It is useless to attempt to reason a man out of a thing he was never reasoned into"--Jonathan Swift)
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To: musicman

“And until someone actually pays that tax and files a claim in court, it is ‘premature/unripe’.

“Not that I especially expect it, but the USSC could overturn the individual mandate without contradicting their previous ruling. There were actually suggestions of this in the previous ruling, though I consider that rather bare thread to hang onto considering the pressure to be put on them if they overturn it after all the expense and disruption the nation has gone to to implement it.”


26 posted on 10/05/2013 5:07:18 PM PDT by lepton ("It is useless to attempt to reason a man out of a thing he was never reasoned into"--Jonathan Swift)
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To: lepton

Thanks for the replies to my post.

I hope someone makes an attempt to get this case to SCOTUS soon.


27 posted on 10/05/2013 7:24:30 PM PDT by musicman (Until I see the REAL Long Form Vault BC, he's just "PRES__ENT" Obama = Without "ID")
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To: neverdem

Thanks for the ping!


28 posted on 10/05/2013 8:59:00 PM PDT by Alamo-Girl
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To: neverdem

Compliance with Obamacare violates Doctor Patient Confidentiality.

Obamacare is in violation of the Doctors Hippocratic Oath as follows:

” - - - All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal. - - - “

Another line of legal reasoning involves comparing Obamacare to all the do’s and don’ts the Federal Government has put into Law about our “privacy rights” such as HIPPA, questions that future employers can and cannot ask at one’s job interview, etc.

A criminal at arrest time has the “right to remain silent” which is not an option for any of us - - - , as our Doctors have been forced by the damn Federal Government to betray us over our very loud protests.

Class Action Law Suit anyone?

Might be something for Senators Cruz and Lee to file on our behalf ?!


29 posted on 10/05/2013 10:17:37 PM PDT by Graewoulf (Traitor John Roberts' Marxist Obama'care' Insurance violates U.S. Constitution AND Anti-Trust Law.)
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To: neverdem
President Obama’s latest talking point that the Supreme Court has endorsed socialized medicine as constitutional. To the contrary, the justices held the “Affordable” Care Act unconstitutional as Obama presented it to the American people: namely, as a legitimate exercise of Congress’s power to regulate interstate commerce.

To sustain this monstrosity, Chief Justice John Roberts had to shed his robes and put on his legislator cap. He rewrote Obamacare as a tax — the thing the president most indignantly promised Americans that Obamacare was not.

Once again, the president is not telling the truth about Obamacare. The Supreme Court did not endorse it. The Supreme Court said it could only conceivably be sustained as a tax. It still had to pass the Constitution’s tests for valid taxation. It failed.

Andy McCarthy nails it. Hopefully our GOP congress is listening and will implement this strategy to invalidate this improper 'tax'.

30 posted on 10/07/2013 4:50:27 AM PDT by Servant of the Cross (the Truth will set you free)
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To: neverdem

One of the most important things going on right now. Weekend BUMP !


31 posted on 10/12/2013 11:07:16 AM PDT by Weirdad (Orthodox Americanism: It's what's good for the world! (Not communofascism!))
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To: neverdem
Peace, neverdem,

The final step which National Review omits is that unconstitutional laws are void upon passage. From Sixteenth American Jurisprudence, Second Edition, Section 177. (late 2nd Ed. Section 256), " The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The Constitution of the United States is the supreme law of the land, and any statue, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it . . . A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it. [My emphasis]"

No one is bound to obey the ACA. It was unconstitutional upon passage, due to violation of Article 1, Section 7. The People must resist this tyrannical overreach.

James R. McClure Jr.
Anti-federalist Democrat candidate for IN9

32 posted on 10/31/2013 7:12:19 PM PDT by James R. McClure Jr.
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To: neverdem; MrChips; butterdezillion; All

PING !


33 posted on 10/31/2013 7:16:50 PM PDT by Graewoulf (Traitor John Roberts' Marxist Obama'care' Insurance violates U.S. Constitution AND Anti-Trust Law.)
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To: Republicanprofessor

PING !


34 posted on 11/01/2013 4:06:50 AM PDT by Graewoulf (Traitor John Roberts' Marxist Obama'care' Insurance violates U.S. Constitution AND Anti-Trust Law.)
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