Posted on 03/25/2012 7:16:59 AM PDT by Lmo56
On Monday the Supreme Court begins three days of oral arguments concerning possible — actually, probable and various — constitutional infirmities in Obamacare. The justices have received many amicus briefs, one of which merits special attention because of the elegant scholarship and logic with which it addresses an issue that has not been as central to the debate as it should be.
Hitherto, most attention has been given to whether Congress, under its constitutional power to regulate interstate commerce, may coerce individuals into engaging in commerce by buying health insurance. Now the Institute for Justice (IJ), a libertarian public interest law firm, has focused on this fact: The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron.
The brief, the primary authors of which are the IJ’s Elizabeth Price Foley and Steve Simpson, says that Obamacare is the first time Congress has used its power to regulate commerce to produce a law “from which there is no escape.” And “coercing commercial transactions” — compelling individuals to sign contracts with insurance companies — “is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today.”
In 1799, South Carolina’s highest court held: “So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts....Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void.”
(Excerpt) Read more at washingtonpost.com ...
I hope you are correct.
LOL, and if it does turn out to be a steak instead of a stake, I hope it's just the bone from a T-Bone!
PING...
I didn’t miss the point, I actually agree with your point...
I am pushing for people to educate themselves on this subject and they may be surprised as to what our Skrool system has suspiciously forgotten to educate us about.
However, Social Security is a “Benefit” and not mandated...
By excepting said “Benefit” you have entered into a “Contract” with USA incorporated and “Volunteered” into becoming a “14th amendment citizen” and you are now bound by it’s terms which DOES include all Statuatory Laws!!!
And you don't get fined, if you don't put into it ...
The augment that 0-care is just a tax like SS, was rejected by some of the liberal lower court decisions that still upheld 0-care under the commerce clause. The 0-care mandate penalizes those that refuse to buy insurance with a fine, a penalty. The courts have made a clear distinction between a penalty and a tax. Forcing people to enter into private contacts, and calling that a tax, exceeds even an ardent Leftist’s capacity for pretzel logic.
If I were a legal expert called to provide testimony for any legal hearing on the basic premise of this article, my testimony would be:
“Your Honor. No, duh!”
The augment that 0-care is just a tax like SS, was rejected by some of the liberal lower court decisions that still upheld 0-care under the commerce clause. The 0-care mandate penalizes those that refuse to buy insurance with a fine, a penalty. The courts have made a clear distinction between a penalty and a tax. Forcing people to enter into private contacts, and calling that a tax, exceeds even an ardent Leftist’s capacity for pretzel logic.
I thought they passed it specifically as NOT a tax because to do that they would have lacked the votes to pass it, so they called it something else?
“However, Social Security is a “Benefit” and not mandated...”
There are two things in play with what you wrote and this is not just my opinion but historical fact, and what I am going to point out to you is extremely relevant to the Obamacare case because it is what the democrats planned from the outset based on the Social Security constitutional challenge of 1935:
The two things in play are in your terms and my terms:
1. Benefit
2. Tax
SCOTUS does not look at these two things as one singular entity.
Now it is true what you said that Social Security is/was a Benefit and not a mandate, and the words of FDR that are part of the historical record shows he knew that he would lose by imposing a ‘benefit’ on the American People. So he switched from a ‘benefit’ argument to a ‘tax’ argument.
So your argument about not being legal to force a ‘benefit’ is fine, pat yourself on the back. But it does not matter that you won that argument because you lose the other argument, the ‘tax’ argument.
Now you are like the football fan whose team is down by a field goal and later you jump and cheer when your team intercepts a pass and runs for a touchdown. But in the final play the other team scores a touchdown and you lose.
They are going to lose on the ‘mandate’ argument and they are going to win on the ‘tax’ argument, and thus the American People lose.
later read
Don’t all the people who will be deciding the case (SCOTUS)have a vested interest in the outcome? Aren’t they all exempt? And don’t one or two have conflicts of interest. My goodness, one even helped write the d##n thing. I’d lilke to see THOSE arguments used.
That’s right. A new tax to fund 0-care would have not passed. During the New Deal, the Marxists also tried to hide the fact that SS was a tax, but the fact is that they did set it up as a tax as is evident by looking at your paycheck. Same thing with Medicare in the 60s. It should also be pointed that because SS is a tax, any promised ‘benefits’ are solely dependent on whatever the government decides it wants to give to the beneficiaries.
Contract? Everyone is talking about contracts. The powers that be will weasel-word their way around that and call whatever they come up with “compulsory.” They don’t need no stinkin’ “contracts.”
(I so hope I’m wrong)
There are several lower court decisions that conflict with each other.
Obamacare has two types of penalties:
1) penalties for not buying health insurance which should be struck down by SCOTUS and
2) penalties for not paying the taxes levied in Sections 9005 and 9015 and these taxes and penalties will not be struck down.
Google the legislation and you will see for yourself.
SCOTUS will uphold the Obamacare taxes because they can’t do anything else. These taxes give government power to tax private health plans and incomes, and these tax revenues can be used to expand state medicaid programs, in other words take money from incomes and private health insurers and give it to government run health programs.
http://www.ssa.gov/history/pdf/hhr35129.pdf
Here are Roosevelt’s words and this is what the democrats are using:
“We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions and unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program.”
Notice carefully in his words how in the first sentence he uses the word ‘contributions’ and in the second sentence uses the word ‘taxes’.
I don’t think it can be made any clearer, the democrats are going to tax us for their universal healthcare plan and the whole issue of contract nullification or commerce clause overreach is not as important to them as getting their taxes to destroy or control the private healthcare system in the United States.
Thanks for clearing that up. Since it technically is not a tax, ie could not have passed as a “tax” I don’t understand how some of the arguments to keep it are based on it being a tax. It seems that those arguments would be thrown out right away. One I heard was that there might be no decision because it would have to wait until someone was actually wronged, that is that nobody has paid the “tax” yet, so the question can’t be brought. It is getting ever more difficult to navigate reality when words mean whatever it is convenient for leftists to say they mean at any given time.
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