Calling mandate, penalties a 'tax' creates huge constitutional problem
The penalties Americans will be required to pay under Obamacare for going without health insurance were declared constitutional in a U.S. Supreme Court decision that hinged on Chief Justice John Roberts’ assertion that the assessments are taxes.
But a legal challenge to the federal government takeover of health-care decision-making says that’s a problem, because Harry Reid created the Obamacare legislation, with all of its new “taxes,” in the U.S. Senate.
any tax bills to begin in the House.
The demand for an explanation is being raised in an amended complaint filed by the Pacific Legal Foundation, which is representing a man who believes the new bureaucracy isn’t legal.
“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.
But Reid introduced the tax plan in the Senate, not the House, as the Constitution’s Origination Clause requires for new revenue-raising bills, in Article I, Section 7, the legal team argued.
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.
His lawsuit was filed before the Supreme Court opinion was released by Roberts, but it was on hold while that case from the National Federation of Independent Business and 26 states was pending.
The plaintiffs in the Supreme Court case alleged that a mandate to buy insurance was a violation of the Constitution’s Commerce Clause, and the Supreme Court agreed. But Roberts’ opinion simply changed the “penalty” as it was enacted by Congress to a “tax” and deemed it constitutional for that reason.
Reid took a House-passed bill that helps veterans buy homes, eviscerated it and inserted the Obamacare language.
“When we focus on the Origination Clause, we’re not talking about dry formalities and this isn’t an academic issue,” said Beard. “The Founders understood that the power to tax, if misused, involves the power to destroy, as Chief Justice John Marshall put it. Therefore, they viewed the Origination Clause as a vital safeguard for liberty. They insisted that the power to initiate new taxes should be left with the lawmakers who are most directly accountable to voters – members of the House, who are elected every two years by local districts.”
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.
But Roberts’ holding that the payments are taxes “raises new questions about the tax’s conformity with other constitutional provisions,” which the court left unresolved, the legal filing said.
“Despite the fact the act raises considerable revenues, it originated in the Senate, not the House,” the brief argues. “The Affordable Care Act was not the result of a lawful amendment of H.R. 3590, because the subject matter of the one had nothing whatsoever to do with the other.”
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.”