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WAS THE LAW PRESENTED AS A TAX DURING ORAL ARGUMENT?
by Sharon Rondeau
(Jul. 1, 2012) — On Thursday, it was widely reported by major media that the Patient Protection & Affordable Care Act had been upheld by the U.S. Supreme Court as “constitutional.” At the core of the debate was whether or not the “individual mandate” to compel Americans to buy insurance or pay a penalty by the year 2014 is permitted by the U.S. Constitution.
Twenty-six states plus the National Federation of Independent Business sued Kathleen Sebelius, the secretary of the Department of Health and Human Services, over the PPACA, specifically the provision that the states must expand Medicaid coverage, which they oversee, to more individuals because of new guidelines mandated by the federal government, calling the mandate “coercive” by its threat to “withhold all funding” for the program. As of 2004, the federal government shared the cost of Medicaid with the states at the rate of 50-83%.
The states questioned whether or not the concept of federalism as set forth in the U.S. Constitution was violated by the Medicaid mandate contained in the bill.
Further analysis of the court’s opinion states that “The Supreme Court undermined the healthcare law even as it upheld it.” Have legal analysts had enough time to read and understand what the court said?
Many right-leaning websites expressed anger, outrage, and surprise at U.S. Supreme Court Chief Justice John Roberts’s opinion on the individual mandate. But what exactly did Roberts say? Republican governors have been reported as stressing that Romney should be elected so as to repeal the PPACA.
The opinion voiced by Chief Justice John Roberts and posted on the Court’s website “affirmed in part and reversed in part” (page 2) a decision made by the Eleventh Circuit Court of Appeals prior to the case reaching the U.S. Supreme Court.
Under paragraph 1 on page 2, Roberts explains why a claim that the “Anti-Injunction Act” precluded the lawsuit from being accepted by a court is incorrect. Within that paragraph, Roberts states:
The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.”…
Paragraph 2 states that the Court found that the individual mandate is unconstitutional under the Commerce Clause present in Article I, Section 8 of the U.S. Constitution, which states:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
As a result of the initial reports on the ruling which was issued at approximately 10:08 a.m. EDT on June 28, Fox News, CNN and The Post & Email originally reported that the individual mandate was ruled unconstitutional. Fox and CNN have been derided for posting their reports precipitately, but in regard to the Commerce Clause and how the opinion reads, their early reports were correct.
The court’s opinion stated on page 3 that the individual mandate cannot be governed by the Commerce Clause.
Paragraph 3 on page 3 states:
“CHIEF JUSTICE ROBERTS concluded in Part III-B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable. [Emphasis ours]
Later, those news companies, The Post & Email and other news sources reported that the health care law was “upheld” by the U.S. Supreme Court in a 5-4 decision. Fox later stated, “Supreme Court Rules Individual Mandate Will Become a Tax” in a caption below Karl Rove, who provided analysis of the decision.
But what was it that the Supreme Court actually upheld? Was it truly a “win” for Obama, or is that “spin?”
As an update to our final article of June 28 stating that the Court found the individual mandate “constitutional as a tax,” perhaps the question of how the court rules is not as simple as “constitutional” or “unconstitutional.” Obama has said that the mandate is not a tax. “Team Obama” has stated that the bill cuts taxes for “the average middle-class family” but then describes such “tax cuts” as “tax credits” for such things as paying for a child’s college education and “help” with paying medical insurance premiums.
During oral argument which took place this past March, the Court appeared to view the “penalties” outlined in the bill as “taxes.” Did Roberts actually “decide” that the individual mandate was a tax? Did he have such authority? Was the bill written that way?
Since the ruling, those opposing Obama have focused on his denial that the individual mandate created a tax prior to the passage of the bill in March 2010. Some writers have characterized the bill has containing tax increases.
On page 3, Roberts refers to “the Government’s alternative argument,” which was to consider the requirement for all Americans to buy health insurance or pay a fine a “tax.” Paragraph 4 on page 4 reads:
CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld [emphasis ours] as within Congress’s power under the Taxing Clause.
Mainstream news media are reporting that “virtually no time” was spent during oral argument at the Supreme Court on the tax issue. If it was not argued that the individual mandate was a tax, and Obama denied that it was from the inception of the bill, did Roberts actually uphold it?
Page 5 of the opinion strikes down the requirement that the states must expand their Medicaid program to more individuals as a result of more relaxed guidelines stipulated by the PPACA, but that fact has been misreported. Page 6, paragraph 1 contains the statement, “When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation.”
The second paragraph on page 8 appears to support the concept of federalism, wherein the states have the authority to make their own laws and the federal government retains limited powers as enumerated in Article I, Section 9 of the Constitution and the Tenth Amendment to the Bill of Rights (page 9):
In our federal system, the National Government possesses only limited powers; the States and the people retain the Remainder…
Can states nullify the health care law because of their Tenth Amendment rights?
Page 21 of a brief submitted in defense of the PPACA by the U.S. Justice Department states that “federal statutes compelling individuals to take affirmative steps are commonplace…” and claimed on page 24 that the Commerce Clause allowed for “classic market regulation, intended to correct existing market failures…” In its June 28 opinion, the Court disagreed.
There remain questions as to whether or not Associate Justice Elena Kagan should have participated in the decision announced on Thursday because of her previous position as Solicitor General and the part she played in crafting the legislation.
The government legal watchdog group Judicial Watch stated that the Supreme Court majority rewrote Obamacare and then upheld its constitutionality,” describing the decision as “monstrous” and “tainted” because of Kagan’s possible conflict of interest.
On June 25, 2012, the U.S. Supreme Court ruled that one component of a bill passed by the Arizona legislature was constitutional. Does the “police power” and other states’ rights to which Roberts refers on page 10 include arresting illegal immigrants?
Questions about Obama’s constitutional eligibility and identity have recently been argued in a Florida court, where a judge might be compelled to issue a definition of the term “natural born Citizen,” which appears in Article II, Section 1, clause 5 of the Constitution for the president. It has been opined that if Obama were to be found ineligible to hold the office, all legislation that he has signed would be declared null and void and he could be deemed guilty of perjury and other crimes.