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MAJORITY’S DECISION MIGHT NOT WITHSTAND FURTHER LEGAL SCRUTINY

by Sharon Rondeau

Can the health care bill's penalty on people who do not purchase insurance qualify as a tax under the Constitution, or was the Roberts majority acting politically?

(Jul. 2, 2012) — Earlier today, The Post & Email asked whether or not the Supreme Court decision released on Thursday on the health care law is being misrepresented in the national media by characterizing that the law was “upheld.”

Chief Justice John Roberts wrote the opinion of the “majority,” which stated 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.”

On page 21 of Roberts’ opinion, he states:

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act…

It had been contended that the Anti-Injunction Act might have precluded the Court from hearing the case, with which the Court disagreed.

In section III directly below, Roberts states that the defendant (the Government) contended that “Congress had the power to enact the mandate under the Commerce Clause,” but then said, “if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress’s power to tax.”

At the bottom of page 26, Roberts wrote, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”  The case Wickard v. Filburn is cited on page 27 as an overreach of Congress to limit the amount of what a farmer could grow in order to force a stabilization of wheat prices.  The Roberts Court stated that the Government was attempting to extend congressional reach even farther by ordering people to do something in which they were not already engaged, as opposed to the farmer in Filburn who was “engaged in the production of wheat.”

Roberts then likens the Government’s argument to compelling people to eat a more balanced diet.  “People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce.  Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.  That is not the country the Framers of our Constitution envisioned…”

On page 30, Roberts states, “The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.  There is no reason to depart from that understanding now.”  At the bottom of the following page, he states, “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.”

Throughout this early section of its opinion, the Court makes clear that it found the Government’s “Commerce Clause” argument unpersuasive and summarizes that fact on page 38.  An editorial writer at The New York Times opined that Roberts’ ruling was a “commerce clause victory” in regard to limiting what has been the ever-broadening of Congress’s reach over time.

The Court then turns its attention to “the Government’s alternative reading of the statute,” which is described as a tax levied on “those without insurance,” which the Court states is “a reasonable one.”

The Court stated that the Government’s argument in that case “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income…”  Roberts then repeats the decision in Hooper v. California, which asserted that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

Roberts then states that the argument presented by the Government that the individual mandate levied a tax on some sectors of the population was plausible.  On page 45, Roberts states that the tax aspect of the individual mandate is legitimate even if it was not described as such in the bill or by the Government.  He states that in imposing the tax on those who choose not to buy health insurance, “Congress has used an existing” “taxing power.”

In their dissent, Associates Justices Alito, Scalia, Kennedy and Thomas disputed Roberts’ claim that the individual mandate could be construed as a tax.  On page 144, they state, “…we cannot rewrite the statute to be what it is not.”  They state that there is a significant difference between and penalty and a tax, and that the mandate cannot be considered a tax.

The Post & Email has spoken with a legal analyst who has read the 193-page opinion.  “As a matter of applying the rule of law, they have struck the bill down entirely,” he said.  What the majority has done is exceeded their authority and created law, not applied the law.  They’ve usurped Congress.  They struck down the individual mandate under the Commerce Clause as well as the Medicaid expansion.  Without those two provisions, the entire bill is unworkable.

“There is the legal doctrine of severability which must be applied whenever a statute is examined.  It’s a two-part test.  If part of a law is declared unconstitutional, they have to ask, “If this part is unconstitutional and we remove it, does the rest of the statute reflect the intent of Congress and would they have written the rest of it?  The rest of it could still have the intent, but it might be that without the parts that are unconstitutional, they never would have written it.  If either one fails, then it goes down.  What that means is that if any one part or more are found to be unconstitutional and the rest of it can’t stand up to either one of these tests, then the whole statute has to go down as unconstitutional.  And that’s what happened in this case, except the majority didn’t apply severaability.  They strayed into territory with no law whatsoever.”

We then asked, “What do you think the majority opinion means?” and he replied:

This is a completely political decision.  Everyone is under the delusion that the “Affordable” health care act is meant to provide health care.  That’s just the way it’s being sold – to cover millions of people who are uninsured and lower your insurance costs.  This is just a sales job.  The real purpose of this act is to destroy the finances of the United States, to put us further into debt.  That’s the real purpose of it; that was always the real purpose of it.

The Post & Email asked, “Is that your opinion or based on evidence that you’ve seen or read?”

It’s based on the nature of our government and the history of the United States, and realizing who is in power.  It’s not Obama and the Congress; it’s an agent for a New World Order group of bankers.  It’s the Bilderbergers; they are the ones who choose the president and finance senatorial campaigns, for example.  The purpose is to cause the United States to have to borrow money.  They want us to continue to have to borrow money.  The more debt we have, the more we have to borrow.  Who do we borrow this money from?  Are we borrowing it from the American people?  No, we’re borrowing it from the Federal Reserve and the world bankers, and they put us further and further in debt, which makes us slaves to them.   That’s what this is all about; that is what the health care bill was always all about.

When you read the dissent, you will see that the entire bill has been struck down.  By removing those two pegs, it eliminates everything else.

Let me talk about how the majority has tried to rescue this, which they don’t even have the authority to do.  They tried to rescue this by recharacterizing the penalty for not buying insurance as a tax.  Well, now, excuse me, but that’s not their job.  They don’t have the authority to do that.  They then went and rewrote the bill.  If you look at the dissenting opinion, it says that 18 times in the bill, it was a penalty.  The advocates for the government never argued that it was a tax; they argued over and over again that it was a penalty.

And where did this bill originate?  It originated in the Senate.  If you look at the bill, it was never their intention to make this a tax as a penalty for not paying.  Their intention was that it would be the law that you would have to get insurance, and if you didn’t, they would charge you a penalty, not a tax.  It doesn’t matter whether they call it a tax or not; it’s a matter of how it’s applied, and it’s going to be applied as a penalty for not having insurance, which makes it a penalty, not a tax.

The point is that the Congress never intended for this to be a tax; they intended it to be a penalty.  They clearly stated that it is a penalty. The fact that it originated in the Senate means that it has be be a penalty because the Senate is not authorized to create taxes.  Only the House of Representatives is authorized by the Constitution to raise taxes.   The Constitution gives that power only to the House; it certainly doesn’t give it tot he Judiciary.  The Judiciary can’t take a bill that’s before them that doesn’t say anything about a tax and calls it a penalty, and in an attempt to try to rescue the rest of the bill by ignoring severability and  recharacterizing it as a tax and saying, “It stands as a tax”…the Supreme Court doesn’t have the authority to do that!  They can’t rewrite the bill and call it a tax to make the parts that they want to survive ‘constitutional” when they’ve already defeated it by declaring the main tenets unconstitutional.

This shows you what’s going on.  If you read the rest of the dissent, Scalia shows that the purpose of intent of the Congress by putting in the individual mandate and an increase in Medicaid expansion that the states would be forced to do, the rest of the bill – the lowering of the costs and other  details – shows that they were all predicated on the universal coverage and Medicaid expansion.  If you remove those two things, the rest of it is going to go ballistic.  The costs will go out of control, and nobody is going to want it.  The problems that that creates were meant to be addressed by the two pillars that they struck down as unconstitutional.

So by severability, it creates a new intent that Congress never intended, and they never would have written those other parts without the two parts that they struck down.  So it fails both tests, and they make this clear.  Therefore, the whole bill collapses.  On the fourth page of the dissent, they say that the whole law goes down in flames.

That means that the costs are going to skyrocket, which will create massive mayhem. Insurance companies will be destroyed; it is going to cause billions and billions of dollars of debt for the government.   That’s what they show in the dissent.  Well, this is why they did it; this is who John Roberts works for.  This is why the government is all happy about it.  This was the plan all along:  to create massive amounts of debt that the government had to borrow for.

“And you believe that the reason was so that the United States would have to surrender its sovereignty and become part of a one-world government?”

Well, we already have.  The elitists are the ones who put Obama in power.  That’s who picked Romney.  If you go to Alex Jones and Infowars, they covered the meeting when he was there.  They picked Romney and Obama; they picked the Bushes.  They’re the ones who own the Federal Reserve and appoint the Treasury Secretary; the same people who are on the board of the Federal Reserve are on the board of the World Bank and all these other banks; they’re the ones getting all the bailouts and money.  The country is not yours; it belongs to this group of people, and their job is to create as much debt as possible so that they can print as much money as they want and have it loaned to the government, which makes the American people owe these bankers more and more money, and they have more and more control over us.

That’s what this bill was always  about.  That’s what Social Security was really about.  It’s a Ponzi scheme.  You can see that John Roberts, Kagan and Sotomayor are political hacks.  Kagan worked on the health care bill when she was solicitor general and didn’t recuse herself.  If you read the dissent, you will see that they’re not applying the rule of law.  This is political…”We’re going to make this a tax.”    The court doesn’t  have the right to make it a tax.  It’s not applied as a tax; if you don’t get it, then they charge you a penalty.  That’s not a tax.  They’ve just ruled that they can’t force you to get it, so how can they say that the government doesn’t have the right to force you to buy a product, but then they’re going to tax you if you don’t buy the product?  And that’s actually not a tax; it’s a penalty.  You can call it a tax all you want, but if it looks and talks and walks like a duck, it’s a duck.

This is like saying that Obama is a natural born citizen when in fact, he isn’t.

The bill originated in the Senate, so it cannot possibly be a tax.  It was not argued as a tax.  The dissent makes this clear.  They say that the majority is far off-base, clearly exceeding its authority.

The majority struck down the individual mandate and the Medicaid expansion as unconstitutional.  That’s all that matters.  The rest of it then falls.  The dissent discusses the majority’s attempt to create a tax.  Is it a direct tax or an indirect tax?  They don’t even make that clear.  They tried to say that it is a direct tax but it doesn’t have to follow the rules of direct taxation.  Oh, really?  Since when does the Supreme Court have the ability to override the Constitution when the Constitution says that all direct taxes must be apportioned?  So is it a direct tax or is it not a direct tax?  So they even muddled that.  They addressed this in the dissent.

This will never stand; it will never, ever stand.  It can now be challenged again on the mess that Roberts and the majority have created.  All you have to do is bring up all the points that are in the dissent and any other court challenge, and it will be right back before the Supreme Court.

Do you think perhaps Roberts ruled the way he did so that it could be challenged again?

I honestly believe that he did it because he’s in league with the bankers.  I believe that he has stocks in these banks.  If you studied John Roberts’ assets and where they are, I think you would discover that it’s in his interest to put the United States into debt.  The more debt created, the richer the bankers will become and the more profits Roberts will make.  That’s what I think is going on.  This is not the rule of law, and the dissent makes this clear.  The majority “made” the law by calling it a tax, actually rewriting it.  By calling it a tax when it’s not a tax and nowhere in there is a it a tax; and it can’t possibly be a tax because it’s a penalty, they’re actually rewriting the law.  That’s not their job, and the dissent makes this clear.  They make it clear that once you determine that those other two aspects fall down, the rest of the statute falls.

Even if you eliminate the tax aspect, you cannot preserve anything that’s left, because then you are rewriting the bill, because the bill relies on those two parts for the rest of it to follow.  If you remove those two parts, the rest of the bill does not reflect the will of the Congress; it doesn’t reflect anybody’s will; it just reflects the will of the court.  And this is what the dissent says:  that that’s not their job, and John Roberts went and did it anyway.

What’s happened as a matter of law is that the bill has been struck down in its entirety; it’s just that they don’t want to admit that, and the public doesn’t understand it because of the shenanigans that the majority has pulled which won’t stand muster.  All you have to do is look at the dissent, make the arguments that are in the dissent, challenge these other aspects, and they will be forced to revisit this.

I think the Congress and the government know they have lost.  I think they know that the Affordable health care act is completely unenforceable.  I think they’re going to have to repeal it entirely.

 

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  1. This analysis is founded on the premise that the US Constitution is intact! However, there is abundant evidence it is not! Obama sitting in the Oval Office is just one small example of its demise! It is clear to me that, as your expert states, the New World Order of bankers are in charge rather than the sham US government.