Brian Darling

Congratulations to the Supreme Court’s supreme effort to protect their reputation at the expense of the Constitution and the idea of a limited federal government. The problem with the ObamaCare decision is that the individual mandate is not a constitutional exercise of the federal government’s taxing power.

 

In their dissent, Scalia, Kennedy, Thomas and Alito argued that “in a few cases, this Court has held that a ‘tax’ imposed on private conduct was so onerous as to be in effect a penalty. But we have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power – even when the statue calls it a tax, much less when (as here) the statue repeatedly calls it a penalty.”

 

As Robert Alt pointed out at Scotusblog , “Yes, under well-established precedent, Congress could have devised a tax to support universal health care. But they didn’t, and the Court engaged in feats of statutory contortion to make it look remotely like it was so.” The explicit language of ObamaCare calls the individual mandate a penalty, not a tax.

 

Following the decision, Sen. Rand Paul (R-Ky.) said, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our healthcare right.”

 

You need look no further than the Second Amendment as an example of why Sen. Paul’s analysis is spot on. People have a natural right to keep and bear arms to protect themselves. The Constitution recognizes that right, but does not confer that right to American citizens. We the people have that natural civil right, no matter what the Supreme Court says.

 

And there still remains a remedy to serious judicial errors in interpreting laws – elections. The Supreme Court interprets, yet they are not the final word. Don’t forget that members of Congress take an oath of office to uphold the Constitution. Congress and President Obama know the penalty wasn’t really a tax, and that they actually enacted the law using the Commerce Clause. Accordingly, they can strike down ObamaCare as unconstitutional next year, because the American people have the final word.

 

We the People need to take a hard look in the mirror and craft a comprehensive plan to completely repeal every single word of ObamaCare. No Supreme Court Justice will do it. No member of Congress will do it, without pressure from We the People. In the interim, Congress can defund aspects of ObamaCare.

 

By simply by sticking with the House "Ryan" budget, Congress could defund ObamaCare programs housed within the HHS. They could prevent the IRS from enforcing the individual mandate “tax.” Conservative members of the House and Senate can stick to the Ryan Budget as a means to start the long process of full repeal. If conservatives really believe that ObamaCare is so harmful to our nation's future, they must not agree to fund the leviathan for even one day.

 

Statutory repeal is the ultimate goal, yet there are some problems in the future even with a new crop of Tea Party federally elected officials. If Romney loses, then conservatives won’t have a president who has promised to push for full repeal. If Republicans fail to take over the Senate, then the Senate will not be able to use reconciliation to force through a repeal of ObamaCare using the budget process next year.

 

Even if Republicans win over the Senate, what if Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) balk at using reconciliation to repeal the full law? The full-repeal effort needs to start today with a defunding strategy to kick off a full repeal fight.

 

It is also important to note that the Obama administration relied on the argument before the Supreme Court that ObamaCare is a tax, therefore authorized as part of the taxing power of the federal government. This is a false claim, yet if you take the Obama administration at their word, they supported a massive tax hike on the middle class. All the president’s promises to not raise taxes on anybody but the super rich were apparently a lie.

 

According to the Congressional Budget Office and Senate Minority Leader Mitch McConnell, the individual mandate tax will hammer “at least 77 percent of [middle class] people” using “the President’s own definition of middle class.” McConnell made the point that “those who have to pay the tax will pay an average tax of $1,200. And even if they pay it every year they still won’t have insurance.” ObamaCare was a massive unpopular tax hike on the middle class.

 

The House will vote this week on full repeal of ObamaCare. Let’s make sure this is the beginning of another front in the war for full repeal. And let’s win it this time.

 


Brian Darling

Brian Darling is a Senior Fellow in Government Studies at the Heritage Foundation. Follow him on Twitter @BrianHDarling