Does the Constitution Prohibit Obamacare Waivers? [Reader Post]

Loading

As I was reading through all of the fallout discussions from Roberts’ decision on Obamacare, it suddenly occurred to me that most of the analysis to date has been done under the assumption that the Commerce Clause was the keystone of the legislation, not the power of Congress to tax.  What happens when you look at Obamacare from a perspective of Congress’ ability to tax?

Right off the bat, I thought of the Obamacare waivers being granted to all of his union buddies and assorted other Democratic allies.

It is supposed to be unconstitutional for Congress to pass a tax law targeting an individual or organization.  See Bill of Attainder under Article 1, Section 9, Paragraph 3.  This was highlighted in recent weeks by the obnoxious political posturingagainst Eduardo Saverin of Facebook fame, wherein Chuckie Schumer attempted to pass a tax law targeted solely at capturing some of Saverin’s Facebook IPO gains.

So, it is unconstitutional to target a tax penalty against an individual or organization.

Isn’t it thusly unconstitutional to target a tax benefit in favor of a specific individual or organization?  Can Congress pass a law allowing an unelected group of bureaucrats to eliminate the tax penalties of specific people for whatever reason they deem appropriate?

How about we have a tax lottery?  Some committee  in DHS can hold a suggestion contest, “Who Can Come Up with the Least Offensive Way for Us to Play with Your Private Parts”, and the winner is awarded the right to no longer pay federal income tax. Exempt.

Currently, we have a committee in HHS determining who has to pay certain taxes.  Can’t some other government committee decide to allow waivers on other taxes?  For whatever reason they see fit?  Of course not.

The controversy over the Obamacare waivers is not new.  Milton Wolf had a great column on this at the Washington Times last year.  My question is whether the Supreme Court decision that Obamacare is a tax now means that instead of merely tyrannical, the waivers are, in fact, unconstitutional.

Crossposted from Blogs of America

0 0 votes
Article Rating
Subscribe
Notify of
10 Comments
Inline Feedbacks
View all comments

Obamacare is constitutional simply because a majority of the Supreme Court Justices say it is. Period. Any reason they come up with suffices.

This has been the rule of law in the US ever since Chief Justice John Marshall usurped the power of judicial review. There is no such power in the written Constitution nor is judicial review allowed under our Common Law heritage. But Marshall’s assertion of power has been acceded to ever since he made it, and he effectively amended the Constitution. So there it is. Whining doesn’t change anything.

Anyone who does not like this situation has to work to amend the Constitution. Personally, I would abandon it and return to the Articles of Confederation. Failing that I would break up the US into some 10 to 100 smaller, independent states. The US has outlived its usefulness.

Chip, Obama using the Chicago patronage system to reward sycophants and to consolidate power has been annoying and it is probably unjustified legally; yet, our spineless politicians and biased media will never challenge the promotion of local corrupt demagoguery to the national level, because it is “The Won.” Thank you for bringing this national embarrassment to the forefront.

The Bill of Attainder prevents Congress from targeting any one or group of people for a tax, but a waiver is not the same thing.
Lots of people get waivers from taxes and penalties.
California’s solar desert plans had to get waivers so they could wipe out desert reptiles, birds, bats and desecrate ancient holy lands.
I guess the trick is to get the waiver.
Many states applied to get them.
Florida got a special deal on freezing Medicare costs there for a long time under ObamaCare.

Not sure what you’re getting at here, Chip. The dissent discussed the waivers and exemptions, starting on pg 147 of the opinions. However not in the context that waivers are outside of Congressional constitutional authority, but discussing whether the mandate is actually a “tax”, as the majority opinion labeled it.

Waivers for taxation to both individuals (i.e. no income tax requirements under a certain annual amount of earnings) and organizations (non profits/churches etc) are common. Neither the court opinion, or the dissent, has any question about waivers. Someone certainly is allowed to file a suit questioning that power – being as you can proverbially sue a ham sandwich within our system – but I doubt they’d get anywhere with it. However they’d sure spend a lot of money getting an education that is already readily available for free.

@bob sykes, not withstanding the Herculean task of disentangling over 200,000 pages of US Code blanketed over the current Republic – a problem that would also exist with any State’s attempt to secede from the nation – I don’t see how forming new, smaller unions or complete State autonomy is an improvement. The EU experiment isn’t working out so well using that quasi model, attempting to be their own United States of Europe and adoption of the Euro.

The initial concept of the Republic… and why it was created as a Republic to being with… was to provide (including but not limited to) for common international and intrastate commerce needs, a single currency, some uniformity so that relocation or travel between States was not cumbersome, as well as a shared protection for a national military. The problem isn’t the very limited central government as designed. The problem is the history of Congress members who have, along with the assistance of the enabling POTUS, expanded the power of that central government in order to justify their full time political careers as needed.

Couldn’t disagree more that this Republic has “outlived it’s usefulness”. What has become useless is the seizure of power to expand the federal authority over the states, distorting the original intent of it’s construct.

Should the Republicans make a clean sweep in November, this is what should happen, although it’s probably wishful thinking:

1. All waivers should be declared null and void. The cronies who received them pushed for this law, now they can lust in the fruits of their labors.

2. All members of Congress and their families will be given the government healthcare option and it is to be made retroactive to the time the law was passed that way those who voted for it and are no longer serving can enjoy the fruits of their labors as well. If it’s good enough for the American people, it’s good enough for them. Enough is enough of the DC elitism.

3. And for spite, since the left is all giddy about the new found powers of the government, there should be a $5,000 tax/penalty imposed on all abortions except those involving incest, rape or the mother’s life being at stake. Since next to big government and taxes abortion is one of their three pillars of American society, they can see how unrestrained powers of the government can be used against them as well. Can you imagine the whining and crying?

Comrades, Yes Government Can™ do for/to whomever it wants whatever it wants, whenever it wants, wherever it wants, however it wants, and whyever it wants to do such, so long as the thing it’s doing is disguised as a tax. Any American who doesn’t believe this corrupts absolutely should scratch out the word “citizen” on his birth certificate and write above it “subject” in indelible ink.

An undo of ObamaTaxCare is certainly the first step. A redo of the whole experiment, however, appears to be more in order.

@bob sykes:
I was hip deep in mud made of silver lining when I wrote that, trying to find a way to figure out if there was an ability to challenge Obamacare a second time once the taxes kicked in. Probably not, as per all the comments here and the additional research I have done since then.
Frankly, we have never seen a SCOTUS ruling so convoluted, first justifying it was ripe because it was not a tax, or not the right kind of tax, then fixing it so it was a tax, or the right kind of tax. Yummy.
Clearly, Congress created a monster. But, we all expected SCOTUS to protect us from such monsters.
Apparently, Roberts does not feel that is their job. I do understand the concept that we get the government we deserve. I think the problem is we do not deserve the government we got, so the disconnect is in answering the question whose fault is it.
It’s mine.
People like me kept our mouths shut in polite company while our idiot liberal friends ran off on ignorant, frankly stupid, rants against Bush, the rich, conservatives, global warming, the ozone hole, nuclear power, the spotted owl and a thousand other causes. People like me allowed ignorance to fester, and as a result we got liberalism imbedded into our culture.
People like me regularly return our congressman to office while hating Congress as a whole. We vote for yet another bond issue because it is good for our schools. We stood by and watched while our liberties were eroded away. We stood by, assuming that liberals would finally wake up and realize that you have to judge actions by their results, not by their intentions.
No more.
I will no longer sit in a living room, a bar, an airport, a stadium, wherever, listening to ignorance. I speak up, and I don’t care who I offend. Hence, my new license plates: 4 TPARTY.
Back to the Obamacare ruling; I also have a tendency to respect the opinions of professionals, and grant them some room. Like many of the silver lining crowd, I was trying to give Roberts more room. After reading analysis from Mark Levin, Randy Barnett, and others, I am now pretty sure that Roberts ruling makes no constitutional sense. Pick a side and stay on it long enough to finish the argument. If you don’t, you are just kicking the can down the road for others to pick up.
Roberts, like Congress, is playing kick the can. Unfortunately, it is no longer just the insult of letting our kids pick up the tab. It is now bad enough that we have to pay. Now. There is no road left to kick the can down.

Chip, don’t be so hard on yourself. You’re hardly alone, and better late than never in attending the party. Think small, just as you are, and work your personal sphere for education. It’s genuinely the best we can do, save for voting. But even that is an uphill battle. We have limited say in just a few Congressional representatives, and the State election for POTUS also leaves individual voters with limited impact. So it still comes down to neighbors attempting to reason with, and instill some logic, into other neighbors. The system must be corrected from the bottom up with a smarter constituency that prefers to make it (or break it) on their own, and not live on government handouts.

@MataHarley:
Thx. Don’t get me wrong, though. One of the basic tenants of conservatism is responsibility. I’m not being hard on myself – I am being hard on all conservatives, especially small business owners. People like me who have known for years that government is out to get us. Our friends and employees simply do not understand what it is like to walk around with a target on your back; to walk around with a limp because the government keeps picking our pockets. I own a business in California, for gosh sakes – there is no place in the nation more subject to stupid anti-business regulations and taxes.

In recognition of the ignorance on the left, I am simply stating that my plan of action, one that I hope other conservatives, especially small business owners, will follow: to publically advocate my positions, and to defend other conservatives from attack. There are millions of us. If enough of us assume a more aggressive public posture, we will make enough of a difference to change the path the nation is on.

Electing Romney (my third choice) is a start. Repealing Obamacare is likely not possible without that. Making some states, like Wisconsin, a showcase for how conservative principles can succeed is another step. Maybe in my lifetime we can even fix California.

Good thing that electing Romney is triaged down to Number 3. Anyone who believes Romney will be repealing it isn’t listening to Romney advisor, Norm Coleman. After he came on the talking head circuit, and pointed out that it was unlikely it would be repealed in it’s entirety, the other Romney talking heads had to say they disagreed. Personally, I think it’s a lot of lip flap during pre election, myself.

You mentioned having a go at O’healthcare a second time. But you have to understand this States and NFIB lawsuit is only one of many in the system. This site will give you a round up of cases in the courts. I assume they are up to date, but it should give you an idea that the law is being challenged from lots of different angles. In this particular case, the SCOTUS only addressed the four elements brought before them… they are not allowed to expand that into the law as a total entity. The other attacks range from 1st, 3rd, 4th, 9th, 10th and 14th Amendments, plus Articles I and IV of the Constitution. Each one’s success or failure depends upon the merits of the arguments they make.

Needless to say, the WH legal staff has job security for some time if he’s reelected, and if the law is not addressed by Congress post election.

Fixing California… a place I called home for about 18 years myself. I tend to sadly believe that Mother Nature will “fix” California before the voters and politicians will.