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"Is Obama's Tax On Health Care Constitutional?

Published:

Came in email, excellent points.

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"Is Obama's Tax On Health Care Constitutional?

By ERNEST S. CHRISTIAN AND BETTY JO CHRISTIANPosted 09/25/2009 06:08 PM ET
Source Investors.com 

"Without regard to one's views about the health care legislation promoted by President Obama and currently being redrafted by Sen. Max Baucus, everyone is entitled to expect that the task will be carried out with competence and integrity — also with dignity and a high regard for the intelligence of the American people.

Further, even if everyone agreed that the proposed federal interventions in health care were consistent with "best medical practice" and produced the best possible medical care at the least price, all these federal actions would still have to meet constitutional standards.

The controversial tax that both Obama and Baucus would impose on people who do not buy health insurance appears to be a "direct tax" on persons that is unlawful under Article 1, Section 2, of the Constitution, which requires that "direct Taxes shall be apportioned among the several States ... according to their Numbers . .. ."

In addition, Art. 1, Sec. 9, says: "No capitation, or other direct Tax, shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken ... ."

The only exception to the constitutional prohibition against unapportioned direct taxes is for the federal income tax, which was authorized by the 16th Amendment — but the direct tax on the uninsured is not an income tax.

Sen. Baucus claims that the tax on the uninsured is an "indirect" excise tax — like the federal gasoline tax — that does not have to be apportioned. But Sen. Baucus appears to be in error. An excise tax is a tax on a "thing" (such as a commodity or a license). That is why an excise tax is classified as "indirect."

People who choose not to buy insurance are not things.

They are people. And the tax is imposed directly on them in exactly the same way as a direct income tax, except that in this instance, the tax amount does not depend on the size of the person's income.

This constitutional defect in one of the linchpin elements of the health care legislation was not brought to light for public discussion by either the White House or the chairman of the Senate Finance Committee.

Instead, it was exposed a few days ago by Sen. Orrin Hatch of Utah, one of the few people in this rapidly deteriorating health care drama who are conducting themselves with a high degree of intelligence and regard for the integrity of the Constitution and our basic civic institutions.

President Obama recently got himself into an embarrassing contretemps with a TV personality on a Sunday talk show about whether a tax is a tax.

He insisted that the tax on the uninsured is not a tax at all, but instead a federal fine or penalty imposed on those who fail to do what the government has told them to do.

In opting to rely on the government's power to regulate instead of its power to tax, he has jumped from one constitutional briar patch into another.

The Supreme Court in United States v. Lopez has narrowed the scope of what Washington can do to us under the guise of regulating "commerce ... among the several states ... ."

A fine or penalty on the uninsured could pass muster only if a person's individual choice not to buy insurance has a "substantial effect on commerce."

It is not sufficient that forcing people to buy health insurance might be good for them or help the economy or the public fisc.

Let us all hope that that the court stands fast — because if Barack Obama can make us buy a designated insurance policy, why can't he make us see designated doctors, submit to designated treatments, send our children to designated schools, force us to live in designated neighborhoods, give our money to designated charities (such as Acorn) and do all kinds of other designated things?

In the past, President Obama is reported to have expressed frustration with the Constitution, classifying it as a negative document that mostly says what government can't do rather than concentrating on what government can do to make things better.

He is also said to have claimed power and prerogatives because "I won," referring to the fact that he got more votes last November than his opponent — as if America were a prize won in a game or raffle that he can now do with as he wishes.

Not so, Mr. President, not so."

• Ernest S. Christian is a tax lawyer who was deputy assistant secretary of the Treasury in the Ford administration.

• Betty Jo Christian, who served on the former Interstate Commerce Commission, is an appellate lawyer who has argued "commerce clause" and other constitutional cases before the Supreme Court.


http://www.investors.com/NewsAndAnalysis/Article.aspx?id=507127&Ntt=

Entry #1,437

Comments

1.
mrlottery15Comment by mrlottery15 - September 27, 2009, 5:49 pm
I personally think that the penalty is no different than that of car insurance. It is just a way to insure that everyone has it. I really think that part of the cost for the insurance for those that cannot afford it should be taken from the profit of the insurance company. There is no doubt that the consumers are being over charged. If something is not done the consumers will continue to be ripped off. Higher and higher cost and less and less benefits. Just ask someone who has recently retired how many of their benefits have been cut suice they retired. Those that did not vote for Obama need to get over the fact that we have an Afro-American president for the next four years. He is not trying to make this a Socialist Society but instead one that is accounted to all of the people and to just the majority group. Why was you not concern about all of the illegal things that was being doing under our last administrations. They were only concern about the rich and powerful. At least you now have a voice. We have had 43 white presidents and one non-white. He has only been in office 9 months, let's give the man a chance to do the right thing. Why is the black man always looked upom with suspicion? Even when he has proven himself. I know why but it would take me a whole day to explain, because I would have to go all the way back to Africa doing the slave trade to explain in such a way that you would understand. I do not have the time to do that right nowand not in this particular setting. Anyway this my truth! What is yours? mrlottery15
2.
MADDOG10Comment by MADDOG10 - September 27, 2009, 6:47 pm
Regardless whether or not he's the first afro american to be president has nothing to do with this health care bill. He's trying to tell me and everyone else who might not have insurance, that he's going to impose a fine on everyone who does'nt have it. Bull.....!
Who is "he" to tell me what I can and cannot do? It's my choice or anyone else's " NOT HIS ".. PERIOD.
And certainly not any of his flunkies are going to tell me what to do. I think you've been smoking to many Banana's to see how far he's trying to push this country to the Left...
He doesn't like the constitution, so now he wants to change it???? because it not his belief?? Then what the Samhill is he doing as a President. He has about as much common sense as my neighbors gelded Donkey or Jack Ass, which ever way you see it.......!!
3.
konaneComment by konane - September 27, 2009, 7:33 pm
Thanks Mrlottery! No individual is forced to own a car which mandates the purchase of insurance ..... therefore automobile insurance is not mandatory for all persons. Additionally automobile insurance is a state requirement, not federal as health care would become.

I didn't see race discussed so you're attempting to rebut something not contained in the article. If you'd like to discuss your concerns with the author their name and credentials are at the end of the article, link furnished so shouldn't be terribly difficult to locate them.

Good luck with your retirement.
4.
konaneComment by konane - September 27, 2009, 8:18 pm
Thanks Maddog! I don't want something forced down my throat either. Health care provides bureaucrats a guaranteed withdrawal method tied directly to your bank account to pay for it, fines or imprisonment if you refuse to comply. It gives them another slush to pay banksters so the party never ends ..... for them anyway.

At the rate we're going the only form of government this administration would be happy with is a kingdom big enough to hold its ever expanding belief it can do anything it chooses.

The US Constitution was designed to put firm constraints and boundaries on just such action by any branch of government which is why Obama doesn't like it.
5.
jarasanComment by jarasan - September 27, 2009, 8:23 pm
I have one hypothetical question that I haven't heard addressed, and I believe it should be asked and asked often. The question is: How on earth are the Feds. going to make everybody participate in paying "their" share? Of course you'll still have many receiving care but not "paying into it".   So right off the top of my head there at least 16-20 Million non-contributors operating under the radar in the USAmerica. Are the feds going to fine them or send them to jail for not "paying in"? The only way to enforce this, would be with mandatory valid social security# for any medical care. No SS# no band-aids.
6.
konaneComment by konane - September 27, 2009, 8:51 pm
Thanks Jarasan! Good question, but doesn't the law which
states when someone is hurt they can't be denied medical care supersede any requirement for enrollment in any plan or presentation of SSN# as validation of enrollment? Those 16-20M non-contributors already have access to medical care under laws already on the books so why pay? Feds will handle those exactly as they've handled the illegals situation and do nothing ...... so the effective price goes up for the remaining payers.
7.
JAP69Comment by JAP69 - September 27, 2009, 8:53 pm
Under the Baucus bill for no enrollment in a plan.
http://www.foxnews.com/politics/2009/09/26/baucus-mandate-penalty-lead-prison-congressional-analysts-say/
8.
konaneComment by konane - September 27, 2009, 9:17 pm
Thanks JAP! Yep, read that. $25,000 fine and 1 year in jail max penalty. Wonder if it would constitute a felony? Domestic terrorist list if we oppose their ideas.

Which Twilight Zone did we land in this time?

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