Mr. Hall nails it. Good article (Thanks Jane for Sending This To Me):
By Jon N. Hall
The Supreme Court's salvage operation on ObamaCare may have opened up a can of worms. At The Daily Paul, the issue of changing the penalty (for noncompliance with the individual mandate) into a tax (for not owning health insurance) was summed up like this:
According to the United States Constitution, all tax bills must originate in the House of Representatives. This law originated in the Senate, because at the time the Democrats were selling it as a purchase -- not a tax. Since the Supreme Court has ruled that the law is indeed based on a tax increase, it would have had to be initiated as a bill in the House of Representatives.
Consequently, the Patient Protection and Affordable Care Law is unconstitutional on a different criteria than the ones considered by the Supreme Court in this latest landmark decision. By calling the individual mandate unconstitutional but allowing the law as a federal program to be funded by new taxes, Justice Roberts essentially nullified the law.
Actually, the House did originate a health care bill, but it was abandoned. The bill that became law was a "shell bill" out of the Senate. That the Court's ruling created an Origination Clause issue is debatable. (Here are three opinions on the matter from Breitbart, Hot Air, and Newsmax.)
The Court's dissenters in NFIB v. Sebelius addressed the issue of "judicial tax-writing" in Section II, "The Taxing Power" (PDF-pages 142-152). Page 150 (italics added):
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 "defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue." United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America's Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
But the Court did not actually "rewrite" ObamaCare; the judiciary doesn't do that sort of thing. Indeed, the text of ObamaCare is still the same as it was on May 1, 2010, when last amended. Therefore, we now have a statute in the U.S. Code -- Public Law 111 - 148 -- that the Court has ruled un-constitutional on two counts (the mandate and the Medicaid expansion). And not only that, but the Court's re-rationalization of ObamaCare by converting it into a tax law may have created another constitutional problem involving the Origination Clause. So, in this nation of laws, not men, we have an illegal law on the books.
But that's not unusual. When the Court finds a law unconstitutional, the law isn't automatically stricken from the U.S. Code.
Read the rest of the article at American Thinker
The Supreme Court's salvage operation on ObamaCare may have opened up a can of worms. At The Daily Paul, the issue of changing the penalty (for noncompliance with the individual mandate) into a tax (for not owning health insurance) was summed up like this:
According to the United States Constitution, all tax bills must originate in the House of Representatives. This law originated in the Senate, because at the time the Democrats were selling it as a purchase -- not a tax. Since the Supreme Court has ruled that the law is indeed based on a tax increase, it would have had to be initiated as a bill in the House of Representatives.
Consequently, the Patient Protection and Affordable Care Law is unconstitutional on a different criteria than the ones considered by the Supreme Court in this latest landmark decision. By calling the individual mandate unconstitutional but allowing the law as a federal program to be funded by new taxes, Justice Roberts essentially nullified the law.
Actually, the House did originate a health care bill, but it was abandoned. The bill that became law was a "shell bill" out of the Senate. That the Court's ruling created an Origination Clause issue is debatable. (Here are three opinions on the matter from Breitbart, Hot Air, and Newsmax.)
The Court's dissenters in NFIB v. Sebelius addressed the issue of "judicial tax-writing" in Section II, "The Taxing Power" (PDF-pages 142-152). Page 150 (italics added):
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 "defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue." United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America's Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
But the Court did not actually "rewrite" ObamaCare; the judiciary doesn't do that sort of thing. Indeed, the text of ObamaCare is still the same as it was on May 1, 2010, when last amended. Therefore, we now have a statute in the U.S. Code -- Public Law 111 - 148 -- that the Court has ruled un-constitutional on two counts (the mandate and the Medicaid expansion). And not only that, but the Court's re-rationalization of ObamaCare by converting it into a tax law may have created another constitutional problem involving the Origination Clause. So, in this nation of laws, not men, we have an illegal law on the books.
But that's not unusual. When the Court finds a law unconstitutional, the law isn't automatically stricken from the U.S. Code.
Read the rest of the article at American Thinker
-- Political Pistachio Conservative News and Commentary
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