Home > Uncategorized > A thorough analysis of the unconstitutionality of the “mandate” in Obamacare.

A thorough analysis of the unconstitutionality of the “mandate” in Obamacare.

From Randy E. Barnett:

The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an “individual responsibility requirement” that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: “The individual responsibility requirement provided for in this section,” the law says, “. . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” Paragraph (2) then begins: “The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.”

In this way, the statute speciously tries to convert inactivity into the “activity” of making a “decision.” By this reasoning, your “decision” not to take a job, not to sell your house, or not to buy a Chevrolet is an “activity that is commercial and economic in nature” that can be mandated by Congress.

It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic “activity” that substantially affects interstate commerce. But the Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.

Indeed, it is – that is why the miscreants who defend the “mandate” have switched their argument from Congress being able to demand people by insurance due to the Commerce Clause to saying that it is because of Congress’ taxing power. That argument is also a no-go for a simple reason: the purpose of the fine is not to raise revenue, but to punish people for not buying insurance. Mr. Barnett continues:

Congress simply did not enact the personal insurance mandate pursuant to its tax powers. To the contrary, the statute expressly says the mandate “regulates activity that is commercial and economic in nature.” It never mentions the tax power and none of its eight findings mention raising any revenue with the penalty.

Moreover, while inserting the mandate into the Internal Revenue Code, Congress then expressly severed the penalty from the normal enforcement mechanisms of the tax code. The failure to pay the penalty “shall not be subject to any criminal prosecution or penalty with respect to such failure.” Nor shall the IRS “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section,” or “levy on any such property with respect to such failure.”

In short, the “penalty” is explicitly justified as a penalty to enforce a regulation of economic activity and not as a tax. There is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress.

There’s an old saying: when the law beats out the facts, use the law. When the facts beat out the law, use the facts. When you have neither facts nor the law, make it up as you go along. Well, I may not be stating that accurately, but Obamacare supporters are surely making everything up in order to justify the lawfulness of Obamacare.

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