I came across an interesting blog post today regarding "Obamacare" and the individual mandate. The author claims the mandate under the constitution is perfectly legal because it is simply a tax.
http://blog.ometer.com/2011/04/16/individual-mandate-and-the-power-to-tax/
There’s a claim in these cases that the government has never required people to actively buy a certain product. However, at least the enforcement of this requirement, i.e. a tax savings if you do buy, is precisely equivalent to all the credits and deductions you can already get for buying various things. Go into TurboTax and look at the credits and deductions available. You are “required” to buy all of that in exactly the same sense that you are required to buy health insurance under the new law — at least as far as enforcement goes. The punishment is the same, you pay higher taxes if you don’t buy.
Does this guy have a point?
No, but it does not matter. What is Constitutional and Unconstitutional are up to 9 older people in Washington who wear Muumuus to work and speak in a strange dialect of English that contains quite a few words from English and several different European languages that have radically different meanings as compared to the normal usages.
This is an old argument that the Obama adminstration tried at least as long as a year ago. And it looks as though it's resurfaced this year with some ass-hat professor claiming the federal government could force you to buy broccoli if the politicians wanted. I'm not kidding.
I've forgotten all the details of the refutation, but basically it is not a tax as mentioned in the Constitution because it is a mandate of a purchase from a third party. This is completely different from saying the Congress can levy and collect taxes. The Constituiton does not give the federal governmentt the authority to go through some third party nor to delegate its expressed powers to some other entity. Same issue with the Federal Reserve.
I have the feeling the law is unconstitutional, but I am still not convinced. Congress does have the power to tax. Is a tax on inaction somehow unconstitutional? If so, if the individual mandate provided a tax credit for those who bought insurance, the individual mandate portion would be allowable.
Ahh, here it is. The distinction between tax and penalty.
http://jurist.org/forum/2011/05/ilya-somin-mandate-is-unconstitutional.php
As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that "[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government," while a penalty is "an exaction imposed by statute as punishment for an unlawful act" or - as in the case of the individual mandate - an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.
Also, even if it were a tax, the purpose of the penalty is to punish people who do not comply with a federal mandate. The constitution states in the general welfare clause that taxes can only be levied with the intention of providing for the general welfare, which the tax does not.
He's absolutely right! But he proves much more than I'm sure he means to. I especially like his connection of credits with the healthcare mandate in which you are fined for non-compliance. Taxes can be themselves thought of as a kind of fee that you pay to stay out of prison. Each year, you're going to prison... unless you pay the "stay-out-of-prison money", aka taxes.
Clayton -
You are also forgetting the Commerce Clause which would logically require commerce. The Federal Government has no right to regulate NON-COMMERCE or a person who refuses to engage in commerce. For example, the US governemnt can regulate a producer of wheat (Interstate and intrastate(Which is sickly wrong)) because the producer is conducting commerce by supplying some other person or themself (Again wrong) with wheat. But the US Government can not regulate the transaction if the other person refuses to engage in the transaction or in any agreement for the supplier to supply wheat. It is sick nonsense.
With the interstate commerce and general welfare clauses, many people wnat to grant nigh-unlimited power to the federal government. However, notice that the general welfare is preceded by and is actually intimately connected with the defence of the United States. It refers to the defence and general welfare of the United States. Remember, the "United States" exists as an entity derived from the states. It is separate in some functions but not in empowerment and certainly not in accountability. Congress simply has the authority to provide for the general welfare of the United States. This does not mean Congress can mandate each individual to purchase a product because it's provides for the "general welfare." This is silly.
I believe it was FDR who wanted to penalize farmers for not contributing to the market because of their subsistence farming. They cited the interstate commerce clause because they were affecting interstate commerce by not buying or selling in the market. Of course, this is absurd, and if I remember correctly it was struck down.
http://www.lewrockwell.com/cooper/cooper16.1.html
The interstate commerce clause was embedded simply to facilitate commerce across state lines by making it easier and more uniform. Onerous regulation subverts this idea.
It is utterly unconstitutional. End of story. If the mandate is constitutional, then anything is. Of course, according to government today, everything is constitutional. If the government can force you to buy a certain product, then what can it not do? Obama's nonsensical argument was that most states force people to buy car insurance, so what's the difference? First, although the states have the legal right to force people to buy health insurance, they do not have the moral right to do so. Second, the Constitution strictly limits the federal government to the seventeen enumerated powers. None of those in any way grant the federal government to force people to buy health insurance.