In the Wall Street Journal, lawyers David R. Rivkin and Lee A. Casey write:
Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’s “Uniformity Clause” (Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.
Read more: The Opening for a Fresh ObamaCare Challenge.
Via Jonathan Adler: The Volokh Conspiracy » The Uniformity Clause – Another ObamaCare Challenge?.
Constitutional scholar and former law professor Rob Natelson, currently of the Independence Institute, addressed the Supreme Court’s ruling on ObamaCare at a June 29 rally in Denver:
In this related blog post Natelson describes why mandatory insurance is not a tax. Second, “The court failed to recognize that even if the penalty were a tax it would be a “direct” tax, and therefore subject to apportionment among the states.”
Read more: Defects in the Supremes’ holding that the Obamacare penalty is a “tax”.
But wait, there’s more! Rob also sat down w/ Justin Longo for an iVoices podcast: “Why ObamaCare’s Penalty is Not a Tax” [mp3]
Elaborating on whether mandatory insurance is a direct tax, Ilya Somin writes:
It’s worth noting that Chief Justice Roberts’ opinion only briefly discusses the crucial question of whether the mandate – if it is a tax at all – turns out to be an unconstitutional “direct tax.” The four justice dissent by Alito, Kennedy, Scalia and Thomas properly takes him to task for this. …
At National Review, Dave Kopel of the Independence Institute writes:
The weakest part of Chief Justice Roberts’s opinion is his assertion that the individual mandate merely “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” To the contrary, earning income or buying a product is an activity that can constitutionally be subject to an “excise” tax. There is literally no constitutional or tax-law precedent for the notion that an individual can be subject to an excise tax merely for choosing not to buy a product.
Presidents and members of Congress take oaths to uphold the Constitution, and some of them take that oath seriously. Faithful to their oaths, a new Congress and a new president can repeal the individual mandate not only because it is bad policy, but also because they rightly consider it unconstitutional.
Read his whole post: What’s Next for the Opposition? – NRO Symposium – National Review Online.
Jon Caldara is joined by Dave Kopel, constitutional law professor and attorney of record for two (count ‘em, two) Independence Institute amicus briefs in the Obamacare Supreme Court case, to dissect and explain the court’s rulings on the controversial health care law.
For more of Kopel’s response, see: Dave Kopel Responds to ObamaCare Decision
In a 5-to-4 decision, the Supreme Court upheld the Affordable Care Act by ruling that the individual mandate is legal under Congress’ power of taxation, while giving states more flexibility in deciding whether to participate in the law’s Medicaid expansion.
What does today’s decision mean for the implementation of the law and the political effort to repeal it?
Nick Gillespie sat down with Reason Magazine Senior Editor Peter Suderman to discuss today’s ruling and its implications for health care policy.
via Is There a Silver Lining to the Supreme Court’s Obamacare Decision? Q&A with Reason Magazine’s Peter Suderman – Hit & Run : Reason.com.
The July print edition of Reason magazine includes “Wonky Justice,” by Peter Suderman, that summarizes the “dubious policy assumptions behind ObamaCare’s legal defense.” Here’s a quick summary:
ObamaCare’s legal defense relies as much on policy arguments—about the nature of uncompensated medical care, the role of Medicaid, and the interaction of the law’s various provisions—as it does on constitutional reasoning. But the policy case is just as dubious as the constitutional one.
Suderman concludes, based on the Administration’s statements, that the Supreme Court, if it strikes down any part of ObamaCare, should strike down the whole thing.
Read the whole article.
Grace-Marie Turner writes:
The health sector is in a state of semi-paralysis over the fate of Obamacare.
While the Supreme Court’s decision is likely a month away … Congress, state governments, and businesses across the country are puzzling over “what if” alternatives to try to be ready when the decision is issued. Here are the three most likely options:
1) If the Court upholds the whole law, then the battles would move to the ballot box while implementation of the sweeping health overhaul charges forward. …
2) If the Court strikes part of law — the individual mandate and related insurance provisions — the battle over “fixes” will be instantly engaged. …
3) If the Court strikes the whole law, activist groups that have been the strongest supporters of Obamacare will instantly take to the airwaves and possibly the streets. …
Read the whole article: Three ‘What-if’ Scenarios for Obamacare – By Grace-Marie Turner – Critical Condition – National Review Online.
Thomas Sowell writes:
[T]he Supreme Court can declare acts of Congress null and void if these acts violate the Constitution.
They have been doing so for more than two centuries. It is the foundation of American constitutional law. There is no way that Barack Obama has never heard of it or really believes it to be “unprecedented” after two centuries of countless precedents.
In short, he is simply lying.
Now there are different kinds of liars. If we must have lying Presidents of the United States, I prefer that they be like Richard Nixon. You could just look at him and tell that he was lying.
On accusations of judicial activism, Sowell writes:
Second, the “judicial activism” that conservatives have complained about was judges making rulings based on how they felt personally about the issue at hand, rather than about what the Constitution of the United States said.
In recent years, great efforts have been made to redefine “judicial activism” in terms of judges declaring laws unconstitutional, instead of “deferring” to Congress or other government institutions. …
As for Supreme Court justices being unelected, that has been true since the Constitution was created. That was done deliberately, so that they could render their judgments without fear of political repercussions.
Read the whole article: RealClearPolitics – Political Word Games.
The Colorado Independent reports:
The Independence Institute, a Denver-based free-market think tank that has led the charge in Colorado against the Affordable Care Act, has filed what it is calling two “potentially game changing” briefs with the U.S. Supreme Court. The court this week is hearing arguments on the constitutionality of the two-year-old law. …
Arguments around the law made in lower courts have centered on the Constitution’s Commerce Clause, which grants Congress the power to regulate business conducted across state lines. There is strong precedent supporting the legitimacy of the law from that standpoint and, in his main, first brief (pdf), Kopel seeks to shift the argument away from the Commerce Clause.
“What people… miss is that the Supreme Court itself tells us that issues like this– about purely intrastate activities such as buying health insurance– are really decided under the Necessary and Proper Clause,” Kopel said in a release, citing the clause that grants Congress the root authority to pass laws “necessary and proper” for exercising its other powers.
“There is new research just published by one of the top academic publishers in the world that shows the Necessary and Proper Clause was never meant to give the Congress the power to force you to buy something simply because the purchase would help ‘commerce’,” Kopel said. “The history of the Necessary and Proper Clause is very clear on that point. It’s just a matter of getting that history before the Court.”
Kopel’s second brief (pdf) concerns the expansion of Medicaid coverage guaranteed by the Affordable Care Act. Kopel said the law allows “federal bureaucrats, virtually at their uncontrolled whim, to bankrupt a state.”
He believes the law goes against a line of cases extending from as early as 1798, the latest being Alden v. Maine, was written in 1999 by Justice Anthony Kennedy, a likely key swing vote in the Affordable Care Act case.
Read the whole article Independence Institute on Obamacare: It’s not about the Commerce Clause | The Colorado Independent.
Read Dave Kopel’s comments on the March 26 Supreme Court hearings at JonCaldara.com.
(via Ari Armstrong)