ObamaCare: The Most Recent in a Parade of Horribles

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.  For instance, in Ashcroft v. Free Speech Coalition (2002), the Court found two sections concerning "virtual" child pornography, §§2256(8)(B) and 2256(8)(D), in the Child Pornography Prevention Act of 1996 unconstitutional.  Yet those two sections remain in the law (see page 7).  To strike from the U.S. Code an entire act or even a provision of an act that has been found unconstitutional requires another act of Congress.  And other than on the two aforementioned counts, ObamaCare still stands.

Still, it's rather untidy to have an illegal law on the books.  ObamaCare really needs to be further amended and have all that unfortunate language about the Commerce Clause (and how it allows Congress to command folks to buy health insurance) struck out.  That might -- I say, might -- get more journalists in the old media to correctly report what happened in NFIB v. Sebelius.  Just this Sunday morning in The Kansas City Star in a front-page story above the fold, Alan Bavley and Eric Adler write: "While the court left intact the law's demand that many people buy health insurance or face financial penalties, it overturned the mandate that states expand their Medicaid programs."  Those boys must not have read the ruling.  But such misreporting abounds.

It's unlikely that Congress will get around to "fixing" the text of ObamaCare by amendment when one chamber wants to repeal the whole thing and the other chamber never thought there was anything unconstitutional in it in the first place.  In any event, ObamaCare's constitutional problems may be only beginning.  E.g., in a fine little article at PJ Media, Herbert London of the Hudson Institute writes about Equal Protection Clause issues concerning ObamaCare's religious exemptions for Muslims.  And Christians are already riled up over the contraception mandate.

By April of 2002, the Court had found 158 Acts of Congress unconstitutional, either in whole or in part.  This parade of horribles includes the Missouri Compromise.  Even so, our constitutional law professor president said this: "Ultimately I am confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

The individual mandate -- referred to in the Affordable Care Act as "the requirement to maintain minimum essential coverage" (see page 143) -- was never a serious idea.  Indeed, it seems that one never really had to pay the penalty for not owning health insurance.  Although the mandate was sold as a way to correct the problem of "free riders," it only exacerbates that problem.  That's because of the 16 million new "free riders" who will not be buying health insurance nor be paying the tax because they will be getting "free" Medicaid.

The mandate now seems to have been a deliberate ruse designed to give ObamaCare a patina of financial seriousness.  But it was never adequate to pay for the real funding shortfall caused by all the new Medicaid "free riders."  So while the Tea Party was distracted with the unconstitutional power-grab of the mandate, all the even more harmful stuff received less attention.

However, the permanent underclass that Democrats have been so busy creating shouldn't be too thrilled with ObamaCare.  They may think they can now get health care, but that won't be the case if doctors refuse to take Medicaid patients.  Perhaps the next mandate in ObamaLand will command doctors to treat whomever President Obama tells them to treat.  That, or pay a penalty, or a tax, or...whatever.

Jon N. Hall is a programmer/analyst from Kansas City.

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