Hobby Lobby and the Fall Campaigns

By “rewriting” ObamaCare in NFIB v. Sebelius, the Supreme Court created a strange new twist on federal taxation: they imposed a surtax on the poor. The Court did that by redefining the penalty (for not having health insurance) as a tax. Usually, government levies surtaxes at the other end, on the wealthy, such as in 1993 when Congress levied 3.6 percent surtax on the highest incomes. But with ObamaCare, an individual who has even the smallest of income tax liabilities and who hasn’t purchased health insurancecan owe an additional tax as of 2014.

The smallest individual income tax liability that the IRS will fool with is $1. The smallest income in 2013 that would produce a $1 tax bill was $10,005. That $10,005 income could have been earned by an unmarried person who was under age 25 and therefore ineligible for the Earned Income Credit. After such a person subtracted his $10K personal exemption, he would be left with $5 of taxable income, which would leave him with a tax bill of $1.

Unmarried individuals who do not possess a disability are not eligible for Medicaid. So an unmarried individual under age 25 with a poverty income who hasn’t purchased health insurance will be hit by the ObamaCare surtax if he has no disabilities.

In 2014, the ObamaCare surtax for poverty-income individuals will be $95, an amount 19 times larger than the lowest possible taxable income of $5. In 2016, the surtax will rise to $695 for individuals, and $2,085 for families.That means that our unmarried taxpayer will see his effective tax rate rise from less than 0.01 percent in 2013 to more than 6.956 percent in 2016. (There’s your progressive taxation for you.)

It’s doubtful that that’s what the high court really had in mind: a new tax on those whom Leona Helmsley affectionately called “the little people.”

The surgery done on ObamaCare in NFIB v. Sebelius leaves America with a perplexing question: If the Constitution does not give Congress the power to command Americans to buy health insurance, then how can the Constitution allow Congress to tax Americans for not having done so?

Just as they hitched us to ObamaCare in NFIB, the Court could also unhitch us with their rulings on the cases headed their way. The next case to be ruled on, the Hobby Lobby case, was heard in March and is due to be decided in June. Those who think this case is too slender a reed to hang hopes on should read ”How the ACA Could Collapse,” a terrific little essay by Amity Shlaes at National Review. Ms. Shlaes chronicles a New Deal case that pitted a Jewish kosher butchery against FDR’s powerful National Recovery Administration. The Court was rather dismissive, even derisive, of the government’s defense:

When the Schechters’ lawyer, that same Heller, showed how ludicrous the regulations for chicken selection were, the justices and the whole room laughed. The same kind of slapstick humor that had worked against the butchers before now worked for them. Even the justices got in on the wordplay, writing in their 9–0 finding against the NRA that the Schechter case showed that not only the poultry code but also the entire NRA corpus must collapse, “bone and sinew.”

The stunning defeat in Schechter Poultry Corp. v. United States led to Roosevelt’s attempt to pack the Court. We’re seeing similar attempts with the federal judiciary even now.

Just as in Schechter, the Court should find for the plaintiffs in Hobby Lobby; First Amendment religious liberty cannot be sacrificed on the altar of ObamaCare.

Inasmuch as the outcome of Hobby Lobby will be known before November, one wonders how a ruling that struck down ObamaCare in its entirety would affect the upcoming elections. Perhaps it would be better for the cause of conservatism if the Court found the mandate (to provide certain types of birth control) unconstitutional but let the law stand, as they did in NFIB.

However, if the Court in June were to strike down ObamaCare in its entirety, it would change the dynamics of the midterm elections,and deprive some conservatives of a big issue in their campaigns. Indeed, Democrats running for reelection would rejoice if the Court relieved them of their ObamaCare albatross. Conservatives, libertarians, Tea Partiers, and all “right-wingers” should therefore plan their campaigns around more than just replacing ObamaCare, regardless of the outcome in Hobby Lobby.

Such political considerations are not within the purview of the Court. But striking down the entire ACA would also strike down the Court’s surtax, which some justices may regret. Taxation without representation has never been very popular in America.

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

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