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Another Constitutional Claim Against the Individual Mandate

Posted at 1:30 p.m. on Dec. 6, 2012

The Supreme Court found the individual mandate in President Obama’s health care reform law constitutional as an exercise of Congress’s tax power. David Rivkin and Lee Casey argue that if the mandate is a tax, it is unconstitutional as well.

“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.’”

“ObamaCare provides that low-income taxpayers…can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program… But that program will not now exist in every state because…states can opt out. The actual tax burden will not be geographically uniform as the court’s precedents require.”

4comments
Health, Judiciary

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  • Lorehead

    I assume that the courts would just say that the Supreme Court has already ruled on that issue, rather than hear each new, contradictory argument to repeal Obamacare. My first reaction (I am not a lawyer) is that if a state decides to harm its citizens by depriving them of an option, that can hardly nullify federal law. I don’t see how the federal income tax could possibly meet this definition of “geographically uniform,” given how it lets people deduct very nonuniform state taxes. And fundamentally, it’s whining that John Roberts’ decision was wrong and should change his mind either about whether states can opt out or whether the mandate is a legal tax. But the Supreme Court already decided.

    But why do they want to, anyway? Other than their irrational hatred of everything Barack Obama represents to them, I mean. None of these people has any objection to the government forcing individuals to buy, for example, car insurance, or outlawing inactivity, such as by making it illegal not to educate your child or not to register for the draft. It sometimes does and sometimes doesn’t matter to them whether it’s a state government or the federal government that passed the mandate, but the argument here is that the law gives states too much flexibility, so it’s explicitly anti–States’ Rights. Or at most, it’s an argument that there’s some legal technicality that will let Republicans get their way, not that there’s any principle at stake.

    • FreeStateLarry

      There’s something of a legal idiom that I picked up from a former Constitutional Law prof of mine that goes something like this: Any law is subject to going through the judicial labyrinth, but most of the laws that do are the ones that enough people hate and spend all their time throwing things at until something sticks enough to send it through the court system.

      She said it ten times more quickly and a hundred times more eloquently than I can, but the principle is the same. Her example was the decades-long battle over civil rights legislation, as Obamacare was in its embryonic committee stages while I was in the class.

      Also, your point about geographical uniformity is true on more than one level. First, it is in the hands of states to now decide on the Medicaid expansion…the law treats all states equally under the assumption that they will accept the expansion. Second, the uniformity clause is very ill-defined and as far as I know the history of cases that seek to utilize it render it extremely difficult to pin down. It’s highly unlikely any serious court would hear this challenge.

      • billbear1961

        In normal circumstances, I wouldn’t be particularly worried.

        But we’ve got to take into account the many vicious and insanely greedy corporate fascists now on the courts (thanks to a corrupt GOP), who don’t give a GODDAMN about the law, the Constitution or the General Welfare, and whose ONLY concern
        is to reduce this nation to a state of absolute corporate slavery—by destroying ANYTHING that stands in the way of that goal, which especially includes good government, almost the only entity strong enough to counter a complete corporate takeover of our world and lives.

        We can no longer take good faith for granted (if we ever could).

        These BASTARDS are the ENEMY WITHIN, and we forget that at our DEADLY PERIL.

  • JEngdahlJ

    Adverse
    selection may still be a challenge. Read here:
    http://www.healthcaretownhall.com/?p=5638

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