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Issue & Argument; HC Mandate = Tax?

June 21, 2010

On the Obama Administration Arguing in Court That the Health Care Individual Mandate Is a Tax…


In order to protect the new national Health Care law from legal challenges, the Obama administration has been forced to argue that the individual mandate represents a tax — even though Obama himself argued the exact opposite while campaigning to pass the legislation.

The HC dispute revolves around the individual mandate of the health care plan that states every U.S. citizen would have to have health insurance. The Thomas More Law Center believes this violates the commerce clause of the Constitution. Actually, the argument is not that the law violates the commerce clause. The argument is that the law exceeds the power granted to the government in the Commerce Clause.


You mean Barry lied?

No, he mis-spoke, wait, no, you mis-understood him, no, wait, let me get back to you!

A good lawyer would call Obama as a witness and demand, “Were you lying then, or are you lying now?”

The law invoked the commerce clause as the specific Constitutional authority for the mandates. It will be difficult to morph this into a ‘tax’ because unlike Medicare or SS it lacks uniformity and would vary depending on which state you live in.

It’s not a Constitutional tax. Constitutionally, it must be one of the following: 1) a uniform excise tax (a tax on transactions at a uniform rate,) 2) an income tax or else 3) a “direct tax” that must be equally apportioned among the States. It’s clearly not any of those…

They can’t use the law they wrote to create a TAX. If they are going to call it a tax, they have to TREAT it like a tax. How does commanding everyone in the nation to buy from a private insurer constitute a tax? Taxes are paid to the government and its agencies not to private companies. They are essentially arguing that the insurance companies, which they are mandating we purchase from, are now de-facto arms of the government.Taxes are paid to the government – not insurers. Its not a tax, just because the IRS enforces it.

Also, as stated, there would be no uniformity to each state, from each provider, and group discount or even age category. They are all different, so Commerce Clause cannot possibly be relevant besides all that 1st, 4th, 5th, 9th, 10th, 14th amendment stuff.

The 16th says: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

My guess is that a fee based on the existence of an insurance policy would be very hard to characterize as a tax on income. The 16th Amendment is hardly the only constitutional source of power to tax. There is still Article I, section 8, clause 1.

What about the Commerce Clause?

The Commerce Clause is listed in the U.S. Constitution and gives Congress the power to regulate interstate commerce. Just how expansive those rights are is an argument in the battle over the health care law. But, I’m optimistic about this not passing muster with the Commerce Clause. To tax *inactivity* would essentially give the Legislative Branch UNLIMITED power. If the courts expand the Commerce Clause to that extent, the Republic is dead.

Democrats are trying to take cover, predictably, under the Interstate Commerce Clause.  Long a favorite of the radical left, the clause has been bastardized to create a mechanism by which the federal government can claim jurisdiction over virtually any issue or individual. Just so you know, there is no “good and welfare clause” or the “everything clause” in the constitution.

How can they possibly be arguing a ‘tax’ in Court when they argued otherwise when campaigning for the HC Bill?

Ok, so Obama and the Dem’s lied.

They are following FDR’s playbook in defending Social Security. Publicly FDR was saying it was simply a modest retirement pension plan. But in court FDR’s lawyers were arguing it was a tax. The Supreme Court upheld the constitutionality of Social Security by finding that it was a tax, and specifically that it was an “excise,” not an income tax. Steward Machine Co. v. Davis.

Obama’s lawyers will do like FDR did, they will say that they are not forcing anyone ‘away from inactivity’, they are simply setting ‘minimum federal guidelines for health insurance’. It’s on pages 231 and 232 of the legislation.

  • They are going to tax employers that currently provide health insurance that doesn’t meet ‘minimum standards’.
  • They are going to tax business individuals in the same manner.
  • They are going to give a tax credit to those that demonstrate they carry adequate insurance.
  • They are going to penalize those that don’t carry adequate insurance.

Because of the 16th Amendment, the government can tax ‘income’ from whatever source without regard to apportionment. That means they can tax you for whatever reason they want; they don’t need a reason. If they wrap the tax in some sort of healthcare context, then so be it, they can do it.

We have to get rid of the 16th. Here’s how.

This is a heads we-win/tails-they-lose situation – it’s not a valid exercise of the Commerce Clause power, and it’s not a valid tax because it’s an un-apportioned direct tax.

But, I thought ‘all’ tax bills had to originate in the House?

They do. All bills for raising Revenue shall originate in the House of Representatives.

There were 2 bills: the Senate-passed bill and a “reconciliation” bill that made “fixes” to that monstrosity because if the House had made those fixes to the Senate-passed bill, it would have had to go back to the Senate and passed with 60 votes to surmount a filibuster. But the reconciliation bill wasn’t subject to filibuster, hence House made the necessary changes and Senate passed that 2nd bill with under 60 votes.

The way they end-rounded the requirement that revenue bills be initiated in the House is that the Senate took up an innocuous House bill that had been approved previously on a completely different issue, but that had some tax provision in it. They then “amended” this by deleting literally all the bill’s language and then substituting the Senate language as an amendment. Thus, technically, the final bill was a revenue bill that “originated” in the House. That the whole process entirely violated the spirit of that constitutional restriction appears to have bothered no one on the Democrat side of the aisle.


What they say politically such as ‘fee’ is completely different than what Obama’s lawyers say in court. Rush Limbaugh had a segment shortly after March 21 in which he covered the history of the court battles to defend Social Security. Publicly they were calling it a retirement pension plan and not a tax, but in court they were calling it a tax program.

It’s important to understand this point, public versus legal statements are not the same. Once again their argument is that no one is being ‘forced’, there is no ‘mandate’ to purchase health insurance. There are ‘minimal federal guidelines’ that describe ‘adequate’ health insurance, and a tax credit to those that obtain such.

That’s their argument.

Obamacare is implemented via a tax credit. Everyone is taxed and then a tax credit is offered. Obama’s lawyers may lose on the ‘penalty’ for not having health insurance, but they get around it by taxing for whatever reason and then crediting for proof of adequate health insurance.

A status of ‘no income’ is not a way to avoid the tax, because there is a level of poverty and people derive a living in some manner unless they are a dependent and in such cases they are covered under someone’s tax forms.

A person declaring zero taxable income (or nearly zero) will be taxed ‘zero’ but will still receive a tax credit in the form of a check that will only be good for purchasing ‘adequate’ health insurance. If there were no 16th Amendment, the Left would have no arguments to make before the Court.

Is there currently any law requiring a citizen to accept government assistance of any kind? As far as I know, not now. If I qualify for food stamps, but refuse them, do I violate the law? If the Feds send me an “Earned Income Tax Credit” check, but I refuse to cash it, do I violate the law? If someone qualifies for WIC, and refuses to apply, does she violate the law? You might argue that you don’t have to accept a social security check either if it offered to you.

But, I think you should accept that the government is going to defend Obamacare in the same way it did as Social Security, by having it cast as a tax. But, If they equate the health insurance mandate with Social Security, then health insurance is no longer a mandate, but it becomes an entitlement, doesn’t it?

The enumerated powers of the federal government are very specific, and in order to find the power to force citizens to purchase health care, it must be “read into” the Constitution, because it is not among the enumerated powers — the “Good-and-Welfare” clause notwithstanding.

This is not constitutional – if the courts accept it as a tax. In the end, the constitutional challenge may hang on involuntary servitude. Forcing citizens to buy a product or service under penalty of wage garnishment is indentured servitude.

To the public: No, no, it’s insurance for when you get older. To the court: No, no, you misheard me. It’s a tax. Sleazy all the same.

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