Obamacare Doesn't Pass Constitutional Test

Friday, 22 Nov 2013 10:34 AM

By Joseph Schmitz

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There are at least 82 ongoing judicial challenges to what remains of the Patient Protection and Affordable Care Act of 2009, aka Obamacare, after the Supreme Court in 2012 struck down its “Medicaid expansion” provision as unconstitutionally beyond Congress’ power.

According to Chief Justice John Roberts in NFIB v. Sebelius: “As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order states to regulate according to its instructions.”

In the same 2012 opinion, the chief justice wrote this important caveat about the individual mandate: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.”

One of those other requirements is that, “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills” (Art. I, §7).

Obamacare originated as Sen. Harry Reid’s self-described “Senate Health Care Bill.”

The last time a federal court struck down a tax bill that originated in the Senate, the court opinion began: “That an unconstitutional statute is not a law at all is a proposition no longer open to discussion” (Hubbard v. Lowe, 1915).

In that case, the federal judge explained, “The Cotton Futures Act is not, and never was, a law of the United States. It is one of those legislative projects which, to be a law, must originate in the lower house.”

The same applies to Obamacare, especially in light of Chief Justice Robert’s caveat that, “any tax must still comply with other requirements in the Constitution”: The Affordable Care Act “is one of those legislative projects which, to be a law, must originate in the lower house.”

The Supreme Court having already ruled that one portion of Obamacare violated the 10th Amendment, that same Amendment — the final provision of the Bill of Rights: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” — should now be used by all other courts as a rule of construction, if necessary, in the 82 ongoing judicial challenges to what remains of Obamacare.

Judges should construe any ambiguities in whatever enumerated powers of Congress might justify the remaining portions of the Affordable Care Act against expanding Congress’ powers, whether under “Congress’ power to tax,” the Commerce Clause, or the Origination Clause.

On Nov. 8, 2013, 40 Member of the House, led by Trent Franks, chairman of the House Judiciary Subcommittee on the Constitution, filed an amici curiae brief in one of the ongoing judicial challenges, Sissel v. HHS (D.C. Circuit No. 13-5202), arguing that, “If the Senate can introduce the largest tax increase in American history by simply peeling off the House number from a six-page unrelated bill which does not raise taxes and pasting it on the ‘Senate Health Care Bill,’ and then claim with a straight face that the resulting bill originated in the House, in explicit contravention of the supreme law of the land, then the American ‘rule of law’ has become no rule at all.”

Twenty one years ago, the United States Supreme Court struck down the so-called “take title” and face penalty provision of the Low Level Radioactive Waste Policy Amendments Act of 1985 as unconstitutional under the 10th Amendment because it was beyond the powers delegated to Congress by the Constitution.

The court’s 2012 Obamacare decision, NFIB v. Sebelius, cited this 21-year-old precedent at least the same number of times in striking down the Medicaid expansion portion of Obamacare as unconstitutional.

The court in New York explained that, “the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States . . . The benefits of this federal structure have been extensively cataloged elsewhere . . .  but they need not concern us here. Our task would be the same even if one could prove that federalism secured no advantages to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution. ‘The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.’ United States v. Butler, 297 U. S. 1, 63 (1936).”

New York Court thus reinforced the 10th Amendment federalism principles explained by the Supreme Court 77 years ago in United States v. Butler in the context of Congress’ attempt to regulate agricultural production through the taxing power. In Butler, the court explained: “resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.”

In the 82 pending challenges to what remains of Obamacare, courts should utilize the 10th Amendment to construe any ambiguities in favor of reserving power “to the States respectively, or to the People.”

In the process, courts should also acknowledge that the Affordable Care Act, like the Cotton Futures Act a century ago, “is not, and never was, a law of the United States. It is one of those legislative projects which, to be a law, must originate in the lower house.”

Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC. Read more reports from Joseph E. Schmitz — Click Here Now.

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