Let's Dispel the Myths of Obamacare's Constitutionality

Friday, 15 Nov 2013 10:08 AM

By Joseph E. Schmitz

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Aside from the lie that “If you like your healthcare plan, you'll be able to keep your healthcare plan, period,” three other oft-repeated and related myths about the Affordable Care Act, aka Obamacare, warrant highlighting:
  • Myth 1: The Affordable Care Act is not a tax. This lie has already been dispelled by the U.S. Supreme Court. According to Chief Justice John Roberts, “The individual mandate cannot be upheld as an exercise of Congress’ power under the Commerce Clause,” but, wrote the Chief Justice in 2012, “Such legislation is within Congress’ power to tax.”
  • Myth 2: The Affordable Care Act has been upheld by the Supreme Court. The Supreme Court only upheld 1 of the 2 parts of the Affordable Care Act before the Court in 2012, while striking down the second part as unconstitutional under the 10th Amendment. To quote the Chief Justice again, “As for the Medicaid expansion [aka the state Mandate], 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.”
  • Myth 3: The Affordable Care Act is the law of the land. At least two parts of the 2010 Act have been struck down. Moreover, Obamacare originated as the “Senate Health Care Bill.” This supports a compelling legal argument that the origins of the Affordable Care Act violated the constitutional mandate that “All bills for raising Revenue shall originate in the House of Representatives.”
As recently as last week, Secretary of Health and Human Services (HHS) Kathleen Sebelius falsely testified before the U.S. Senate Finance Committee that the Affordable Care Act, as opposed to the Individual Mandate, has been “upheld by the Supreme Court.”

Just in time to help dispel this false testimony, two days later Rep. Trent Franks, chairman of the House Judiciary Committee on the Constitution, and 39 other House Members, filed a no-holds-barred friends of the court brief in an ongoing challenge to the Affordable Care Act based on the Origination Clause of the U.S. Constitution which states, “All bills for Raising Revenue shall originate in the House of Representative; but the Senate may propose or concur with Amendments as on other Bills.”

The Affordable Care Act originated in the Senate as the “Senate Health Care Bill.” Sen. Harry Reid’s official website still boasts in a Nov. 18, 2009, press release that, “the Senate health care bill . . . makes health care more affordable while reducing the federal deficit . . . by $130 billion.” 

One day after its unveiling, the “Senate Health Care Bill” morphed into an “amendment” that replaced the entire content of a six-page, unanimously-passed and totally unrelated House Bill, whose stated purpose was “to modify the first-time homebuyers credit in the case of members of the Armed Forces.”

Based on the U.S. Supreme Court’s 2012 decision in NFIB v. Sebelius, the Individual mandate can only be constitutional under what was referred to as “Congress’ power to tax.”

In their friends of the court brief last Friday, Rep. Trent Franks and his 39 House colleagues explained: “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.”

Earlier this month, the same Court of Appeals in which they filed their friends of the court brief struck down the Contraceptive Mandate portion of the Affordable Care Act.

Contrary to the testimony of Secretary Sebelius, the Affordable Care Act is thus hardly an Act of Congress that has been “upheld by the Supreme Court.”

As the Supreme Court explained in New York v. United States, “The question is not what power the federal government ought to have but what powers in fact have been given by the the people."

In Friday’s friends of the court brief, the 40 Members of the House reminded the Court of Appeals that when the Supreme Court upheld the Individual Mandate, the Supreme Court issued this caveat: "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."

As a result of this $675 billion dollar revenue-raising bill, now known more commonly as Obamacare, Founding Father George Mason’s exact fears expressed during the 1787 constitutional debate have come true — notwithstanding the subsequent enactment of the Origination Clause: “If the Senate can originate, they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried, [to use a common phrase] for the meeting of the H. of Representatives.”

Almost 100 years ago, a federal court in New York struck down another act of Congress for imposing an excise tax on Cotton Futures. In that case, Hubbard v. Lowe, the court explained that such a tax is, “one of those legislative projects which, to be a law, must originate in the lower house.”

Likewise, Congressman Franks and at least 40 of his House colleagues would argue, Obamacare is “one of those legislative projects which, to be a law, must originate in the lower house.”

Let’s hope the court agrees that the Affordable Care Act, aka Obamacare, “is one of those legislative projects which, to be a law, must originate in the lower house." On this point, where are all the other House members?

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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