Rep. Gohmert Proposal Hits Obamacare as Unconstitutional

Friday, 03 Aug 2012 08:53 AM

By Joseph E. Schmitz

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Teddy Roosevelt would have approved of Rep. Louie Gohmert, R-Texas, and 10 congressional co-sponsors' new House resolution, which states that Obamacare "violates article I, section 7, clause 1 of the United States Constitution because it was a 'Bill for raising Revenue' that did not originate in the House of Representatives."

Voters should urge their congressmen, regardless of political party, to join  the bill, H.Res. 735, as co-sponsors, thereby reaffirming the Origination Clause that, “All Bills for raising Revenue shall originate in the House of Representatives."

When Teddy Roosevelt was a student, Harvard University professors taught the “difference between taxation and robbery.” For example, in his 1890 treatise on “Civil Government in the United States Considered with Some Reference to Its Origins,” author John Fiske explains: “The most essential feature of a government . . . is the power of taxation. The government is that which taxes. If individuals take away some of your property for purposes of their own, it is robbery. But if the government takes away some of your property in the shape of taxes, it is supposed to render to you an equivalent in the shape of good government — something without which our lives and property would not be safe. Herein seems to lie the difference between taxation and robbery.”

If the “People’s House” does not safeguard its explicitly delegated power to originate “All Bills for raising Revenue,” why should any of the parties challenging Obamacare in the various federal district courts across the country expect the judicial branch to do so?

In any event, the parties in ongoing court challenges to Obamacare should amend their complaints by adding a cause of action under the Origination Clause bolstered by H.Res. 735.

If those ongoing legal challenges fail, five Supreme Court justices will have overturned a 76-year-old 10th Amendment precedent of the court, without any public debate on the now apparent Origination Clause flaw of “ObamaTax,” and based on a “Senate healthcare bill” containing 17 numbered “Revenue Provisions” that purported to amend a totally non-germane House Bill in violation of the Origination Clause’s mandate.

About 20 years ago, in the context of another constitutional challenge, the court struck down the “take title” or face penalty provision of the Low Level Radioactive Waste Policy Amendments Act of 1985 as unconstitutional because it was beyond the powers delegated to Congress by the Constitution.

The court’s recent Obamacare ruling, while citing this 20-year-old precedent, at least the same number of times in striking down portions of Obamacare as unconstitutional, ignores the precedent set by New York v. United States (1992): “The power of taxation, which is expressly granted, may, of course, be adopted as a means to carry into operation another power also expressly granted. But resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.”

The court in New York v. United States 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 Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power . . . Our task . . . 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).”

Under the “established principle” recognized by the Supreme Court in Butler, “that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted,” the individual mandate portion of Obamacare would have been unconstitutional even if Congress had enacted it “under the pretext” of Congress’s power to tax.

All the more reason that members of the House of Representatives should defend their constitutional turf by co-sponsoring H.Res. 735.

Wittingly or not, Chief Justice Robert’s “power to tax” conclusion is diametrically opposed to the Supreme Court’s ruling in Butler, that “resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.”

If one were simply to substitute Obamacare for the Agricultural Adjustment Act of 1933, and “healthcare” for “agricultural production” in the Supreme Court’s 1936 ruling in Butler, the constitutional analysis would be the same: Obamacare “invades the reserved rights of the states. It is a statutory plan to regulate and control [health care], a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end.”

How can something so “obviously inadmissible” to the Supreme Court 76 years ago be totally ignored by the Supreme Court in 2012?

The parties in ongoing litigation over Obamacare/ObamaTax — and any other parties affected by its new revenue-raising provisions — should amend their trial court complaints to include a cause of action under the Origination Clause. In the meantime, voters should encourage their congressmen to reaffirm the Origination Clause by co-sponsoring H.Res. 735.

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