The Supreme Court has struck down “Obamacare” qua “Obamacare” as unconstitutional. In its place, the Supreme Court has, in effect, enacted a new “tax” on the middle class. It is now up to the Congress and the American people to clean up the surviving unconstitutional debacle.
According to the chief justice, “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’ power under the Commerce Clause.” On the other hand, the chief justice found that, “Such legislation is within Congress’ power to tax.”
Moreover, the chief justice explained, “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.”
What survived the court’s four interrelated Affordable Care Act opinions is thus not “Obamacare,” at least not the way its namesake and the Congress that enacted it envisioned it.
The chief justice announced in an opinion joined by four other justices (Ginsburg, Sotomayor, Breyer, and Kagan): “No one would doubt that this law imposed a tax, and was within Congress’ power to tax.” Of course, President Obama himself has publicly disclaimed that “his” law is a tax.
Five Supreme Court justices agreed that the “individual mandate” centerpiece of Obamacare is not within the constitutional power of Congress under the Commerce Clause; five justices instead deemed it a constitutional “tax” (although not a tax under the Anti-Injunction Act). Moreover, according to 1 of the 4 inter-related Supreme Court opinions, “Seven members of the court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional.” Within hours, the presumptive Republican presidential nominee, Mitt Romney, announced that, “What the court did not do on its last day in session, I will do on my first day if elected president of the United States. And that is, I will act to repeal Obamacare.”
With all due respect, Gov. Romney, the Supreme Court has already repealed Obamacare by converting it into a new tax on the middle class.
A decade before our forefathers signed the Declaration of Independence, Sir William Blackstone published his famous treatise, “Commentaries on the Laws of England.” In that treatise, Blackstone explained that it is an essential element of all man-made laws that they be prescribed by the lawmaker and, “it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.”
The problem with Obamacare, as enacted, was that it was Caligula-esque in its manner of prescription and promulgation. As admitted by the speaker of the House of Representatives prior to its enactment, “We have to pass the bill so that you can find out what is in it." According to Blackstone, that manner of prescription and promulgation is “even more unreasonable” than Emperor Caligula.
The problem with the Supreme Court’s newly deemed tax on the middle class is that it is equally anti-transparent and unaccountable. The solution is for the legitimate lawmakers under our Constitution, the Congress, to repeal what is left of Obamacare after five justices of the Supreme Court converted it into a new tax on the middle class. While they’re at it, members of Congress should also propose and send a constitutional amendment to the States for ratification, clarifying that the tax power belongs to Congress, not to the Supreme Court (and not to the president), so this type of unaccountable and anti-transparent tax never happens again.
Any congressional solution to the lingering vestiges of Obamacare should be consistent with the text, structure, and the preamble of the original Bill of Rights itself, which suggest that the founders intended courts to utilize the 10th Amendment as a rule of construction to construe ambiguities in the Constitution, including ambiguities in the Commerce Clause and the tax powers of Congress, against Congress and in favor of reserving power “to the States respective, or to the people.”
Likewise, whenever any federal court or agency is forced to “legislate” by construing statutory ambiguities, they should utilize 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” — as an interpretive rule to construe ambiguities against the proffering party, i.e., against Congress.
As the Supreme Court explained in New York v. United States, 505 U.S. 144 (1992), which decision the recent opinions of the court cited no fewer than 20 times in finding parts of Obamacare unconstitutional, “The question is not what power the federal government ought to have but what powers in fact have been given by the [States and] the people,” quoting United States v. Butler, 297 U.S. 1, 63 (1936).
If the “Obamacare” constitutional debacle is not remedied through transparent and fully-accountable actions by the Congress, it could well result in the same type of public indictment that was lodged against the tyrannical king of England in the Declaration of Independence, only this time it would be against all three branches of the federal government: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”
With “Obamacare” struck down as unconstitutional — at least struck down in the form that its namesake and the Congress that enacted it had envisioned it — just how long the Supreme Court’s new tax on the middle class continues to live is now up to the Congress and the American people.
Obamacare is dead; long live “We the People” and our Constitution.
Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC.
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