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Obamacare Flushes the Constitution

Posted on August 3 2010 9:00 am
Jon N. Hall is a programmer/analyst from Kansas City.

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“I will — listen now — I will cut taxes — cut taxes — for 95 percent of all working families, because, in an economy like this, the last thing we should do is raise taxes on the middle class.”

— Obama’s acceptance speech at the 2008 Democratic convention.

Whether it was to save himself from being labeled a liar for raising everyone’s taxes or to hustle ObamaCare through Congress, on ABC News last September Obama scoffed at the idea that the “individual mandate” is a tax.

Congress inserted the “individual mandate” into ObamaCare citing its power to regulate interstate commerce under the Commerce Clause.

Substituting for Rush Limbaugh behind the “Golden EIB Microphones,” Mark Steyn recently did a very funny riff on how the entire Constitution has been distilled down to Commerce Clause. Our dear old Constitution is just one giant Commerce Clause; every power flows from it. Upshot: Congress can do whatever it wants.

But Steyn neglected the other surviving remnant of the Constitution: the power to tax.

In responding to the states’ suits against ObamaCare, Obama’s lawyers now contend that the “individual mandate” is a tax after all. (Will the bait-and-switch ever end?)

Some might wish that ObamaCare were still being defended with the Commerce Clause, as America needs clarity on the limits of that pesky clause. But a defense based on the taxing prerogative of the feds sets up what might be an even more vital precedent. The argument the states should now use to combat ObamaCare is the 14th Amendment’s Equal Protection Clause.

The “individual mandate” is unconstitutional because it will be applied unequally. It seems some individuals are more equal than others — they are exempted from paying this new tax.

Among those exempted are the poor, who, last we checked, were still individuals. But inability to pay a tax is no excuse. If one can’t pay sales tax, one can’t buy things. If one can’t pay one’s property tax, one can’t license one’s car. If one can’t pay the tax on one’s income, the I.R.S. sends one to jail.

Individuals who are members of a “recognized religious sect” also won’t be required to pay the tax: H.R.3590, Sec. 5000A, (d) (2). Exemption of government-approved religions is unequal on its face. Do we really want Congress or, even worse, un-elected bureaucrats deciding for us what is a legitimate religion? We don’t exempt members of preferred sects from paying their income taxes, sales taxes, etc. Such exceptional treatment is entirely un-American. (But hey, we’re all Amish now.)

Most taxes in America are levied on assets and transactions. If one owns an asset, one pays taxes on it. If one passes an asset on through a transaction or transfer, one is also taxed. But this new-fangled tax in ObamaCare is something altogether different. It is a tax on the individual himself, not his income, purchases, real estate, capital gains, etc.

Therefore, each individual must pay the tax. And each individual must pay the same amount, down to the penny. But this is not the case with ObamaCare, where the various health insurance companies will charge different premiums. It should be noted that these premiums are what the “individual mandate” requires us to purchase and what Obama now says is a tax. But government cannot charge varying tax rates for the very same thing to various individuals.

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