WASHINGTON, July 3, 2012 — With all the shouting about Chief Justice John Roberts’s convoluted, confusing, and perhaps internally contradictory opinion that ruled the Affordable Care Act constitutional under Congress’s taxing authority, a few points haven’t been made often enough, and one big one has hardly been made at all.
Obamacare’s individual mandate was never described as a tax by its proponents, nor is it a tax, in its own language. To point out that it acts as a tax is an act of judicial law-writing, way beyond interpretation. Worse, so many other mandated payments (mandatory auto liability insurance comes to mind) can now be justified as “taxes,” since they work similiarly to the mandate.
Declaring Obamacare a tax makes the penalty immune to relief through bankruptcy, a further deadly hook.
Any federal tax bill needs to originate in the House of Representatives. Though the bill number originated in the House, the essential content of the bill was the Senate’s doing. So, if the effect is a tax, was not the effect introduced in the Senate, and isn’t that procedurally unconstitutional?
The big point that pundits and analysts have ignored since the ruling is this: If Obamacare really is a tax, what will happen to all the waivers already granted in order to buy support for it from unions, from McDonald’s, from others? Can a cabinet secretary simply grant a specific group or company dispensation from a tax, without congressional action? Can Congress grant a cabinet secretary such power? Of course not, and so Obama’s biggest supporters in labor and his swing votes in big business have been sold out. Will any of them openly recognize this betrayal before the election? Or will Obama make federal law on his own, through executive orders and his cabinet appointees, to keep these groups happy? If he can do that, what do we need Congress for?
Usurpation of legislative power has been the president’s quest since his election. Will anyone call him on it? Does Congress wish to have any relevance, ever again?
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