“Obamacare” Patient Protection and Affordable Care Act Unconstitutional Under Commerce Clause But Passes Muster as a Tax Increase

In an amazing turn of events, the long awaited decision of the Supreme Court on “ObamaCare” was first announced by news organizations as having been ruled unconstitutional. But that was before Chief Justice Roberts had finished reading the majority decision. It was clear that the government’s argument suggesting the law was valid under the Commerce Clause had been disproved by the Supreme Court. The shocker was the finding that the law was permissible under the government’s taxing authority. Perhaps no one was more surprised by this than those in Congress who had actually voted for passage of the law in the first place.

The June 27, 2012 full opinion and dissents comprise 193 pages. Oral arguments in the case were heard on March 26, 27, and 28, 2012. Several cases, in fact, were consolidated in the decision. Their titles are listed below, along with links to the oral argument recordings and transcripts.

Docket No. Oral Argument Case Title
11-398-Monday 2012-03-26
Transcript

DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. FLORIDA ET AL.
11-398-Tuesday 2012-03-27
Transcript
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. FLORIDA ET AL.
11-393 2012-03-28
Transcript
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., PETITIONERS v. KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
11-400 2012-03-28
Transcript
FLORIDA, ET AL., PETITIONERS v. DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL.

By concluding that the law is constitutional, Chief Justice Roberts was quick to note that the Court does not necessarily agree with the law’s advisability. “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” He further stresses that “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Whether the law is well founded or wise is not the question; the question is simply whether the Constitution grants Congress the ability to pass the law. In justifying the decision Chief Justice Roberts makes this observation: “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Those were not his words, but rather words published July 5, 1819, by Chief Justice John Marshall.

Congress cannot rely upon the Commerce Clause to assume the power to force people to buy insurance, as was the Government’s position. That position is unconstitutional. The Constitution does, however, grant Congress the power to impose taxes. The Affordable Care Act imposes a penalty upon those who fail to purchase health insurance. If that mandate is considered a tax, then it would be constitutional. “According to the Government, even if Congress lacks the power to direct individuals to buy insurance, the only effect of the individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld as a tax.”


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