"To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." -- Theodore Roosevelt


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Sunday, May 4, 2014

Is ObamaCare Still Unconstitutional?


"Would you stop arguing and just give in to my will?!"

The answer is yes, but the real question is "will it make any difference?" This a particularly sharp question for adherents "living Constitution" school.

From the NRO piece by George Will:

If the president wants to witness a refutation of his assertion that the survival of the Affordable Care Act is assured, come Thursday he should stroll the 13 blocks from his office to the nation’s second-most important court, the D.C. Circuit Court of Appeals. There he can hear an argument involving yet another constitutional provision that evidently has escaped his notice. It is the origination clause, which says: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.”  
The ACA passed the Senate on a party-line vote, and without a Democratic vote to spare, after a series of unsavory transactions that purchased the assent of several shrewdly extortionate Democrats. What will be argued on Thursday is that what was voted on — the ACA — was indisputably a revenue measure and unquestionably did not originate in the House, which later passed the ACA on another party-line vote.  
[...]  
The “exaction” — Roberts’s word — “looks,” he laconically said, “like a tax in many respects.” It is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program. This surely makes the ACA a revenue measure.

Did it, however, originate in the House? Of course not.

In October 2009, the House passed a bill that would have modified a tax credit for members of the armed forces and some other federal employees who were first-time home buyers — a bill that had nothing to do with health care. Two months later the Senate “amended” this bill by obliterating it. The Senate renamed it and completely erased its contents, replacing them with the ACA’s contents.

Case law establishes that for a Senate action to qualify as a genuine “amendment” to a House-passed revenue bill, it must be “germane to the subject matter of the [House] bill.” The Senate’s shell game — gutting and replacing the House bill — created the ACA from scratch. The ACA obviously flunks the germaneness test, without which the House’s constitutional power of originating revenue bills would be nullified.  
[...]  
The ACA’s defenders say its tax is somehow not quite a tax because it is not primarily for raising revenue but for encouraging certain behavior (buying insurance). But the origination clause, a judicially enforceable limit on the taxing power, would be effectively erased from the Constitution if any tax with any regulatory — behavior-changing — purpose or effect were exempt from the clause.

So ObamaCare survived because it was declared a tax, but could be doomed because it was a tax... Man, am I tired of these contortions to keep together the Left's dream of sentencing the middle class to government health care, and the shared misery of their supporters.

In a way, this is all useless. ObamaCare will crash. It's a that's law so badly written one wonder if that was not its intention in the first place. It simply cannot work.

The question has always been, how much damage will ObamaCare do before it collapses. And the answer is probably going to be many billions of dollars, higher health insurance costs, and worse health for Americans.

Maybe this lawsuit can shorten the suffering, but I have my doubts. I'm sure the Supreme Court will contort itself to allow ObamaCare to run its destructive course. Call me a pessimist.


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