Why the Health Care Law (i.e., "obamacare") is NOT Constitutional - Independent of what the Supreme Court Ruled.


Up front, I know of no one who wishes to see anyone go without proper and adequate health care. However, nowhere does the US Constitution offers a constitutional remedy or allowance for such as the ACA (a.k.a. "obamacare").

Also, having spent the majority of my career managing difficult programs and organizations, at no time was it considered a reasonable approach to apply a 100% solution to a 10% problem. By this I mean that there were an estimated 30 million people without health insurance out of a population of over 300 million prior to the ACA.

And, no, I did not get an advanced degree in the US Constitution from Harvard (or anywhere else for that matter). I am basing my position relative to the recent SCOTUS ruling on three things (other reasons that this law is not constitutional are found below):

First, the author of the Constitution had a few words on the subject. And, I would trust he, since he wrote it, had more than just a clue as to what it truly meant:

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." - James Madison

Second, the SCOTUS argument in favor of the individual mandate was made because the "forced signup" was deemed a "TAX" by Chief Justice Roberts. This seems strange on its surface as the major defense of the law by the government was based on the "Commerce Clause" of the Constitution (see my "offered opinion" later in this article). The Constitution, of course, allows government to levy and collect taxes; i.e., the US Constitution, Article I, Section 8, Clause 1, says:

"The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

(Note: See also the US Constitution, Article 1, Section 9 and the 16th Amendment for addition words on taxation.)

Therefore, since any tax must be uniform how can waivers be issued? When was the last time the IRS issued waivers to anyone? What waivers to the Health Care Law you ask? See the below links (just 2 as examples - the Internet is repleat with other such links) discussing the over multitude of waivers issued by obama to unions and certain corporations:

Partial list of Waivers to Unions and Businesses

Therefore, even excluding Mr. Madison's erudite statement, if the Health Care Law imposes a "TAX" and that tax is not uniform across the country, then the tax is NOT Constitutional per Article I, Section 8, Clause 1.

Now, since the "Tax" is the linchpin of the Health Care Law's funding and if a "tax" is not a permissible instrument to use here, the LAW can not be properly implemented. I believe the SCOTUS ruled in error - and, I am not alone in this by any means.

"OH", you say,"but if the Supreme Court rules something Constitutional then it's Constitutional". Not exactly. If such a ruling is made then the issue is "legally" Consitutional because the SCOTUS' opinion was such. However, consider: If the SCOTUS ruled that an apple was an orange, then legally it would be an apple (in this country). But, and apple will never actually be an orange. Note: The SCOTUS offers "opinions" not statements of "infallibility". The SCOTUS can be and has been wrong before and will be again.

And third, and very much to the point, let's look at the actual words of the SCOTUS' written opinion:

This is Chief Justice Robert's ruling on part of the Health Care Law - the most critical part, the individual mandate:

"The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality, . . .”

So, the court is telling us that the government can't force us to buy something but can tax us if we don't - mearly to ensure constitutionality? Sounds a lot like extortion to moi. And, he went so far as to infer a concept (i.e., tax vs. penalty) that was NOT in the bill as signed into law - the signed law used "penalty", never "tax". Chief Justice Roberts has "left the building" of rationality, I fear.

Further, obamacare has been established to pay insurance companies subsities where clients can't afford the premiums. However, such has been ruled unconstitutional. Obama went ahead and did it anyway.

Where else in American jurisprudence can be found that not complying with a law results in taxation? Nowhere! You can be fined, jailed, both, or worse (i.e., "a penalty" imposed) - but not taxed.

Further, the "Originating Clause" of the US Constitution seems to be in play here. Artice 1, Section 7, Clause 3 states:"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."

As the Health Care Bill, which by its "taxing" status raises revenue, originated in the Senate - NOT the House, this fact, by itself, seems to deem the Health Care law as unconstitutional.

Even Pelosi and Obama were smart enough not to have any provision in the Health Care Law that spoke of a "tax". As evidence of the this, in 2104 a video came to light which may be enlightening : Jonathan Gruber, an architect of Obamacare, sheds some light.

Since the Constitution limits the powers of government, only taxes identified in the Constitution may be levied. There is NO SUCH identification there of such a tax being permissible to the government to levy. Check it out yourself!

I feel that if the government proceeds to implement this law using taxation, then a future case against its Constitutionality may be viable. Time will tell.


Now, on to my opinion/position on the government's main defense of the Health care law (with which, by the way, the rulings of the SCOTUS seemed to agree).

Offered Opinion

Again and VERY important is that there is no one I know who believes ANYONE should be without adequate health care coverage.

Second, this offering does not address the fact that this Country can not afford the staggering costs of the health care bill – especially with the now understood UNDERESTIMATE of $900 billion+ dollars cost for the first 10 years on top of our monumental debt of $16 trillion. Repeat, this $900 billion+ is in ADDITION to the health care law's original estimate - actually it is DOUBLE the original estimate.

Third, this offering ONLY deals with the Constitutionality of the law.

Fourth, if the health care law had been viewed as unconstitutional by the Supreme Court or is in the future overturned and the people of our great Country want such a law, there is a remedy. It’s called an Amendment to the Constitution. This "remedy" is available for any issue as proscribed in our Constitution (see Article V of our Constitution).

The 10th Amendment (part of the Bill of Rights) states:

"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."

The ONLY powers (i.e., authority to pass laws) granted to the Congress are specified in Article 1, Section 8 of the Constitution. See the end of this discussion for the powers specified by Article 1, Section 8.

This means, in short, that the federal government may not institute any law, program, or initiative that is not specifically allowed to the government by the Constitution. This is applicable to the president, congress, and the judiciary.

As relates to the health care law, this may be restated (from above) as briefly summarized by James Madison, the main author of our Constitution:

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."

That’s pretty clear and from the man more closely attuned to the "meaning" of the Constitution than anyone living today.

So, what is the issue and why so much discussion? And, why is the government allowed to just ignore something so specific and clear? Well, as with most things, "it ain’t as simple as it sounds!"

Arguments for the constitutionality of the health care law cite the "Commerce Clause" (or, as some call it the "Interstate Commerce Clause") of the Constitution. Since the implementation of the health care law goes across state lines then, they say, this clause permits its execution.

OK. What, then, is the "Commerce Clause"? Here it is. It’s found in Article One, Section 8 (i.e., the powers of Congress), Clause 3 of the Constitution:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

That’s it in its entirety. But wait, there’s more to the discussion.

One must also look to the "Necessary and Proper Clause" in Article One, section 8, clause 18:

"The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers (i.e., those in Section 8), and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

So, say the proponents of the health care law’s constitutionality, since Clause 18 gives Congress the power to make laws pertaining to Section 8 AND Clause 3 gives Congress the power to regulate any interstate business, then all is OK with the health care law since the health care law’s provisions go across state lines.

But, "Hold on a minute.", say those opposed to the law’s constitutionality; "The law ‘mandates’ that business be done across state lines AND with fines/penalties for not "joining in" the program – that’s where the issues lie. Congress does not have the authority to issue such a mandate."

Then, the government's position (i.e., for the law) offers this: "The "fines" identified for not "joining in" are not really fines or penalties, they are, in fact, taxes. Therefore, Article 1, Section 8, Clause 1 applies." Opponents, obviously, do not agree. (Note: Please disregard any statements you have heard such as "There will be no new taxes on anyone making less than $250k per year".)

And, I believe those opposed are correct. The issue of the mandate is the central argument of the suit addressed by the Supreme Court.

But wait! There's still more. There was a chance that the Supreme Court would not even entertain the suit. The reason? The "mandate" does not go into effect until 2014. Therefore, no one has been "harmed" (i.e., fined for not "joining in") by the law as yet. So, a suit at this time may not have gone foward - but it did anyway.

There are many that lay this issue of constitutional legality at the feet of Obama, his administration, and Congress. Those persons are correct to do so. However, strict (or even "logical") adherence to the Constitution has been an ongoing issue with government administrations for many, many years – both democratic and republican, liberal and conservative.

See if you can find the "constitutionality" of:

This is not to say that any of the above is either good or bad. The legal justification just seems to be lacking.

UPDATE: 06.26.2015 - SCOTUS just ruled again that obamacare was legal. This time at issue was: The statute says people qualify for credits when they buy insurance on an exchange “established by the state.” Those last 4 words are hadly ambiguous. But the court ruled that what was "meant" by the law's authors was not that at all. The first go around on this the court created law - not their job - by directing word changes to the document to make it, by their measure, constitutional. This time the court decided to ignore spefici language in favor of what the court "thought" was meant - also not their job.

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Article 1 - The Legislative Branch, Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.