Among the issues most commonly discussed are individuality, the rights of the individual, the limits of legitimate government, morality, history, economics, government policy, science, business, education, health care, energy, and man-made global warming evaluations. My posts are aimed at intelligent and rational individuals, whose comments are very welcome.

"No matter how vast your knowledge or how modest, it is your own mind that has to acquire it." Ayn Rand

"Observe that the 'haves' are those who have freedom, and that it is freedom that the 'have-nots' have not." Ayn Rand

"The virtue involved in helping those one loves is not 'selflessness' or 'sacrifice', but integrity." Ayn Rand

08 July 2012

ObamaCare: No Due Process, Unconstitutional Tax

It is said that the 5-4 Supreme Court decision that ObamaCare is constitutional in NFIB v. Sebelius provided that the penalty for not buying the expensive health insurance plan mandated by the government is redesignated a tax, is not entirely bad because by a 7-2 decision the court decided that ObamaCare was unconstitutional under a basis provided by either the Commerce Clause or the Necessary and Proper Clause.  It is now well-established that there are some limits to the powers granted the government by these other clauses of the Constitution, which had been the primary basis for the Obama administration claim that ObamaCare was constitutional.  The law was held to be constitutional as re-written by Chief Justice Roberts.

Nonetheless, the Supreme Court declared a highly unconstitutional law to be constitutional, as it has long had a tendency to do.  It has violated the fundamental American Principle that forms the foundation for the purpose and function of the government which the Constitution mandated as the will of the People.  The Constitution written and signed by the members of the Constitutional Convention in 1787 and which went into effect after 9 states had approved it in 1789, was a reformation of the government of the United States of America.

The United States of American began with the Declaration of Independence, signed 2 July 1776 and announced publicly on 4 July 1776.  The Declaration of Independence had proclaimed that every individual has an equal and inalienable (or sovereign) right to life, liberty, and the pursuit of happiness.  It was understood that these individual rights were not granted by government and that they resided in each individual man by virtue of his nature.  Individual human rights included the right to property.  The most important property each man held was his own body and mind and his labor.  The Declaration of Independence decreed that any government that violated an individual's rights was illegitimate.  Government should have as its purpose and sole function the protection of individual rights.

This American Principle of highly limited government devoted to the protection of the rights of the individual, was the basis for the government mandated by the People in the Constitution for the same United States of America which took effect in 1789.  The continuation of our government in a new form did not result in an abrogation of the Treaty of Paris, signed in 1783, which ended the American Revolutionary War and created a number of agreements which the Great Britain had still not fulfilled in 1789.  President Washington continued to try to hold the British to those requirements of the Treaty of Paris.  We were not a new country in 1789 and we still owed our existence and our birth as a nation to the Declaration of Independence.  While the powers given to the government by the Constitution were thought by many to be so restricted and limited that the government could not pose any threat to individual rights, most Americans worried so much about some future infringements that they demanded the Bill of Rights as a condition of their approving the Constitution.  The People then thought the Constitution with its Bill of Rights was a clear mandate for a government that could not violate our sovereign individual rights.

It was well-understood that government, while needed to protect individual rights, was also very inclined to add to its powers until government became the primary violator of individual rights.  Such is the case in the United States of America today.  The federal courts have neglected the context in making decisions of law generally and constitutional law in particular that is provided by the foundational  American Principle.  Without the repeated and constant guidance of that principle, long strings of court cases were decided and precedent was established which provided government with more and more of the additional powers it desired, but which caused government to become the primary violator of individual rights in the USA today.  Such unguided and out-of-context decisions greatly expanded the powers of government by expanding the scope of the Commerce Clause, the Necessary and Proper Clause, and the power to tax without regard to the effect upon our individual rights.  As a result, Congress was under the impression when it passed ObamaCare that these clauses of the Constitution gave it the power to do almost anything it chose to do.

Precedent is important and helps people to understand the law and its interpretations and to prevent sudden interpretation changes.  This is true only if those precedents were established in a manner consistent with the American Principle, however.  In our case decisions too often have not been consistent.  Any interpretation of the Constitution or of any law deemed to be constitutional, must be consistent with the requirement that legitimate government cannot violate individual rights.  It is the American Principle that makes the United States of America exceptional among nations and which legitimately causes a freedom-loving People to admire what they once had here in the United States of America.

ObamaCare: Due Process Failure

From early in the legislative process to create ObamaCare, the American People have been deprived of due process in this law which will have very drastic effects upon our lives and the exercise of their rights.  I have discussed many of these in the past and the present 5-4 Supreme Court decision has added to the list of due process failures.  The following is a list of many of these due process failures:
  • The name of the Patient Protection and Affordable Care Act is a misrepresentation of the act.  It was always clear it would make health care more expensive for almost everyone and that the quality of healthcare would suffer for most people.  The act was a fraud perpetrated upon the People, so they were less likely to bring appropriate pressure upon their elected representatives to oppose its passage and protect their individual rights.
  • The principal effect of ObamaCare was to turn ownership of every individual's body and the mental health of their minds to the collective in the most direct and obvious violation of individual rights.  The intent of the law was to force individuals to buy a more expensive and comprehensive insurance policy than most need as an individual so that free-riders could not game the government intrusion into the health care system that already controlled half of that marketplace.  It was also so that a very small fraction of people with pre-existing conditions could get health insurance.  But, neither the plight of a few people with pre-existing conditions nor some free-riders, could justify any constitutional judgment that ObamaCare was an act of legitimate government.  Clearly, most people were going to suffer a real and important loss of their ability to manage their own lives, decide how to protect their health, and were going to suffer a loss of happiness while forced to wait in pain for long periods to see overworked, underpaid, and angry doctors whose medical skills and equipment were going to suffer degradations relative to the free market alternative.
  • Each of our elected representatives and the President have an obligation recognized in their oath of office to protect the Constitution.  They are clearly in violation of this oath every time they vote for or sign into law a bill which they have not read.  This is a major violation of due process and should be recognized as such.  The votes of any Senator or Representative who did not read the bill and properly judge whether it was constitutional or not are invalid votes.  This being the case, the bill did not pass either the House or the Senate legitimately and with due process.
  • Many additional effects of the law were misrepresented. It was claimed over and over that if one liked one's present health care insurance plan, one could keep it.  The law clearly did not allow this.  It was said over and over that the panels that would decide what medical care would be provided to whom, were not Death Panels, and yet these same panels are declaring that many life-saving operations previously provided to those 70 and over will no longer be offered or provided.  The same will be true of newborn infants.  Life or death will be decided by these panels, but we cannot recognize that function!  Fraud once again was practiced to ease the passage of this law, which barely did so.  Perhaps some Senators and Representatives were fooled by these fallacious claims and would not have voted for the bill had they known.
  • Tax bills must originate from the House of Representatives.  This bill is full of new taxes, even prior to the Supreme Court ruling that the penalty is really a tax.  This bill did not originate in the House.  H.R. 3590 was a bill called Service Members Home Ownership Tax Act of 2009 which was passed by the House, whose name and content was completely changed by Senator Harry Reid and turned into the Patient Protection and Affordable Care Act.  This was a transparent violation of the Origination Clause requiring revenue bills to come from the House.  Chief Justice Roberts chose to take no notice of this constitutional violation, though the dissenting opinion did note it.
  • ObamaCare is essentially a huge outline of a bill which ceded the responsibility of the Congress to write bills in large part to agencies under the Executive Branch who are writing or have written thousands of pages of rules and regulations to implement ObamaCare which Congress has not reviewed in fulfillment of its constitutional duty.  These Executive Branch agencies and cabinet departments are not constitutional allowed to establish laws.
  • Tax laws cannot be reviewed by the Federal Courts until the taxes in them take effect.  This case was reviewed by the Supreme Court and allowed to stand even as that court claimed that the huge penalties of the bill were taxes.  Those taxes are not yet being assessed, so this bill should not have been reviewed under due process at this time.  The fact that the decision was rendered is in direct contradiction of the decision that the penalty is a tax.
  • The bill claims the penalties for not buying the government mandated health payment plans are not taxes.  The American people were told by many Senators, Congressmen, and the President that they were not taxes.  Indeed, the purpose of a tax is to raise revenue, while that of a penalty is to compel behavior.  This compelling of behavior was the aim of the ObamaCare bill.  Justice Roberts says the tax is not high enough to force anyone to buy ObamaCare health insurance, so it does not compel behavior, so it is not a penalty.  This is a tortured viewpoint.  Since the majority of the Supreme Court now says they are taxes, even if this bill had been passed by Congress and signed into law under due process, that due process would have been forfeit now.  The Supreme Court is not authorized by the Constitution to create new legislation on its own as it just did.  Laws are made in Congress, which has the first pass on deciding whether a law is constitutional or not.  Then the President has an opportunity to veto a bill if he thinks it is unconstitutional.

ObamaCare is Now an Unconstitutional Tax

Chief Justice Roberts and the four radical leftists on the Supreme Court redesignated the penalty for not buying a particular prescribed government health "insurance" policy at an elevated cost largely dictated by conditions of inclusion set by the government to be a tax.  This tax is a direct tax and has not been apportioned among the states as required by Article I, Section 9 of the Constitution:
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
This means that any direct tax can only be levied upon a state in proportion to its population.  Presumably an income tax would be based on all income in the U.S. and each state would be required to provide a tax in proportion to its state population.  If the federal government decided that tax on income was to be 20%, then the tax to be collect would be (0.2) I, where I is the total national income.  If a particular state has a population which is equal to 2% of the national population, then it has to provide income tax revenue in its state of (0.02)(0.2) I to the federal government.  This makes it constitutionally impossible for the federal government to levy a progressive direct income tax and it means the tax in a given state will not be in the same proportion as income in that state.

The 16th Amendment seems to most Americans today to have created an exception to this injunction against direct taxes for the specific case of income taxes.  This was not so, because at the time this amendment was passed, income was considered to be, and was affirmed as such by the Supreme Court in Eisner v. Macomber in 1918 and in Merchants Loan and Trust v. Smietanka in 1921 to be the profit a corporation made.  In earlier decisions, Pollock v. Farmer's Loan and Trust (1895) and Brushaber v. Union Pacific Rail Road (1916), the Supreme Court had ruled that to be an indirect tax, income had to be separated from its source.  If a corporation was paid rent money for a building it owned, it had to subtract its expenses for renting the building and this established separation from the source of the income.  The tax on the profit from the rental was an indirect tax.

The rulings of the Supreme Court make it clear that a so-called income tax levied upon an individual's salary, wages, tips, commissions, and bonuses are direct taxes and are prohibited by the Constitution.  These direct payments belong to the individual as a matter of right, because his labor is his property by right.  Despite such payments not having been considered to be income in 1913 when the Income Tax Amendment was approved, the Supreme Court has never since these early cases taken up the protection of the individual right to payment for one's labor.  The government now taxes these payments without separation and without subtracting expenses in clear violation of the individual right to one's own labor and its fruits.  One might say the Supreme Court did for the income tax what it has just done for ObamaCare.  It found a limited way for it to be started and then never re-examined those situations it said were unconstitutional.

In a completely specious argument, Chief Justice Roberts claimed the penalty was a tax since it was not levied on most people.  The fraction of the population upon which a tax is levied has nothing at all to do with its being direct or indirect. 

Justice Roberts said that a tax that forced Americans to buy the government prescribed health insurance would be unconstitutional.  He said a penalty high enough to do so would be unconstitutional.  But, he says since the present tax is too low to compel Americans to buy health insurance, it is constitutional.  If this law is not soon repealed, it will fail because too many Americans will pay the tax rather than buy the more expensive health payment plan.  Future Congresses will then raise the tax until individuals are compelled to buy the health payment plan and then by Roberts' decision the law will be unconstitutional.

But will the Supreme Court actually review such a law and declare it unconstitutional?  Based on the precedent of the income tax, no.  But the reasoning offered by Roberts and the majority is very specious and very flimsy.  It begs to be reversed.  It is no wonder the dissenting Justices are very unhappy about this decision.  This decision has brought great disdain upon the Supreme Court majority by those who value reason and expect it to be valued by the Supreme Court.  The Supreme Court has once again failed to protect the sovereign rights of the individual to life, liberty, property, and the pursuit of happiness.


Gladys Porter said...

a very clear and concise representation of the true facts of Obamacare

Charles R. Anderson, Ph.D. said...

Thank you Gladys Porter!

While I aim for clear and concise, some people tell me they do not read some of my posts because they are too long. I am delighted that you had the patience and the motivation to read through this admittedly lengthy post.