Is Obamacare going back to court?

From the Wall Street Journal:

Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’s “Uniformity Clause” (Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.

The Supreme Court has rarely considered the Uniformity Clause’s reach, but it cannot be ignored. The court also refused to impose meaningful limits on Congress’s power to regulate interstate commerce for decades after the 1930s, until justices began to re-establish the constitutional balance in the 1990s with decisions leading up to the ObamaCare ruling this summer. And although the court has upheld as “uniform” taxes that affect states differently in practice, precedent makes clear that a permissible tax must “operate with the same force and effect in every place where the subject of it is found,” as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

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7 Responses to Is Obamacare going back to court?

  1. Undoubtedly but not before the penalty phase begins on January 1 instead of what were supposed to seem like “free goodies”. Those were frontloaded before the election so the grateful could vote their thanks at being relieved of the monthly expense of birth control. Or staying on their parents plan until 26.

    That latter may come in handy as hours get cut. I don’t know how much play it has gotten in Australia but the provide insurance or pay a fine kicks in at 30 hours, not the 40 that heralds full-time employment in the US. So lots of businesses that pay by the hour are cutting employees back to 28 hours according to the news.

    Just what is needed in a recessionary economy, huh? So much of the fiscal cliff talk is really trying to place blame for the inevitable effects of what too much regulation, uncertainty over what will be added and what rules will still be changed, and taxes popping up everywhere.

    It could be part of an Economic course on what will destroy the private sector that’s not a Political Crony.

  2. sdog

    I’ve given up. I’m just going to sit back and watch it burn.

  3. Luke

    “The Supreme Court has rarely considered the Uniformity Clause’s reach, but it cannot be ignored.”

    Have you NEVER read a major decision from the judiciary for the last 6 decades Sinclair?! They ignore whatever they find convenient to ignore! It’s the beauty of common law, you just put a new “emphasis” on different aspects of it.

  4. .

    I don’t know if it is common law which is the problem. FDR stacked the court to achieve a desired outcome.

    This is the worst USSC case ever.

    http://en.wikipedia.org/wiki/Wickard_v._Filburn

    Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

  5. Jarrah

    The commerce clause is the USC’s trump card. It’s been at the root of many of their worst decisions.

  6. John Mc

    The logic of that ruling is perverse to say the least. As Clarence Thomas has said, if the rulings are wrong they should be fixed up and the Supreme Court should not shy away from doing what’s required.

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