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If Obamacare is Constitutional then....

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The Court's holding on Obamacare's constitutionality was praised by many on the left, yet they may not be aware of the full implications. The holding was that under the commerce clause the bill was unconstitutional, but under the taxing power of Congress it passed the test. Can you imagine any other scenarios where such a precedent might have an effect? What if Congress passed a small tax on letters to the editor. Now clearly restricting free speech is unconstitutional, but what about a small tax? The Court just ruled that a small tax is within Congress's power when a direct mandate was not.

Democrats hold the White House and the Senate today, but someday the Republicans may hold all the elective branches of government again. What else could they tax? What about an abortion tax? What about a gay tax? What about a tax on people who speak out against the war? Why wouldn't such a law be ruled as constitutional under the same legal theory that the Court found Obamacare to be constitutional?

Did the Court just open a can of worms?

Comments

tbaker 1 year, 9 months ago

Yes. Two large cans of worms were opened. One legal and one political.

It was a HORRIBLE day for the constitution, but on balance the decision was not necessarily all that good for Caesar Obamanus either.

Obama is not able to play the victim and use the evil SCOTUS decision throwing out his signature achievement law as a theme to whine about and blame the boogie man preventing him from helping Americans without healthcare, etc, etc. Now he owns this ugly baby.

The court held States could elect NOT to expand MEDICADE/MEDICARE and not pony-up more money, essentially opting out of Obama Care. At least half the states will do this. Texas already has. This is important precedent, perhaps the best thing that came out of this ruling.

The “penalty” is in fact a tax. It’s official. Obama has spent the last 3+ years arguing it isn’t a tax. Now he has to eat that crow.

Obama promised not to raise taxes on people making less than the evil rich (>$250K) There is no way the ObamaCare tax will allow him to keep this pledge. The WSJ estimates 75% of the funding for ObamaCare will be from taxes on people making less than $150K.

Obama is on the horns of a big campaign dilemma too. He can chose to talk about ObamaCare which the majority of people hate and make it the central issue of the campaign, or he can chose not to talk about ObamaCare and by doing so let the Republicans define the issue for him.

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beatrice 1 year, 9 months ago

jafs: "... the whole idea of our structure is that states can and should operate differently, rather than operating in the same way. Think of it as different experiments in different states."

So you really believe that things like Social Security should be up to the states? If you live in Florida you get Social Security, but you don't if you live in Alaska? Should we do away with all federal taxes then and allow only states to gather taxes? Further, do you believe taxes that go to the feds should be determined by the states, so if you live in Texas you pay 70% to the feds, but in California you would pay 4%? None of that would even make sense.

We are separate states, but we make up one nation. Things determined right for the nation should apply to all states, and yes, this even includes things in which you do not agree.

Regarding being okay with the government making me buy a list of things -- I can only say that I'll have to wait until I see the actual list. To speculate on what the feds may or may not do because they are requiring us to do this one thing now is just too much of a Chicken Little game for me to take part.

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beatrice 1 year, 9 months ago

Sati, to stay on topic, you have asked if this is a step too far and I say it is not, although I acknowledge it is a big step. Then again, a big step was needed to get something done. Knowing that 30 million people will now have access to health care they can afford who previously did not is a great thing. I do not see how anyone can fall in line with the idea that those 30 million shouldn't have access to affordable health care (via insured care). Romney did it on a state level and Obama did it on the national level. Kudos to both, but I still have not read anyone say why someone in need of care in Massachusetts is somehow different from someone in need of care in Texas, or Kansas, or Arizona, etc....

A single-payer system would be a better step, but that wasn't about to happen.

Regarding the arguments made by others that now the government can make us buy television sets, or certain types of cars, or phasers that have a stun setting, those are "sky is falling" responses, in my opinion. Like those who said allowing Conceal and Carry holders greater access to carry would lead to bloodshed in the streets like the imaginary days of the Wild West, or that allowing gays to serve openly in the military would result in massive cases of violence against gay soldiers, in reality, these things didn't happen. The governemnt isn't going to make people buy certain types of television sets.

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Mike Ford 1 year, 9 months ago

that law didn't work very well because the thirteen colonies violated it and had immunity from lawsuit from 1790 to 1973 until the US Government under President Nixon of all people decided to side with the affected Malicite, Passamaquoddy, and Abnaki tribes and sue the State of Maine which led to the Maine Indian Settlement Act of 1980 signed into law by President Carter giving back over 200,000 acres to three tribes. Later the Narragansett and Mashantucket Pequot tribes sued for violation of said act as did the Catawba Tribe of South Carolina and all were granted lands for violation of said act. The Robideaux trading outfit based in Centropolis, Kansas, as licensed traders for the Sac and Fox Nation of the Mississippi River ripped off and intimidated the Sac and Fox Tribe and the US Government running lines of credit to steal lands and selling poisoned whiskey operating as a fraud ring and causing that Sac and Fox Nation to remove to Oklahoma between 1867 and 1886. Many Kansas tribes lost lands to fraud rings which Kansas politicians were often involved in. John Roberts acting as a clerk gave wrong advice on the Sherill V. Oneida Indian Nation case dismissing two centuries of land claims involving the Indian Non Intercourse Act of 1790 and the Oneida and Cayuga Tribes in N.Y. State. Nothing in response to history except snide uninformed comments. Maybe you should run for a tea party candidacy.

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Satirical 1 year, 9 months ago

Liberty...

If you would like, I could engage in a argument for the sake of argument to your ultimate question....

If I were arguing against your statement that the taxing authority grants a separate power that can make any government action Constitutional, when it would otherwise be Unconstitutional, I would argue that your examples (free speech, the right to privacy including abortions and being LGBT) are already specific rights in the Constitution (the right to privacy being implicit in its penumbra of course). Therefore, any effort to curb free speech would be met with the same burden on government (strict scrutiny, etc.).

However, the right not to be taxed because one breathes has never been read into the Constitution, therefore there is was no level of scrutiny to tangle with. It was simply a question of whether the government can use the tax code to compel action or inaction. So, I think your argument would have greater merit it if your examples were of something that isn't protected or prohibited by the Constitution (or hasn't been read into the Constitution).

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Mike Ford 1 year, 9 months ago

eight posts out of sixty seven posts....you're keeping your ego in check liberty... good job.

I asked this question of Mr. Katsis at the Dole Center Constitution Days meeting in September 2011 before he testified before the SCOTUS a couple of months ago.

There were a whole series of laws connected to the Indian Non Intercourse Act of 1790. One of the laws dealt with trade. Traders going into Indian Country had to be licensed with the US Government to do so. Mandated licenses. The Choteaus traded with the Kaw Nation in the early 19th century before removal. Without a license a trader couldn't do business in Indian Country. Tribes had to do business with these traders. Congress had plenary power over dependant states and tribes and traders under the Commerce Clause. Indian tribes dealt specifically with certain traders attached to them by federal licenses. What difference is there between this and the health care law? the person arguing in favor of the health care law said my question could wind up in a scholarly journal while the Katsis guy against the health care law had no answer. Was he beyond the scope of his right wing talking points? probably.

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Liberty_One 1 year, 9 months ago

Sixty plus comments and not one person can explain why if Obamacare is constitutional then why these other "taxes" wouldn't be constitutional as well.

The silence is quite telling. You folks have no idea what kind of monster you have created, or do you?

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ivalueamerica 1 year, 9 months ago

one trick pony.

Gay marriage....the sky is falling

Access to health care...the sky is falling

A black president...the sky is falling.

I can not imagine what it is like to live in your world of fear and hate and panic, but I am lucky, I have been able to avoid that and remain in reality.

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Alyosha 1 year, 9 months ago

It's simply incorrect, and evidence of ignorance of our country's history, and specifically the actions of the Founders, to believe and assert that the Federal government has not now, nor ever asserted, such power to compell citizens of the States to purchase something.

For instance, Congress enacted, and George Washington signed, an act mandating that "every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder."

Moreover, "In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[...] Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams."

See http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/06/26/george-washingtons-individual-mandates/

Everyone is free to disagree to disagree with the policies enacted in the PPACA, but to assert that it is an unprecedented power grab, or unconstitutional, puts you firmly in opposition to the Founding generations' understanding of the Federal government's power.

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Kontum1972 1 year, 9 months ago

well in a few more months we might not have to worry about all this crap....the Four Horsemen will be making their appearance....things are not looking good on this big blue marble....

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sourpuss 1 year, 9 months ago

Per the Constitution itself, if the SCOTUS deems that a law stands as Constitutional, then it is. The law was written and passed by one body, signed into law by a second, and upheld by a third. Let it go already.

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Satirical 1 year, 9 months ago

I think there isn't enough transfer of wealth from the young to the elderly. I mean it's not like we have Medicare, Social Security, or huge debt from institutions of higher learning. How else could we make the young even poorer? I got it! Make them pay for even more stuff that primarily benefits the elderly like universal health insurance. That's the ticket!

"Older Americans are 47 times richer than young Americans" http://money.cnn.com/2011/11/07/news/economy/wealth_gap_age/index.htm

The Baby Boomers are at War with the younger generation.

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Liberty_One 1 year, 9 months ago

So no one here has a problem when the republicans start placing taxes on things like abortions and non-Christians?

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Gotalife 1 year, 9 months ago

I am so sick of Republicans talking about nothing but Taxation...Get over it, pay your fair share, and help care for people who need it. Also, read the provisions. This is not a flat, across the board tax on everyone like conservatives are trying to say. The fear mongers need ideas of their own instead of constantly degrading and trash talking current administration ideas. And another thing, I find it really funny that so many conservatives think they know more than the Supreme Court.

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omgsmileyface 1 year, 9 months ago

If you dont take Part B of Medicare when you are first eligable you pay higher premiums when you do take it this is the same thing..... and alot of people dont know this and get screwed.... at least we all know unless you are living under a rock

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Bushloather1 1 year, 9 months ago

Anyone feel free to correct if I am wrong but wasn't Civil Rights Legislation ruled "Constitutional" under the commerce clause rather than the equal protection clause as most assume?

And it really doesn't matter does it?

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autie 1 year, 9 months ago

and another thing...if Congressmans voted up some of those hypothetical taxes you talk of I don't think they would stay around long.....until all of our Congressmans are nothing but the best government money can buy...when the PACs run the whole country and not just part of it....that's when the real revolution will begin.

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Alexander Smith 1 year, 9 months ago

Well here it is, most states..well I think EVERY state mandates car insurance. THis helps keep car insurance down and keeps the costs to the public at a minimum. NOW, the reason our medical is so expensive is 1.) its not kep in check and 2.) we are having to pay for those who don't because doctors/hospitals cannot refuse life saving treatment. SO we pay for it.

Now with mandated insurance its the same effect as mandated car insurance. What is the big deal. Also for those who are SO against it, stop being a paranoid-selfish-GOP and think how much is going to impact you on taxes. It is going to be so small that you might have to sacrifice 1 or 2 number 1 meals at McDonalds for a YEAR!

For a country that thinks it so great and equal and fair, I have never seen a country full of so many selfish-cut-throat-people (mostly GOP). We are America, we stand together, our constitution is "WE THE PEOPLE". Yes there are people that abuse the system, there is no perfect system. Also.. and this is the killer part.. all the people that are against it will be the first to pound their fists at the government for help when in need but they are the ones that don't want to pay higher taxes so that the government CAN do their job. A big chunk of the people who are against it are the same ones that have 200+K homes, 34k+ SUVs, iPads, iPhones, HUGE TVs, go out for StarBucks every day.. but yet won't sacrifice a few coins to the Salvation Army at Christmas or Pay a percentage point or two a year increase in taxes to help the Government do its jobs.

I was at a clinic last winter and a mother showed up with a child who was suffering from the Flu, the child was maybe 5 and was in pain. The mother was in panic and the clinic would see her if she had insurance if not she had to pay up front. She said she did not have insurance but could only pay 40 dollars. The clinic said they couldn't see her then and she would have to go elsewhere. The kid was in horrible condition and no one would help but myself and this old guy stood up and told her to stop. Both of us pitched in to help the lady out and we paid her bill so the child could get help. THIS IS the American SPirit, and with Obamacare she would of gotten help without us having to jump in. Those against the program ... think about it.. and think about it hard. Yes there are people that abuse the system but a huge chunk of the people out there are not and THINK of the kids and children who are suffering while you sit in your house watching cable TV or talking on your 150 dollar a month Cell phone.

And for those religious GOP conservative freaks.. what doyou think God has to say about those fighting it? Children suffer because you can't sacrifice a few dollars a year while you live the lifestyle you do now with iPhones, 40 inche TVs and daily visits to a coffee house? Not saying the Democrats are much better but in the end they are because THEY will at least sacrifice some luxury to help those in need.

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Roland Gunslinger 1 year, 9 months ago

What about a tax for failing to wear a seat belt?

Or a tax for driving to fast?

Oh wait... you mean the government can tax you for failing to abide by a law? Amazing.

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beatrice 1 year, 9 months ago

They have opened a can of worms with this tax, and if you look you can already see how those worms are starting to eat their way through the ozone and ... oh no ... it is true! ... The sky is falling! The sky is falling!!!! Everyone, run for your lives ... people will now be responsible for carrying insurance instead of allowing everyone else to pay their way!!! The horror, the horror....

I don't like so much of my taxes going to pay for the bloated defense department. Guess I should whine about it on a blog. That will show everyone what is what.

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pizzapete 1 year, 9 months ago

What about a tax on fear mongering?

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Liberty_One 1 year, 9 months ago

I would be happy to hear any different interpretations of the Court's holding and the reasoning behind that interpretation.

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