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Health Care Constitutionality

The Obama Administration seems to be intent on arguing the health care mandate is a legitimate exercise of Congress’ taxing powers. But noted over at Volokh:

The tax is not an excise tax, and it could not be a constitutional excise tax because it is not uniform. The tax is not an income tax, and it could not be a constitutional income tax, because it is not a tax on derived income. Accordingly, the tax must be a capitation or direct tax. Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” The tax is not apportioned, and therefore is contrary to Article I, section 9.

I think the strongest argument is that the mandate is necessary and proper in order to carry out Congress’ national regulatory scheme of health insurance under its commerce powers. That’s not to say I think that argument is correct, but it seems to me that the tax argument is an easy loser, while there is at least a plausible argument for the necessary and proper clause supporting Congress’ commerce powers.

But hey, I’m not going to complain about the Administration hanging its hat on the wrong argument.

P.S. – Congratulations to Dave Kopel for his Emmy.

6 Responses to “Health Care Constitutionality”

  1. Harry Schell says:

    I guess they thought they could duck the dubious “Commerce Clause” problem and opted to fight on “tax” grounds.

    They probably did their homework on this bright idea as they did on SB1070.

    Too clever by half. Again.

  2. Fiftycal says:

    The only argument the socialists have for the “obammaocare” plan being “constitutional” is “becuz we said so”.

  3. Bram says:

    If only the long forgotten Ninth and Tenth Amendments were held with any regard by our elected officials or the courts. Like the Second Amendment, they were once held as the law of the land – the line that Congress could never cross. Then (like the Second) they were twisted about by lawyers and politicians until finally they were dropped altogether in favor of the Commerce Clause – a minor phrase in the Constitution that was never meant to trump the Bill of Rights.

    The Commerce Clause gave Congress the ability (not the REQUIREMENT) to regulate actual trade between the States. Do they really think James Madison wrote it thinking that it would give Congress the authority to choice my doctor and force the states to administer this intrusion into my life?

  4. Ian Argent says:

    Second case of the One’s Best and Brightest fighting the strongest enemy argument…

  5. Sebastian says:

    I’m not convinced the 9th Amendment has ever had the respect it deserves.

  6. Bram says:

    We used to elect Presidents who cared about the Constitution:

    “I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.”
    Cleveland’s Veto of the Texas Seed Bill
    February 16, 1887[88]

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