Although Nancy Pelosi responded with a glib “Are you serious?” to a reporter’s question about the Constitutionality of the Affordable Care Act shortly after the measure’s passage, her leftist comrades in the Department of Justice are not being dismissive of the issue any more.
In August, the 11th Circuit Court of Appeals ruled unconstitutional the “minimum coverage provision” or individual mandate which requires everyone purchase Obama-approved health insurance and penalizes those who do not. Judges Frank Hull and Joel Dubina of the 11th Circuit ruled that such an arrangement exceeds the power of Congress to regulate “commerce among the several states,” in this particular instance, commerce being the sale and purchase of insurance.
Obama’s legal brain trust had perhaps hoped the powers of Congress under the Constitution’s Commerce Clause would be enough to safely see ObamaCare through a flock of waiting appeals and into full operation. But Judges Hull and Dubina ended that bit of wishful thinking, writing a brilliant, decisive and thorough rebuke of the individual mandate in their 300 page opinion. And as their ruling conflicted with that of the 6th Circuit Court, a grant of certiorari by the Supreme Court to review the case was guaranteed.
The facts summoned up by Hull and Dubina will naturally have no effect on the 4 members of the Supreme Court Marxist left, but must carry great weight with thinking Court Justices.
And it for this reason that Obama’s Department of Justice has decided to enter a whole new argument into the Supreme Court sweepstakes.
Just as people in a panic often begin throwing everything within reach against a wall to see what might stick, DOJ lawyers have filed a brief with the Supreme Court, advancing a defense for the authority of Congress to legislate the individual mandate penalty which was unthinkable 2 years ago.
For in light of its potential failure to pass muster with Justices under the Commerce Clause claim, Obama’s troops are now referring to the mandate penalty as a TAX, reversing course 180 degrees on the proscribed use of the dreaded “T” word while the bill was being considered. After all, Obama had promised no tax increases on anyone earning under $250,000 per year!
Article 1 section 8 of the Constitution gives Congress the power to “…lay and collect Taxes, Duties, Imposts and Excises…” And although in the text of the law itself, reference to the penalty as a tax of any kind is expressly avoided, it is now the claim of Obama’s forces that Congress had intended it to be a tax all along! The fact that the penalty was called nothing but a penalty in the legislation shouldn’t matter.
Of course what KIND of tax it is supposed to be, the brief doesn’t say. There has never been a federal tax imposed for NOT doing something—not buying insurance, in this case. And the power of Congress to tax comes with very definite legal limits, proscriptions and requirements. Apparently, Obama’s brigade of lawyers intends to cross that bridge when they come to it.
Rest assured, Antonin Scalia and Clarence Thomas will see that they come to it.