Charles Krauthammer, Obamacare may not be the law of the land as you assert!

On Thursday, February 21, 2013 while appearing on FoxNews Special Report, hosted by Bret Baier, Charles Krauthammer asserted that Obamacare was duly passed by Congress and is the law of the land. But our founding fathers were very careful to stipulate in our Constitution, and in crystal clear language, that our Constitution, and only those laws which shall be made in pursuance thereof, shall be the supreme law of the land. And so, since Mr. Krauthammer asserts Obamacare is ``the law of the land``, I would imagine he is capable of explaining why the following stated reasons are insufficient to establish that Obamacare has not been made in pursuance of our Constitution, and is therefore not the ``law of the land``.

Let us start with Justice Roberts’ opinion and determine what specific taxing power granted to Congress has been pointed to which will be levied in the enforcement of the “shared responsibility payment“. On page 41 of Roberts’ opinion he eliminates Congress’ direct taxing power and inadvertently goes on to also exclude a tax which may be laid upon incomes without apportionment. He writes: “A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”

According to Roberts, the shared responsibility payment is “triggered“ by a realization of “a certain amount of income”. But in fact, the subject of taxation under the individual mandate is not a realization of “a certain amount of income”. The subject matter being taxed under the individual mandate is a failure to have federally approved health insurance which triggers the tax, while a calculation of one’s “income” is then used to discriminate among citizens in the payment of the “shared responsibility payment”, and under such circumstances would not be “shared“ uniformly or equally among the citizens of the united States as required by our Constitution.

And in reference to the power to lay and collect excise taxes, excise taxes are those levied upon the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations, or upon a privilege granted by government such as a corporate granted charter.

Finally, we can exclude imposts and duties as being the taxing power resorted to for the “shared responsibility payment” because imposts and duties are taxes imposed on the import or export of goods.

Perhaps the above observations explain why Roberts never identified the specific taxing power [imposts, duties, excises, a direct tax, or a tax upon incomes without apportionment] which may be levied upon individuals for not having federally approved health insurance. Roberts merely indicated the shared responsibility payment is to be collected along with taxes on incomes, not that it is an “income tax”.

So tell us Mr. Krauthammer, of the specific taxing powers granted to Congress, which specific tax may be levied to collect the “shared responsibility payment” from individuals for not having federal approved health insurance, and be within the limitations of the taxing power selected?

The next reason why Obamacare appears to have no constitutional basis is because the people have never debated granting power to Congress to enter the various united States and regulate the people’s medical needs and health care choices. And the Ninth and Tenth Amendments were adopted with the specific intention “to prevent misconstruction or abuse of” of the new governments “powers”. And this fact is documented in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added .

Note that the Ninth and Tenth Amendments are among those “declaratory and restrictive clauses”, and in crystal clear language they reserves all powers not delegated to Congress to the people of the united States or the respective united States!

The irrefutable fact is, no such power can be pointed to under Article 1, Section 8, Clause 1 __ which enumerates the specific powers for which Congress was granted power to lay and collect taxes __ that allows Congress to enter the various united States and mandate what the people‘s medical and health care decisions shall be. And, the only lawful manner by which to delegate such power to Congress is under Article V of our Constitution. But Article V requires consent of the governed via the approval of the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof and this has not happened! So how has Obamacare been lawfully enacted into law? Is Congress clothed with authority to assume powers not granted?

Tell us Mr. Krauthammer. When have the people knowingly and willingly delegated to Congress the extraordinary power to meddle in their inalienable right to make their own medical and health care decisions and choices? Is this not exactly what Obamacare does? Is it not settled law that an act of government which impinges upon a fundamental right, is “presumptively unconstitutional”?

“It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.”___ City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)

So tell us Mr. Krauthammer, would you not agree that it is a fundamental inalienable right of mankind to be free to make one’s own medical and health care decisions and choices? And if you do agree, and then consider the various above stated objections to Obamacare, how can you conclude that Obamacare is a “law” made in pursuance of our Constitution or be “the law of the land“?

If the people of the united States do not rise up and defend the constitution they have given their consent to, who is left to do so but the very people who it was designed to control and regulate?

Good post, and I also am very happy to see FR back online! Thanks Jim and Company.

Laws can be reversed, this one will if the Reubplicans can take back the Senate and we get a solid conservative in the WH.

Since Marbury finding the constitutionality of law has been the province of SCOTUS. Jefferson and Madison sought earlier to declare that power as belonging to the states, but it was clear any state might find a law it disapproved of and create a constitutional issue to nullify it. That course would lead to disunion. SCOTUS has been accepted as the arbiter of the Constitution even though decisions like Scott and Plessy have not been just. Roberts reasoning in the current matter may be faulty and convoluted but under our current procedures for determining constitutionality his decision is the final word unless or until SCOTUS revisits the issue.

And what does that have to do with the legitimacy of Roberts' written opinion?

JWK

The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

I like your dissection of the ‘law of the land’ legality. I just wish some constitutional lawyers would put it in action and get this mess thrown out before its too late.

As to Krauthammer, he is not a lawyer and suffers the same ignorance of the application of the constitution as most of us. Scott in Florida stated it is the law of the land....and caved.

I fear it is already too late to do anything, especially with the nanny gov’t mentality that the majority seem to adore.

“Good post, and I also am very happy to see FR back online! Thanks Jim and Company.

Laws can be reversed, this one will if the Reubplicans can take back the Senate and we get a solid conservative in the WH.”
__________________________________________________

Yep!

I’m also very happy FR is up and running!

Justice Robert's sophistry may have made Obamacare "legal", but nothing will stop the utter chaos that awaits in its implementation. We are already seeing many people losing their employer sponsored health insurance and most of the states balking at creating the Health Care Exchanges. The cost of health insurance is going up so that it may become unaffordable to many people. The Health Care Exchanges which are to provide insurance to those who do not have an employer plan, cannot afford private insurance and make too much to qualify for Medicaid are to be up and running by October 1st of this year. There is no way that these Exchanges will be ready to offer plans, take premiums and pay providers by January 2014 as none currently exist and there is no funding for them. I expect that millions will find themselves uninsured next year and have no where to turn and then be caught in the Obamacare "tax".

A large segment of the American people who now have health insurance come next year will be standing in long line at free clinics.

mosts of the uninsured were simply millionaires and their dependents ~ about 40 million of them around before the Great Obama Recession.

I suspect the number of Americans without medical insurance is approaching 120 million now ~ and it will get higher.

Obama must have promised Kraut a souped up wheelchair if he started supporting ObamaCare

Liberal GOP love ObamaCare....do not be fooled folks. Note that the GOP is doing nothing to overturn ObamaCare

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Since "pursuance" can mean simply "the execution of something", this can be read to say "laws brought about by congress as it executes the law-making authority found in the constitution."

Now, as to whether or not John Roberts is wrong, I would agree with you. No way in the world is a penalty a tax any more than an imprisonment is a tax.

Therefore, on the point about the legality of Obamacare as the "law of the land", it is true that the law-making process was followed. Approved by House and Senate and signed by the president.

As to whether the law is constitutional, I continue to believe it is not, and 4 Supreme Court justices agree.

Fact, is Obamacare now a law? Krauthammer just stated the obvious. If anyone does not like it then why hasn't it been repealed. Want an answer? Because most of the ignorant Americans really don't give a shi!, and add the vast majority of Washington is in the same frame of mind. Got it!

The complete shi! has not hit the fan yet. Maybe soon.

This article purporting to state why Obamacare should not be considered "the law of the land" only barely scratches the surface.

The origination clause of the constitution also provides entirely sufficient grounds to strike the law down, assuming we ever get enough members of the SCOTUS with the spine to endure the scathing editorials which would appear in the Washington Post and the New York Times. (I'm not holding my breath.) If, as Roberts pretzel-twisting logic found, the mandate is a tax, and not a penalty, then the constitution mandates that the bill must originate in the House of Representatives. Instead, it originated in the Senate.

“I just wish some constitutional lawyers would put it in action and get this mess thrown out before its too late.”

Every lawyer in this country is educated and trained to protect THEIR system so I wouldn’t hold your breath.

Learn and exercise your Rights! They are yours, do you know them?

It is YOU who must stand up for your
Rights! Judge Alger Fee stated it very clearly in the case of
US v Johnson, 76 Fed.Supp. 538,
that your Rights are “neither accorded to the passive resistant, nor to the person indifferent thereto.” Furthermore Judge Fee stated that your Rights “cannot be claimed by attorney or solicitor” and are only valid “when insisted upon by a BELLIGERENT claimant in person.” His final warning was clear that “one who is persuaded by honeyed words or moral suasion to testify or produce documents… simply loses the protection” of your Rights!

Boy, I caught him last night and watched the total cave of Kraut...
He reminds us so often of the chipping away of our God-given rights yet seems to be the first one who caves...for an ex-shrink, he needs some analysis....

JWK, I wish you were there when Medicare came in. That was certainly no more constitutional than Obamacare, but only Barry Goldwater stood up against it. Government control of seniors’ healthcare is one of the things that got us into this mess.

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