I believe that the commerce clause cannot be invoked here to justify 0bamacare. All the commerce clause cases involved a commodity and a health insurance policy is not a commodity it is a contract that only has value between the parties to the agreement.
Bur what about the tax argument? The mandate is not an income tax but, I have seen it described as a capitation tax-a tax on the whole person. Apparently, a capitation tax is to be apportioned among the states on the basis of census population.
I wonder if anyone has any further specific knowledge on this subject.
The Constitution (ARTICLE I) forbids a capitation inless it applies equally to everyone in the Census. Obamacare’s mandate is a penalty, which only applies to those who do not comply with the mandate and even exempts some of those who are incarcerated or who cannot afford it. It is not a constitutionally permissible capitation. See below:
“No Capitation, [or other direct,] Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
COMMENTARY:
A capitation is a tax collected equally from everyone. It is also called a head tax or poll tax. The Supreme Court held that this section prohibits an income tax, but the 16th Amendment set aside the effect of the court’s decision.
The Amish and Muslims are exempted from the mandates. Is that a violation of separation of church and state. The state is picking two religions over the beliefs of the others. It looks like to me an establishment of a religion. Their conscious clause is intake but not for pro-life believers.
The definition of “commodity” notwithstanding, Congress had previously stipulated that the scope of any health insurance product is wholly intrastate. The present bill is an attempt by Congress to regulate something that doesn’t exist; all intrastate commerce must be uniform in an interstate manner.
How is that any different than Congress regulating State highway and private bridge tolls? Or that all cable vendors must offer specified programming and fees? Quite frankly, where, when and for what purpose you go from place A to B would also fall into said purvue.