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The Right Strikes Back: A New Legal Challenge for Obamacare
The Atlantic ^ | Sept 17 2012 | Jack M. Balkin

Posted on 09/17/2012 3:36:25 PM PDT by WilliamIII

They're baaack.

You probably thought that once the Supreme Court upheld the Affordable Care Act last June, the Act's constitutionality would be settled.

Not a chance.

The Pacific Legal Foundation, a conservative public-interest law firm, has opened up a new front in conservatives' never-ending struggle to wipe Obamacare off the books. Their secret weapon? The Origination Clause of Article I, section 7, which states that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." The key idea is that the Supreme Court recently upheld the individual mandate as a tax. But if the mandate is a tax, the PLF argues, then it is a bill for raising revenue. That means that the Affordable Care Act must have begun in the House of Representatives. And it did not.

The House passed a version of health care reform on November 7, 2009, and sent it to the Senate. Senators wanted to produce their own bill. The Origination Clause, however, requires that all bills for raising revenue must begin in the House, and health care reform included many new taxes, including the individual mandate. So the Senate amended another tax bill that the House had recently passed: H.R. 3590, which changed the taxation rules for servicemen and women buying new homes. It struck out the text of the existing bill, and inserted its new proposal as an amendment. This procedural maneuver is called using a "shell bill." This version of health care reform passed the Senate 60-39 on December 24, 2009.

(Excerpt) Read more at theatlantic.com ...


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: abortion; deathpanels; obamacare; zerocare

1 posted on 09/17/2012 3:36:26 PM PDT by WilliamIII
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To: WilliamIII

Good post!


2 posted on 09/17/2012 3:39:25 PM PDT by stephenjohnbanker (God, family, country, mom, apple pie, the girl next door and a Ford F250 to pull my boat.)
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To: WilliamIII

Seems pretty cut and dry. Unless the court wants to ignore the constitution. Nah, they wouldn’t do that.


3 posted on 09/17/2012 3:39:25 PM PDT by gotribe (WTF?)
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To: WilliamIII

Now we are getting somewhere.

Hey Roberts, explain to me where in the eff in the enumerated powers the federal government has the power to tax for purposes other than what is listed?

The plain answer is..he can not explain it, and they can NOT do it.


4 posted on 09/17/2012 3:48:09 PM PDT by crz
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To: WilliamIII

I’m afraid this is a dead issue. It will take a massive effort from both houses of Congress to get rid of ZeroCare.

Even If this rather tenuous looking basis for an argument Makes it to SCOTUS, remember that CJ Roberts shafted us by declaring, in effect, that Congress, now owns the Power to Tax us because of our Inactivity in entering the stream of Commerce.

If Roberts and the others have the gall to shovel That onto our plates, the House of Origination isn’t going to cut any mustard with him Either.

What we Need, is Originalist SCOTUS appointments, and we’re Not going to get them overnight and without a royal tooth and nail vetting battle.


5 posted on 09/17/2012 3:49:12 PM PDT by To-Whose-Benefit? (It is Error alone which needs the support of Government. The Truth can stand by itself.)
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To: WilliamIII

Unless Roberts is impeached. ... SOS.


6 posted on 09/17/2012 3:51:59 PM PDT by VRWC For Truth (Roberts has perverted the Constitution)
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To: To-Whose-Benefit?

Roberts and the liberal 5 will find a way to outfox these guys, IF they even listen to the argument. Our best hope is Romney and that is no sure thing either,even if he is elected.


7 posted on 09/17/2012 3:53:25 PM PDT by Venturer
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To: WilliamIII

This is a waste of time. The Constitution specifically says that the Senate has the right to amend revenue bills, which is what this is.


8 posted on 09/17/2012 3:57:27 PM PDT by Siegfried X
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To: WilliamIII

Roberts will say that while it is indeed a tax, it is not designed to raise revenue, only to cover costs of the program.


9 posted on 09/17/2012 4:01:09 PM PDT by Jeff Chandler (Whatever a homosexual union might be or represent, it is not physically marital. - F.Cardinal George)
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To: Venturer

our only chance there is with Ryan, he said last week on this issue they will repeal, then as the crowd was cheering he quietly said, “That is a Fact”, as if to reinforce to us his determination to do so. I do believe that man.


10 posted on 09/17/2012 4:07:07 PM PDT by annieokie (O)
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To: WilliamIII
Strong legal argument + strong pressure = Yes
Strong legal argument + weak pressure = maybe
Weak legal argument + strong pressure = maybe
Weak legal argument + weak pressure = No

This argument is not compelling under the current circumstances (demi-tyrant as President and eminent election) nor is anyone in congress capable of advancing the argument.

11 posted on 09/17/2012 4:07:57 PM PDT by Aevery_Freeman (All Y'all White Peoples is racist!)
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To: AdmSmith; AnonymousConservative; Berosus; bigheadfred; Bockscar; ColdOne; Convert from ECUSA; ...

Thanks WilliamIII.


12 posted on 09/17/2012 4:14:34 PM PDT by SunkenCiv (https://secure.freerepublic.com/donate/)
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To: crz
ey Roberts, explain to me where in the eff in the enumerated powers the federal government has the power to tax for purposes other than what is listed?

While he's at it, perhaps he can explain how, if the ACA it is a tax, the administrative branch then has powers to issue waivers at its discretion. Seems a total violation of the Equal Protection Clause of the 14th Amendment.

13 posted on 09/17/2012 4:20:25 PM PDT by Carry_Okie (The Slave Party Switcheroo: Economic crisis! Zero's eligibility Trumped!! Hillary 2012!!!)
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To: WilliamIII

bttt


14 posted on 09/17/2012 4:29:14 PM PDT by nicmarlo
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To: To-Whose-Benefit?

I don’t think that it will be as difficult as people think to get rid of 0-care. Although the legal and legislative challenges are daunting, the plan is simply economically unsustainable and impractable. With so many regulations, low reimbursement and rationing boards, providers will simply drop out of the system and create access problems so great that the system will implode. Meanwhile, costs will go out of control because of bureaucratic expansion that has nothing to do with health care delivery. A reversion to a direct pay system would be more likely at that point because the Federal government will simply not have enough money to enact a top down and fully socialized system.


15 posted on 09/17/2012 4:43:14 PM PDT by grumpygresh (Democrats delenda est; zero sera dans l'enfer bientot)
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To: WilliamIII

Damn those conservatives, wanting to follow the Constitution and all....


16 posted on 09/17/2012 4:44:43 PM PDT by SoFloFreeper
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To: WilliamIII

I am shaking with excitement!!


17 posted on 09/17/2012 4:51:16 PM PDT by diamond6 (http://catholicknight.blogspot.com/p/catholic-prophecy.html)
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To: Carry_Okie

In short..the whole Dam thing is unconstitutional and I demanded-I actually called my rep to demand that they haul Roberts in front of congress to have him explain how he came to that ruling. They can do that.


18 posted on 09/17/2012 5:12:31 PM PDT by crz
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To: diamond6

The PLF has won more cases that are complicated than many realize. Using a bill that is essentially a ‘shell bill’ to write Obamacare & get it thru the Senate is dead illegal.


19 posted on 09/17/2012 5:16:36 PM PDT by ridesthemiles
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To: crz
Hey Roberts, explain to me where in the eff in the enumerated powers the federal government has the power to tax for purposes other than what is listed?

In my opinion, Justice Roberts isn't a fool. He didn't get where his is by playing the fool either. He backed the Obama administration into saying it was a tax. I'm sure Roberts is (was) wondering when someone was going to set the hook and reel it in. He can't advise any body or organization that Obamacare isn't legal, he just left a welcome mat out with big flashing neon lights. If this doesn't work, Obamacare was passed on a "Reconciliation Vote". A reconciliation vote can only used for budget bills, so there is another angle to kill Obamacare.

20 posted on 09/17/2012 5:29:08 PM PDT by Traveler59 ( Truth is a journey, not a destination.)
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To: Traveler59

Roberts got bullied by the Left. Period. End of story. You did read where the other 4 conservative justices sat Roberts down and asked him to explain his ruling....and he could not ? Did you notice the disgust in justice Kennedy’s face at the final hearing on Obamacare ? Get over this nonsense, please.


21 posted on 09/17/2012 5:37:23 PM PDT by LongWayHome
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To: WilliamIII

Great post! I think by the comments the article was not read in its entirety.

The limp wristed Establishment is hardly known for making a damn thing an “issue”, which is required for this to get to the Supreme Court, which otherwise can’t be looking forward to another round on this subject.

Waiting and watching, ad usual.


22 posted on 09/17/2012 5:43:00 PM PDT by RitaOK ( VIVA CHRISTO REY!)
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To: Traveler59

Thank you.


23 posted on 09/17/2012 5:45:48 PM PDT by netmilsmom (Romney scares me. Obama is the freaking nightmare that is so bad you are afraid to go back to sleep)
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To: annieokie

I believe Ryan will try.
But VP’s are pretty well known to have little power unless there is a tie.


24 posted on 09/17/2012 5:45:48 PM PDT by Venturer
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To: Traveler59
If this doesn't work, Obamacare was passed on a "Reconciliation Vote". A reconciliation vote can only used for budget bills, so there is another angle to kill Obamacare.

Precisely. I have always thought that this was the weakest link in the legal gymnastics they used to pass the monster. If the mainstream media was a genuine and ethical industry and reported this properly, there would have been an country-wide, thunderous uproar that should have stopped it then and there.

25 posted on 09/17/2012 5:53:32 PM PDT by Tamzee (The U.S. re-electing Obama would be like the Titanic backing up and ramming the iceberg again.)
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To: LongWayHome
Did you notice the disgust in justice Kennedy’s face at the final hearing on Obamacare ? Get over this nonsense, please.

You're not a poker player are you? Just a hint, don't start because you'll lose the shirt off your back. Bluff, dodge, small ante, raise a bit, and see who'll go all in... Then you slam the door. The Obama administration cannot go back and say this isn't a tax now. And while the likes of Pelosi and Reid are patting themselves on the back and congratulating themselves, they're about to get their heads handed to them. This is all predicated on how well the Pacific Legal Foundation gets its legal briefs together.

26 posted on 09/17/2012 6:07:36 PM PDT by Traveler59 ( Truth is a journey, not a destination.)
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To: Traveler59

The supreme court isnt to play politics. It is there to defend the constitution.

Roberts violated his oath.


27 posted on 09/17/2012 6:17:59 PM PDT by crz
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To: Venturer
Yeah, I know, but somehow this looks different. They seem to be a perfect team, neither are arrogant or self centered, and both respect the other.
28 posted on 09/17/2012 6:18:32 PM PDT by annieokie (O)
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To: Traveler59

The greatest bluff in history.....sure it is.


29 posted on 09/17/2012 6:20:11 PM PDT by LongWayHome
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To: WilliamIII
The problem is, once it gets to the SCROTUS, Roberts will decide it is NOT a tax AFTER ALL, so.... Obamacare still stands.

This way, he gets to keep his children, and the threats that made him change his vote do not need to happen.

30 posted on 09/17/2012 6:27:05 PM PDT by Lazamataz (RAGE MONKEY RULEZ!!!)
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To: crz

Roberts being the smart ass that he is may have deliberately have ruled the way he did, calling it a “tax”, knowing this would be a problem for Obama.


31 posted on 09/17/2012 6:28:24 PM PDT by diamond6 (http://catholicknight.blogspot.com/p/catholic-prophecy.html)
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To: Lazamataz
After the last Obamacare ruling it should be obvious to all that we didn't the case, we lost the court. Roberts is our enemy and he controls the court.

Forget about it. The best course of action is to avoid the Supreme Court of the USA with any and all important issues because conservatives will only lose there.

You've got Alito, Thomas, and Scalia as the defenders of the constitution. Roberts and Kennedy in the squishy moldable (buyable) middle, and four rock solid votes against the US Constitution even being a viable document.

We should impeach all nine of these people before we feel forced to do something that would really be rude to them.

32 posted on 09/17/2012 6:57:48 PM PDT by WhoisAlanGreenspan?
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To: WilliamIII

We are reduced to begging for our rights for that is all we are doing here with this legal challenge before the Federal employees.

The 9 hand picked Federal employees are as a body corrupt oligarchs selected for the propose of serving Washington and that is exactly what Traitor John did with his edict. There is nether logic nor justice in that building only tyranny.

Beg all you like, but never forget that is all you are now doing, begging for a return of just a few of God given rights Washington has usurped from us.


33 posted on 09/17/2012 7:01:06 PM PDT by Monorprise
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To: WilliamIII

Exercise in futility, the court will just rule that they are free to break the rules if they want to. Color me resigned.


34 posted on 09/18/2012 1:02:46 AM PDT by itsahoot (I'll write in Palin in 2012. That is 1 vote for Palin, 0 votes for Romney and Zer0 votes for Obama.)
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To: grumpygresh

Thanks for you Optimism, but, our great great grandchildren are $16 Trillion in debt now.

The “system” not having enough money isn’t going to stop them in any way shape or form.

They’ll simply Officially devalue the currency like the South American Banana Republics do to make it Official that America is now THEIR Banana Republic.


35 posted on 09/18/2012 7:26:34 AM PDT by To-Whose-Benefit? (It is Error alone which needs the support of Government. The Truth can stand by itself.)
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To: crz

He went too far.

The courts role here was only to decide if the law AS IT WAS WRITTEN was Constitutional.

The role was not to re-write the law, or say “Well, it’s ok if you move this here or call this that...” or to give legislators ideas about how to improve/fine tune it.

I don’t think that whether or not it could be called a tax was even part of the appeal from the 11th circuit...


36 posted on 09/18/2012 7:32:18 AM PDT by djf (Political Science: Conservatives = govern-ment. Liberals = givin-me-it.)
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To: Carry_Okie

“total violation of the Equal Protection Clause of the 14th Amendment.”

You’re correct. Equal Protection arguments also include the 5th’s Due Process of Law clause which is completely missing from Robert’s decree.

Roberts and the others can wash it through as many precedents as they want, but Congress is NOT empowered to Tax the Inaction of Citizens failing to enter the stream of Private Sector, Legal Commerce.

Both Procedural and Substantive Due Process are completely Missing from Roberts Decree.

Substantive because of Equal Protection and Procedural on a Host of Substantive Outcome issues (including the waivers) being swept aside/ignored BY the Court which doesn’t possess the authority to ignore them.

If Roberts pulled this stunt Knowingly to Anger enough Americans to vote Zero and his crowd Out in Nov, even though no one will ever Prove Roberts intended it, that’s one Whopper of an abuse of Process on his part which we All could have done without.

Roberts knew better. They All knew better. And this would have been Far better for All of us if they’d just Done what they’re Seated to do which is uphold the Constitution, NOT Politic it with Roberts possibly scheming to get the electorate woken up through his abuse of his Office.


37 posted on 09/18/2012 7:48:06 AM PDT by To-Whose-Benefit? (It is Error alone which needs the support of Government. The Truth can stand by itself.)
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To: grumpygresh

And how many will die?


38 posted on 09/18/2012 2:22:07 PM PDT by Scarlet Pimpernel (And what rough beast, its hour come round at last, Slouches towards Bethlehem to be born?)
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To: To-Whose-Benefit?

People will not work for Weimar marks, Zimbabwe dollars or 0bama dollars. So, devalued currency will not purchase quality healthcare. You pretend to pay, we will pretend to work.


39 posted on 09/18/2012 6:12:03 PM PDT by grumpygresh (Democrats delenda est; zero sera dans l'enfer bientot)
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To: To-Whose-Benefit?
If Roberts pulled this stunt Knowingly to Anger enough Americans to vote Zero and his crowd Out in Nov, even though no one will ever Prove Roberts intended it, that’s one Whopper of an abuse of Process on his part which we All could have done without.

If he did, then he quite apparently over-estimated the people in translating that to restructuring the Congress. Hell, nobody has been that up in arms about the procedure in which CommieCare was passed in the first place. Nor is it within the scope of the courts to play political games with the law. That he felt within his latitude to do so is most concerning with regard to what else he might do in the coming years.

40 posted on 09/19/2012 6:52:26 AM PDT by Carry_Okie (The Slave Party Switcheroo: Economic crisis! Zero's eligibility Trumped!! Hillary 2012!!!)
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To: LongWayHome

“bullied” is probably putting it mildly.

Someone he cares about was threatened with lethal retaliation, by someone too powerful to expose.


41 posted on 09/19/2012 6:56:44 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working fors)
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To: Scarlet Pimpernel

What do you mean by that?
That direct pay will result in people dying, or that this is the talking point the left will use?

I would assert that more people would die unnecessarily under the mandates of the board that decides who gets what than under direct pay.


42 posted on 09/19/2012 6:58:58 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working fors)
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To: WilliamIII
What Obama and Romney, and the Roberts court, all completely ignore:

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."

-- James Madison, the father of the U.S. Constitution


43 posted on 09/19/2012 7:27:45 AM PDT by EternalVigilance ("The opposite of compromise is character." -- Frederick Douglass)
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To: EternalVigilance; gotribe; crz; VRWC For Truth; Venturer; Siegfried X; Jeff Chandler; annieokie; ...

http://www.constitution.org/jm/18170303_veto.htm

Veto of federal public works bill

March 3, 1817

To the House of Representatives of the United States:

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

James Madison,
President of the United States


44 posted on 09/19/2012 8:27:07 AM PDT by To-Whose-Benefit? (It is Error alone which needs the support of Government. The Truth can stand by itself.)
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To: To-Whose-Benefit?

You betcha.


45 posted on 09/19/2012 9:15:49 AM PDT by EternalVigilance ('Conscience is the most sacred of all property.' -- James Madison)
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To: To-Whose-Benefit?
Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust.

James overlooked the Good and Plenty Clause, that was hidden in there.

46 posted on 09/19/2012 9:36:11 AM PDT by itsahoot (I'll write in Palin in 2012. That is 1 vote for Palin, 0 votes for Romney and Zer0 votes for Obama.)
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