WHY ROBERTS WAS WRONG (Part 1)
A (one of more than one) material defect in the opinion of the court (Roberts, opinion for the court) in the “Obamacare” Supreme court decision on Constitutionality, lies with his inconsistent reasoning that a) Congress lacks constitutional authority under the commerce clause to impose a requirement that citizens do something to engage in interstate commerce, notwithstanding Congress’s emphatic recitation of generalized future ‘effects on commerce’ arising from the citizens inactivity; BUT, however, according to Roberts (on behalf of the court) b) The applicable section of the law (mandate) may fairly be read as an exercise of valid Congressional authority under the Constitutional power of taxation.
Below are the essential portions of the applicable provision of the “Affordable Healthcare Act” which under Sec 1501 of the law, imposes the mandate and directs amendment of the Internal Revenue Code (Sec 5000A) to provide for the penalty provision for non-compliance with the mandate. The amended law provides that upon a failure of the taxpayer to comply with the unlawful mandate (summarized in 5000A(a)) then under 5000A(b) “Shared Responsiblity Payment” the non-complying citizen is made liable for the “penalty” to be administered and collected by the IRS.
That is, according to the Court, a nominal “penalty” (of up to 8% of tax payers income and estimated to be as much as $40B annually throughout the US), explicitly based upon a mandate which Roberts found Congress has no power to make (implicity he is saying they had to power to simply say all persons not having min req. coverage are free to do so, however, such persons are by act of Congress made liable for the following tax liability) may be Constitutionally imposed because of and under the authority of Congress’s enumerated power to lay and collect taxes.
But Congress could not have been more explicit about establishing the mandate under its REGULATORY powers nor about basing its PENALTY upon the condition of NON-COMPLIANCE with its unconstitutionaly established mandate to buy health insurance. It is in this context that Roberts may have been said to have re-written the law, rather than passed judgment upon it. In other words, even if one rationally believed exactly as Roberts did about the Constitution, would not the more approproiate action given the statutory language to have been to send the law back to Congress to let them decide if they wanted to revise the offending provisions to be explicity modified so as to comply with existing Congressional powers to authority a true tax, not based upon non-compliance with an unconstitutionaly imposed mandate. In effect Roberts gave deference to a Congress that had already been rejected by a majority of the American people (the 2008 Congress) and disdained the current Congress’s authority (as well as the people who elected them) by not allowing the current CONGRESS to solve the defect in the law, and by reserving to himself the authority to decide how to save a discredited act of a discredited Congress
Subtitle F.Shared Responsibility for Health Care
PART I.INDIVIDUAL RESPONSIBILITY
SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
(a) FINDINGS..Congress makes the following findings:
(1) IN GENERAL..The individual responsibility requirement
provided for in this section (in this subsection referred to as
the eerequirementff) is commercial and economic in nature, and
substantially affects interstate commerce, as a result of the
effects described in paragraph (2)....
5000A. Requirement to maintain minimum essential coverage.
SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE..
An applicable individual shall for each month beginning
after 2013 ensure that the individual, and any dependent of the
individual who is an applicable individual, is covered under minimum
essential coverage for such month.
(b) SHARED RESPONSIBILITY PAYMENT..
(1) IN GENERAL..If an applicable individual fails to meet
the requirement of subsection (a) for 1 or more months during
any calendar year beginning after 2013, then, except as provided
in subsection (d), there is hereby imposed a penalty
with respect to the individual in the amount determined under
subsection (c).
(2) INCLUSION WITH RETURN..Any penalty imposed by
this section with respect to any month shall be included with
a taxpayerfs return under chapter 1 for the taxable year which
includes such month.
(3) PAYMENT OF PENALTY..If an individual with respect
to whom a penalty is imposed by this section for any month.
ee(A) is a dependent (as defined in section 152) of
another taxpayer for the other taxpayerfs taxable year
including such month, such other taxpayer shall be liable
for such penalty,...
Are there minimum standards and parameters of coverage that will qulaify so someone doesn’t pay a tax or do you just have to have something that says “This is a medical insurance policy.”
I’m assuming that the Fed act does set minimums so the individual citizen who tries to meet them will be paying a sizable insurance premium—in lieu of a tax—but nobody is talking about this premium.