Replace All Federal Taxes on Income with the Fair Tax Act , HR 25

Obamacare "Constitutionality" Demands Repeal Of Sixteenth Amendment

Obamacare "Constitutionality" Demands Repeal Of Sixteenth Amendment

The analysis below of the Supreme Court decision(s) is, as I told Howard Nemerov, Chair of Bastrop County Taxpayer's Association (BCTA) http://bastroptaxpayers.org/ (not his analysis, source not given), is superb and incisive.

Consider especially the last paragraphs, including the proposed now required constitutional amendment, one key sentence of which is:

The Sixteenth Amendment to the United States Constitution is hereby repealed.

This (16^th Amendment) is the basis of the income tax. He is suggesting that we no longer allow a federal income tax. Because congress has shown they will invent and proliferate taxes (to penalize citizens for their purchasing, earning, and other behavior, and the court under the present constitution thinks this is Ok). To protect against that, the American people must constitutionally remove the power of congress to tax as the politician / rulers see fit to buy votes (ABE commentary).

Those paragraphs (first) are:

Scalia seemed to concede that if Congress had merely passed a tax on the uninsured using all the same criteria laid out in Obamacare, then it would have passed constitutional muster. In his view, though, Congress didn’t, and it wasn’t up to the court to rewrite the statute for them to make it constitutional. Roberts in reaction viewed it as inappropriate to boldly strike down the law over a label. The alarming thing to me, is that no conservative sees this law as unconstitutional in effect, just most of the conservatives believed they didn’t go about it quite right. In other words, make a few semantic tweaks, and the conservatives would have had no argument against it.

That is a very dangerous place to be in. We now have a blueprint in this decision of how to regulate most things by taxation with unanimous consent of the Court. Written into the premise of these opinions are most of the things that have derailed in Constitutional jurisprudence where it comes to taxes and commerce. It is impossible therefore to rely upon the Court to defend constitutional liberty in a manner consistent with our views when they are so heavily laden with precedent that they feel they cannot get around.

What is the Solution?

The Court is always the weakest branch of government, and despite popular belief, never has the final say. The final say is always with the people and their elected representatives.

The Court has a history of taking language of the Constitution, and where understanding differs, wrestling with what the words were meant to mean. We have a decision tree handed down to us over centuries where precedence ropes us into an unpleasant corner inconsistent with our views of how the Constitution should have been interpreted. But we must be honest about the fact we have lost those cases, and we are where we are.

When you are dissatisfied with how a judge reads particular language, what is the cure? Provide clearer language. I believe therefore we should harness the present outrage, not only to repeal Obamacare (which is merely the present symptom of the problem), but to cure the disease. I propose a “Tax and Commerce” amendment to the US Constitution along the following lines:

Section 1 - Congressional power to regulate interstate commerce is limited to regulation of the channels of commerce, products or transactions that actually cross state lines, and persons while engaged in those transactions.

Section 2 - Congressional power to tax and spend for the general welfare is limited to the furtherance of an enumerated power of the Federal Government.

Section 3 - Congress may not condition any tax on, or any expenditure to, persons or states based on criteria that it does not otherwise have authority to demand from among its enumerated powers.

Section 4 - Congress must adopt an annual budget, without which Federal expenditures may not be otherwise authorized, and which budget must be, except during states of war declared by Congress, in balance each year between revenue and expense. During declared states of war, only expenditures expressly for the declared war may exceed budgeted revenue. When the United States carries debt, the annual budget approved by Congress must have more revenue than expense, with the excess revenue appropriated to debt reduction.

Section 5 - Any taxation of the citizens of the United States must be equally apportioned by State according to the census. The Sixteenth Amendment to the United States Constitution is hereby repealed.

Section 6 – All pre-existing statutes to the contrary will be void two years after final ratification of this Amendment.

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The complete analysis is below:

This was a patchwork quilt decision.

The reporting that it was a 5-4 decision with Roberts siding with the liberals is somewhat inaccurate. The Justices went every which way, and the majority opinion written by Chief Justice Roberts represents those issues where a majority agreed. But what Justices were in the majority differed issue by issue.

The Court held, apparently unanimously, that the Anti-Injunction Act (a Federal statute that bars lawsuits on taxes until after the tax has already been paid) did not prohibit this lawsuit from proceeding. They differed as to why, but the result was the same.

The Court held, with Roberts and the conservatives in the majority and the liberals in dissent, that it is unconstitutional to mandate economic activity and punish noncompliance with penalties. According to the conservative majority, the commerce clause is not that broad and far reaching.

The Court held, with Roberts and the liberals in the majority and the conservatives in dissent, that it is reasonable to construe the mandate-and-penalty found in the Obamacare law in the individual mandate not as a mandate-and-penalty but as a criteria for a tax. Roberts reasoned that the benign nature of the so-called penalty (no criminal enforcement and levies associated with failure to buy insurance) coupled with the fact that the “penalty” was to be paid as part of your income taxes to the IRS all together made it reasonable to construe that as a tax and not a penalty despite the plain language of the statute to the contrary. He reasoned that if a statute is subject to multiple reasonable readings, and one of those readings gives constitutional grounding where the other does not, the court must construe the statute in the light that renders it constitutional. The Conservatives on the other hand held it was unreasonable to construe the statute against its plain language and to do so is impermissibly re-writing the statute. To them, it was not whether Congress could have acted constitutionally, but whether in the statute before them the in fact did act constitutionally. Because Roberts believed it reasonable to read the statute as assessing a tax on the uninsured, he viewed that as a constitutional use of the Congress’ tax power.

The Court held, with Roberts, the conservatives, Breyer and Kagen in the majority and only Ginsburg and Sotomayor in the dissent, that Obamacare’s expansion of Medicaid that required all states to comply with the new regulations or lose all Medicaid funding that they had previously qualified for under pre-existing law to be unconstitutionally coercive.

The Court held, with Roberts and the liberals in the majority and the conservatives in dissent, that the Medicaid issue was severable (meaning it can be cut out without striking down the entire Obamacare law).

As you can see, the Judges were swinging their alignment issue by issue.

The Taxing Power Does Have its Limits.

Casting this as a tax puts the healthcare law in a precarious position, in my opinion. Robert’s interpreted the penalty as a tax because several factors were missing that, in his view, form the substance of a penalty. If any of those elements show up later, the question of whether the penalty morphs back into a penalty is wide open. On such a showing, Roberts would agree with the conservatives that the mandate-with-penalty should be struck down. Right now, Robert’s views this as a tax on your choice to not have insurance similar to the government taxing your choice to smoke. But if the amount charged rises high enough, or if they add other sanctions to your choice of not being insured, then Roberts would likely take a different view of it being merely a tax.

This Decision was not the Result of a Last Minute-Change on Robert’s Part.

The decision, including Robert’s opinion, Ginsburg’s dissenting opinion, the conservatives’ joint dissenting opinion, plus Thomas’ separate dissent all together form 193 pages. Each group’s opinion responds to arguments raised by the other groups. The Conservatives’ dissent picked apart Robert’s opinion concerning it being reasonable to construe the mandate and penalty as a tax. Roberts, in his own opinion, responded to their argument. On the issue of the Commerce Clause’s scope, Roberts and the conservatives in their respective opinions are pointing out and disagreeing with Ginsburg’s arguments to the contrary. This body of work was a collaborative effort weeks in the making that all the justices had opportunity to read and respond to.

Additionally, once all the justices are done with their say, it is delivered to the clerk for publication, and it is the clerk’s office that writes the syllabus summary of the outcome that appears at the top of the opinion. This opinion in its totality represents too much work for someone to have caved-in to remarks made this week by the President or others.

Some theorized yesterday that Roberts switched late because it appeared Scalia’s dissenting opinion was written as a majority opinion. An example is that he sometimes refers to Ginsberg’s opinion as a dissent. In fact, sometimes Scalia was in the majority because of the patchwork nature of this decision. On the issue of the scope of the Commerce Clause, Ginsberg was the dissent, and it is in that context that he refers to her as such. I believe these theories were born of a first-glance reaction to a large and complex decision.

Chief Justice Roberts thoughtfully arrived at his error, had his error challenged by fellow conservatives, and found their arguments unpersuasive.

Roberts is not the Smartest Guy in the Room Two Steps Ahead of the Rest of Us.

It has also been theorized that Chief Justice Roberts has some sophistry in mind, and he is masterfully working some grand scheme that we don’t all understand just yet. As much as I want to think well of the man, I reject the notion that his opinion is laced with undisclosed subtlety. It is what it is. He believes what he believes, and he has put to paper his thoughts. If he were a designing man, he needed only to side with the conservatives to kill Obamacare. If he were to do so, it is Kennedy, and not Roberts, who would have been the brunt of the reaction, for Robert’s position on the matter was a foregone conclusion in the minds of most of the public: conservative and liberal alike (excepting of course those rare few who called it as it occurred). Justice Kennedy was considered the crucial swing vote.

This argument would have more weight if Kennedy had swung in favor of Obamacare. Then it could be argued that Roberts, knowing they had lost anyway and wanting to do damage control, sided with the majority merely to assign to himself the task of writing the opinion and controlling how far off the tracks the train raced. But that is not the case. If his intention was to save Americans from Obamacare, he would have done so by siding with the conservatives. He didn’t. And he stated quite plainly that as long as he can find a constitutional basis for the statute to stand, it is not the Court’s job to save us from our own political decisions. That is up to us.

There is a Bigger Danger.

Now that the initial shock of Robert’s stance is wearing off, and now that I have read his decision and that of the conservative dissent. I see a far bigger danger. No conservative argued that as a tax, the individual mandate would still be unconstitutional. There is only a hair-breadth of difference between Robert’s view and that of the other conservatives (was it reasonable to construe the statute as a tax). That hair-breadth of difference, however, made a dramatic difference in outcomes in this case.