Obama Care and the expansion of federal power
The penalty tax
In a 5-4 decision, a divided Supreme court upheld President Barack Obama's signature issue; the government take over of healthcare. The decision was surprising not for it's closeness but for the decision to uphold the mandate under the spending clause while limiting governmental power under the commerce clause. The court's Chief Justice declared that the "penalty" for not purchasing health care insurance was indeed a tax governed under congressional power to tax. The administration while claiming publically that the "penalty" was not a tax never the less argued in their brief that it was, yet their argument on the spending clause was not their chief argument.
The Chief's Justice's opinion was written to salvage legislation instead to checking federal power consistent with the constitution. The strongly worded dissent made that clear.
"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril... Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."The court decision will reverberate in the Presidential election only four months away. As the law is considered a tax, what is the extent of congressional power? Is it unlimited? Well certainly when the legislative branch decides to regulate inactivity with the use of a tax. Congress can decide that every homeowner needs to have solar panels on their home or face a tax to force compliance. Even though the court declared a limitation to congressional power through the commerce clause, the court disregarded the history of our founding; the limitation of federalism. Granting government unchecked power to tax is to ignore the very basis of the American revolution.
In MuCulloch v. Maryland 1819, Chief Justice John Marshall wrote a majority opinion upholding the federal government's power to create a federal bank and limiting states from impeding federal power by taxing the federal bank. The Chief Justice understood that the People must have confidence in their government with the power to tax so as not to abuse that power. He acknowledged that this power can be destructive; "the power to tax is the power to destroy".
During the congressional debate, the Senate determined that the legislation should define the cost of failing to comply as a "penalty" versus a tax. So in order to pass the bill, the Senate needed 60 votes to over come a filibuster. As the Supreme Court has determined that the "penalty is now a tax, a simple Senate majority is required to pass a repeal for a budget reconciliation bill. The House has already scheduled a repeal vote on July 11th. As the President supports the law and his opponent Mitt Romney has vowed to repeal it, this issue has become the defining issue of the November election.
While the court's decision is shocking, there is one final check and balance that is not part of the three branches of government, the People.