The statement that Obamacare is the law of the land seems to be repeatedly stated by “conservative” media personalities, such as Rush Limbaugh, Sean Hannity, etc.. It is almost as if they are intentionally trying to beat it into our heads that Obamacare is “the law of the land”. I have yet to find one “conservative” talk show host make an attempt to challenge that comment when there is a very, very strong case to be made that Obamacare is not “the law of the land”.
The truth is, Obamacare is a legislative act, H.R.3590 titled the: “Patient Protection and Affordable Care Act.” And, our Constitution tells us in crystal clear language that our Constitution, and only those “Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land ….”(see Article VI, Clause 2). And so, the question which must be asked and answered to determine if Obamacare is the law of the land is, was it made in pursuance of our Constitution?
For example, our Constitution commands under Amendment IX ”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This brings us to a fundamental question: Is it not a right retained by the American People to make their own medical and health care decisions and choices? And this question has been repeatedly answered by our courts!
It has long been settled law that a legislative act which "impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional." See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)
This brings us to the next question which is, do the American People have a fundamental right to make their own medical and health care decisions and choices. To answer this question let us take a look at Rivers v. Katz (67 N.Y.2d 485) 1986
The Court stated the following in its written opinion:
________
”In Storar, we recognized that a patient's right to determine the course of his medical treatment was paramount to what might otherwise be the doctor's obligation to provide medical care, and that the right of a competent adult to refuse medical treatment must be honored, even though the recommended treatment may be beneficial or even necessary to preserve the patient's life. This fundamental common-law right is coextensive with the patient's liberty interest protected by the due process clause of our State Constitution.
In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own..”
______________
In addition to the above mentioned opinion, let us not forget the Terri Schiavo case in which it was argued that Terri had a fundamental right to make her own medical and health care decisions, and a Florida Judge pointed out that it was indeed “presumptively unconstitutional" for the state to step in and interfere with this fundamental right, which is the right of one to make one’s own decisions regarding their medical and health care needs. This was never in dispute during the case. What was in dispute was whether Terri actually made the decision to refuse life support, or, did her husband invent that decision for her?
And so, to say “Obamacare is the law”, one would have to implicitly assert that making one’s own medical and health care decisions and choices is not a fundamental right secured by the Constitution, even though it has long been settled by our courts that it is a fundamental right and therefore, Obamacare is “presumptively unconstitutional“.
Our Constitution also declares under the Tenth Amendment ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”
This of course raises the question as to when the American People debated granting power to Congress to enter the various United States and regulate the people’s fundamental right to make their own medical and healthcare decisions and choices! And after having this debate approved the granting of this regulatory power within the limits of Article V of our Constitution, which is the only way for Congress to exercise new powers. Without this part of our Constitution being adhered to in passing the Patient Protection and Affordable Care Act it cannot be said to be a law passed in pursuance of our Constitution and is therefore null and void.
Finally, there is another question which has not been resolved. What specific tax mentioned in our Constitution is being levied as the “shared responsibility payment” which is often referred to as the individual mandate?
After a review of the constitutionally authorized taxing powers granted to Congress and the limits placed upon each specific kind of tax, the question arises as to which specific taxing power granted to Congress can be pointed to and be levied as Obamacare's "shared responsibility payment" and be within the limits of the specific tax pointed to?
Roberts never answered this question but merely indicated the individual mandate tax levied upon those failing to have federally approved health insurance is to be collected along with income taxes.
And so, a question arises as to which constitutionally authorized taxing power granted to Congress, when adhering to the constitutional limits placed upon it, can be pointed to and be levied as a "shared responsibility payment"?
We can immediately exclude imposts and duties as being the taxing power allowing the individual mandate tax because imposts and duties are taxes imposed on the import or export of goods.
And in reference to the power to lay and collect excise taxes, excise taxes can be levied upon the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations or upon a privilege granted by government such as a corporate granted charter. An excise tax may also be levied upon a particular piece of property or is use. But I cannot imagine the excise taxing power as it was understood and used by our founding fathers allowing it to be used to levy the Obamacare “shared responsibility payment”.
And with reference to the power to lay and collect taxes on “incomes” without apportionment, this taxing power requires a realization of profits or gains which then becomes the subject of taxation. But the subject of taxation under the individual mandate is not a profit or gain, collectively called “income”. The subject matter being taxed under Obamacare is a failure to have federally approved health insurance which triggers the tax and obviously excludes this taxing power to be used to levy the shared responsibility payment.
But we still have Congress’ power to lay and collect “direct taxes”, but direct taxes by our Constitution, require an apportionment among the States which Obamacare’s individual mandate tax fails to do.
When Roberts wrote that “The shared responsibility payment is thus not a direct tax that must be apportioned among the several States”, he totally ignored the historical characteristics which identify a direct tax as understood by our founders. In fact, the shared responsibility payment is characteristic of a direct tax! A review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders were familiar with and often referred to, we find the following reference regarding a capitation tax as being a direct tax:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.
The shared responsibility payment is in fact to be computed from the wages which a working person earns, and thus takes the form of a direct tax as understood by our founders, and thus requires it to be apportioned when levied!
There seems to be a consistency among the founders comments that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject. For example, Hamilton's brief in the Hylton carriage case which Roberts quoted says: 'The following are presumed to be the only direct taxes: Capitation or poll taxes, taxes on lands and buildings, general assessments, whether on the whole property of individuals, or on their whole real or personal estate. All else must, of necessity, be considered as indirect taxes.'
Is it not a fact that the shared responsibly payment is proposed to be assessed from a working person’s annually earned wage, and not upon a thing which the individual is free to acquire or reject?
And so, if Roberts was right and the individual mandate is an exercise of the taxing power, the question remains unanswered as to what tax authorizes Congress to enter a State and directly tax the people therein for not having federally approved health insurance? Unfortunately, not one of our “conservative” media personalities, to the best of my knowledge, and this includes Mark Levin who I am quite fond of, will lay out the above stated argument that Obamacare is not the law of the land, because only those laws made in pursuance of our Constitution can be said to be the law of the land!
The bottom line is, Obamacare is not the "law of the land". It is legislative tyranny backed up by judicial tyranny!
JWK
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___ Chancellor James Kent, in his Commentaries on American Law (1858)
Originally Posted by johnwk
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