Just Plain Wrong

 Posted by at 7:37 pm
Jun 302012

In my last post, on June 1, I predicted that the ironically-named Affordable Care Act would be struck down as unconstitutional.  I was just plain wrong.

I was correct that the law violated the commerce clause, which was the primary authority on which the government based its argument.  I also opined that at least one liberal justice would concur in the “violates the commerce clause” point, but would provide that the Act may pass constitutional muster under Congress’ taxing/spending power.  My exact words were:

The liberal justice(s) who joins the majority, will write his/her own opinion(s) in which they concur in the majority decision but reason that, while the United States may not nationalize health insurance/medical care under the commerce clause, it may do so pursuant to its taxing/spending power.  As a side note, while this may be a more legitimate constitutional argument then the commerce clause justification, it will require politicians selling it to the American people.  Remember “Hillarycare?”  Not bloody likely.

It never occurred to me that Chief Justice Roberts would agree with the taxing power justification because it never occurred to me that this justification could be found in the actual case before the court.  At oral argument – and I assume in its briefs to the court – the government did argue that the law was a tax; however, this argument was not made to justify the Act’s constitutionality but only to suggest that the case lacked ripeness.  Under the Anti-Injunction Act of 1867, one must actually pay a tax before a tax may be challenged.  The government’s argument wasn’t that the Act is a constitutional use of Congress’ taxing authority, but that the Act couldn’t be challenged until the tax was paid – and the tax won’t be paid until 2014.

It was also unexpected that a law that lacks any language declaring it a tax, and in fact calls the “tax” a “penalty,” could be construed by the Court to be a tax.  Under the Act’s mandate (i.e.: “tax”), individuals are “taxed” when they don’t purchase something.


The Act is constitutional as currently construed by the Court.  Regarding the ultimate result, I was just plain wrong.  But, in my view, so was the Court.

I suppose I could go on and complain about the law’s attack on liberty and the road to serfdom, but that and $7.50 will only get me a ticket to a movie . . . for a matinee . . . on a senior discount.  Hmm, I wonder if I’ll be taxed for not buying that ticket . . .

I’m not whining, I’m moving on . . . to repeal.


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