Can Congress Tax Americans on the Right to Breath?

(Editor's note: This is the second of two columns on the constitutionality of Obamacare.)

Last Thursday, I opined that the U.S. Supreme Court will uphold The Patient Protection and Affordable Care Act (Obamacare) under Congress' power to provide for the general welfare.

The second issue, is this: Did Congress under Article I, Section 8 have the power to fund Obamacare by imposing an individual mandate? That is, does Congress have power to require every American (or their employer) either to purchase health Insurance from a health insurance carrier or to pay a fine?

There is, of course, the possibility that the court will uphold the legislation under the commerce clause. But is an American reading a book in his own living room engaged in interstate commerce? Can it fairly be said that because 20 or 50 years from now, he may be unable to pay for hospital care, and that the government may be required to pay those bills, that he is presently engaged in interstate commerce? Or that his present conduct affects interstate commerce?

Does the power to regulate interstate commerce give Congress power to require individual Americans to engage in commerce -- that is, to buy insurance? I don't think so.

It is one thing to regulate the conduct of someone engaged in or intending to become engaged in the near future. It is a very different thing to tell someone that he must get engaged in interstate commerce.

The commerce clause argument in favor of the individual mandate, however, is also premised on Congress' additional power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

It will be argued that the individual mandate has been determined by Congress to be "necessary" or "proper" to support the health care scheme. When an America has health insurance, that limits the risk that the government, somewhere in the future, will be required to pay that American's health care bills, or, at least, substantial portions thereof.

It can be argued that if an American refuses to buy such coverage, the penalty will create a fund which the government can use to pay his uncovered bills. But if that were the case, then the "penalty" is very much like a "tax," (I am using the word "tax" in its everyday nontechnical sense.) To put it another way, forcing someone to pay money to the government to provide a fund to help the government deal with health care costs looks to me to be more in the nature of an exercise of the "taxing" power," than a "regulation of commerce."

Therefore, it seems to me that if the individual mandate is to be upheld, the justification will again have to be found in the taxing power. Congress clearly has ... "power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States." Note, there is no mention that Congress has power to collect penalties to provide for the general welfare.

So, is the individual mandate a tax? A duty? An impost? An excise? As used in Article I, Section 8, the word "tax" is used in a technical sense. In common parlance, we refer to duties, imposts and excise as "taxes." But in Article I, Section 8, a "tax" is something other than a duty, impost or excise.

Section 8 clearly provides that "Congress shall have the power to lay and collect taxes ... to ... provide for ... the general welfare." But as requiring someone to buy insurance is not a tax on "income," the 16th Amendment, which allows Congress "to lay and collect taxes on incomes, from whatever source derived, without apportionment among the states, and without regard to any census or enumeration," clearly has no application.

And if it is a "tax," it is clearly unconstitutional because Article 8 provides, "No capitation, or other direct tax (as opposed to a 'requisition') shall be laid unless in proportion to the census or enumeration herein before directed to be taken." And whatever else can be said about the individual mandate, no one has claimed that it was created "in proportion to the census."

Additionally, it is obvious that the individual mandate is not a duty or and impost. Duties and imposts are levies on goods imported into the U.S.

So, if it isn't a tax ( in the constitutional sense), a duty or an impost, then to be authorized by the Constitution, it would have to be an excise. Is it?

An excise is a tax on doing something. It can be a tax on the production, use, sale or transfer of goods. Or it can be a tax on doing business, on the right to employ another, or on earning income. It can be a tax on passing one's property to an heir or legatee at death. So, if it is an excise, what "doing something" is being taxed? Breathing? Living? Being a citizen? Will the court for the first time say that Congress can lay and excise on the privilege of "being an American?" Or can Congress levy an excise on the privilege of "doing nothing" (not buying insurance)?

And of course, while Congress has been given "power to lay and collect taxes, duties, imposts and excises," neither that section nor any other empowers Congress to require Americans to buy goods or services from anyone.

The court will find that Congress has power to provide for national health care. It seems to me that Alexander Hamilton's argument will again prevail, just as it prevailed when the U. S. Supreme Court upheld Social Security in the 1930s.

So, I think the constitutionality of the act will turn on my second question: Can Congress lay an excise on the right of Americans to breathe, live, or to be Americans?

The court never has said Congress has that power up until now. I am guessing it won't do so now. If it allows the funding penalty to stand, it will have to say that an excise can be a tax on"doing something, and even on doing nothing.

If Congress has such power, bye, bye liberty. It could require every American to purchase insurance coverage from the day he is born until the day he dies. And it could then also tax eating, sleeping, breathing .....

But given the fact that our forefathers came to America in search of liberty, it is really hard to believe that they gave Congress power to tax their right to breathe or be Americans.



Posted Online: Dec. 14, 2011, 2:30 pm - Quad-Cities Online

by John Donald O'Shea

Copyright 2011, John Donald O'Shea

Will the Supreme Court Uphold Obamacare? Part 1

The U.S. Supreme Court has agreed to hear arguments on whether The Patient Protection and Affordable Care Act ("Obamacare") is constitutional.

The high court has stated that it will rule on the issues by July 4, 2012. As I see it, the court will consider two principal issues:

-- Could Congress rationally determine that it had power to create a national health care system (and that it needed to do so), and

-- Could Congress fund the system, by requiring Americans (or their employers) either to buy their own health insurance, or to pay a penalty.

Whether the legislation will be declared "constitutional" or "unconstitutional," will probably be based on the court's reading of Article 8 [1] of the U. S. Constitution, which provides:

"The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States;"

The first issue is this: Could Congress fairly conclude that it might pass Obamacare (and needed to do so) in furtherance of the general welfare?

Arguments on that issue were first made almost immediately after our constitution was adopted. Those who argue that the law should be upheld will in all likelihood cite the 1791 Report on Manufactures to the House of Representatives by Alexander Hamilton, the first secretary of the Treasury.

"The National Legislature has express authority 'to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare,' with no other qualifications than (a) that 'all duties, imposts and excises, shall be uniform throughout the United States; and (b) that no capitation or other direct tax shall be laid, unless in proportion to numbers, ascertained by a census or enumeration, taken on the principles prescribed in the constitution, and (c) that no tax or duty shall be laid on articles exported from any State.'

"These three qualifications excepted, the power to raise money is plenary and indefinite, and the objects to which it may be appropriated, are no less comprehensive than the payment of the public debts, and the providing for the common defence and general welfare. The terms 'general welfare' were doubtless intended to signify more than was expressed or imported in those which preceded; otherwise, numerous exigencies incident to the affairs of a nation would have been left without a provision The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the "general welfare;" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

"It is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. ... The only qualification of the generality of the phrase in question, which seems to be admissible, is this: That the object, to which an appropriation of money is to be made, be general, and not local; its operation extending, in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

"No objection ought to arise to this construction, from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the general welfare. A power to appropriate money with this latitude, which is granted, too, in express terms, would not carry a power to do any other thing not authorized in the constitution, either expressly or by fair implication."

Those, on the other hand, who believe the law to be unconstitutional will probably reference the writings of John C. Calhoun, especially his South Carolina Exposition and Protest of 1828. (Note, however, that Calhoun's position squares rather nicely with the last paragraph of Hamilton's report. But Hamilton's last paragraph has been largely forgotten or ignored by Congress and the courts.) Calhoun wrote:

"It is a bold and an unauthorized assumption, that Congress has the power to pronounce what objects belong, and what do not belong to the general welfare; and to appropriate money, at its discretion, to such as it may deem to belong to it.

"No such power is delegated to it -- nor is any such necessary and proper to carry into execution those which are delegated.

"This (the Constitution) pronounced to what limits the general welfare extended, and beyond which it did not extend.

"To prove, then, that any particular object belongs to the general welfare of the States of the Union, it is necessary to show that it is included in some one of the delegated powers, or is necessary and proper to carry some one of them into effect -- before a tax can be laid or money appropriated to effect it.

"For Congress, then, to undertake to pronounce what does, or what does not belong to the general welfare -- without regard to the extent of the delegated powers -- is to usurp the highest authority -- one belonging exclusively to the people of the several States in their sovereign capacity. "

I think Congress could fairly find that health care is a "nationwide" issue, and not merely a "local issue," and that it therefore could enact health care legislation in an effort to provide for the "general welfare." In the 1930s, Congress determined that it could provide for old-age pensions (Social Security) in furtherance of the "general welfare." The Supreme Court deferred to that Congressional determination and upheld the Social Security Act. I think it will likewise determine that Congress can enact national health care legislation in furtherance of the "general welfare."

Posted Online: Dec. 07, 2011, 2:27 pm - Quad-Cities Online

by John Donald O'Shea

Copyright 2011, John Donald O'Shea