After once again ignoring and violating the separation of power between the States and the federal government, the United States Supreme Court added insult to injury by perverting the taxing clause of the Constitution to sustain the federal governmentโs unconstitutional intrusions into private healthcare. Republicans responded by stating they will repeal the individual mandate if they win the November elections. If republicans win and decide to follow through with their so-called promise, I have a simple way for them to negate the individual mandate and nullify the Courtโs decision.
When Congress wrote and passed the Affordable Care Act, the individual mandate provision in section 5000A(b) (1) was clearly written as a penalty, not a tax. Justice Robertโs acknowledged this fact several times in the Courtโs opinion:
โThe Affordable Care Act describes the โ[s]hared responsibility paymentโ as a โpenalty,โ not a โtax.โโ
โIt is of course true that the Act describes the payment as a โpenalty,โ not a โtax.โโ
The majority on the Court took it upon themselves to assume the role of Congress and unconstitutionally re-write the statute and transform a penalty into a tax. Apparently, the Court thought Congress was too stupid to know the difference between a tax and a penalty when it wrote the statute. A review of the Act shows Congress knows the difference.
The individual mandate in Section 5000A(b) (1) states:
โIf a taxpayer who is an applicable individual, or an applicable individual for whom the taxpayer is liable under paragraph (3), fails to meet the requirement of subsection (a) for 1 or more months, then, except as provided in subsection (e), there is hereby imposed on the taxpayer a penalty with respect to such failures in the amount determined under subsection (c).โ
Compare the above with section 10907 of the Act, which imposes an โexcise tax on indoor tanning services in lieu of elective cosmetic medical procedures.โ
โ(a) In GeneralโThere is hereby imposed on any indoor tanning service a tax equal to 10 percent of the amount paid for such service (determined without regard to this section), whether paid by insurance or otherwise.โ
If Congress had intended the individual mandate to be a tax, it would defined the nature of the tax and incorporated the word tax as it did in section 10907 and other provisions that impose taxes to generate revenue.
When Congress writes legislation, many times they define words used in the statute to restrict the meaning of a particular word. The Affordable Care Act is no exception. In (b) (1) of the above section, the term Indoor Tanning Service is meticulously defined:
โ(1) In GeneralโThe term โindoor tanning serviceโ means a service employing any electronic product designed to incorporate 1 or more ultraviolet lamps and intended for the irradiation of an individual by ultraviolet radiation, with wavelengths in air between 200 and 400 nanometers, to induce skin tanning.โ
So how does all this translate into negating the Courtโs individual mandate decision? Since the democrats did not define โpenaltyโ and โtaxโ as they did with other words in the Act, the republicans would simply need to add two paragraphs to the Act.
TAXโ
โThe word tax, as used in the Affordable Care Act, means a tax to raise revenue to pay the debts and provide for the common Defense and general Welfare of the United States pursuant to Article I, Section 8, Clause 1 of the Constitution for the United States.โ
PENALTYโ
โThe word penalty, as used in the Affordable Care Act, shall not be construed as a tax to raise revenue to pay the debts and provide for the common Defense and general Welfare of the United States pursuant to Article I, Section 8, Clause 1 of the Constitution for the United States.โ
Pursuant to Article I, Section 8, Clause 1, Congress can only impose taxes for those (3) purposes. In its decision, the Supreme Court held that the โpenaltyโ was a โtaxโ under this provision of the Constitution. By placing the โpenaltyโ outside of Article I, Section 8, Clause 1, it would prevent the โpenaltyโ from being construed as a tax because it would not be imposed for raising revenue. Thus, it would instantly negate the Courtโs ruling. As United States Supreme Court Justice Story stated in his 1833 commentaries on the Constitution:
โThe power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes. The application for other purposes is an abuse of the power; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority.โ
A monetary imposition that is not intended or structured to raise revenue for the (3) purposes enumerated in Article I, Section 8, Clause 1 is not a tax under the Constitution. Since the mandate โpenaltyโ was not constructed as or inserted into the Act as a revenue raising measure (see the revenue raising provisions of the Act), the Court committed, in the words of Justice Story, โan abuse of the powerโ and a โpremeditated usurpation of authorityโ by transforming the โpenaltyโ into what is in essence an invalid tax.
If the words โpenaltyโ and โtaxโ had been defined per the above, there would have been no opening for the Supreme Court to unconstitutionally assume the role of legislators and re-write the โpenaltyโ as a taxโ because the meaning of the words would have been set in stone. Itโs not too late to remedy this because Congress has the power, unrestrained by the federal judiciary, to alter or clarify the meaning of words used in legislation it writes and passes especially when it is consistent with original intent.
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