On November 7, the U.S. Supreme Court announced that it would hear the case of King vs. Burwell, one of the four cases challenging the IRS rule that ObamaCare subsidies can be given to policyholders who have bought health insurance through exchanges established by the federal government, contrary to the plain language of the law. The New York Times reported on the day of the Court’s announcement that the “case is likely to be argued in February or March, and a decision will probably arrive in June.”

There are much bigger issues here than the one upon which King and the other two cases that have received judgments were fought. One of these other issues is the growing lawlessness of the executive branch — the president seems to think he’s a law unto himself. On July 7, RedState reported that the Court had delivered twenty unanimous rebukes against the Obama administration for actions smacking of rank overreach. The IRS regulation in question is another case of an imperial president ignoring duly enacted laws and inventing his own out of whole cloth. And now the president threatens to continue down this road with an executive action on amnesty for illegal aliens. Constitutional law professor Jonathan Turley, a liberal no less, warns of an “über-presidency” and of a constitutional tipping point. The Court needs to put a leash on Obama’s “inner Nixon.”

If the Court allows the IRS regulation to stand, Americans should expect more of the same, and soon. Soon the IRS will be deciding what to do about taxpayers who have not paid their ObamaCare penalty/tax for noncompliance. But, on page 249 of the PDF of ObamaCare, one finds “WAIVER OF CRIMINAL PENALTIES,” §5000A(g)(2)(A), which says: “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.”

As comforting as that may sound to those who find ObamaCare a perversion of American law and who plan not to pay the penalty/tax, the IRS could “rule” that what one has paid in income taxes is to be applied first to the ObamaCare penalty/tax and then (only after that has been paid) to what one owes on one’s income. So even if a taxpayer has paid exactly what he owes on his income, he could still owe income taxes, all curtesy of the latitude that would be given the IRS if the high court allows the lower-court ruling in King to stand.

Another issue that may sound a bit precious to those who aren’t offended by an imperial presidency is the integrity of The Law. Not only is ObamaCare bad policy and bad economics and bad for our health, it is bad law. The government’s lawyers are even reduced to defending ObamaCare by citing its ambiguity. If our laws are unclear on central points, like financing, then Congress should clarify them, not the Court, and certainly not the executive.

The incoherence of ObamaCare was made worse by the Court itself when it allowed the law to stand in NFIB v. Sebelius. It was a fine victory for fans of limited government when the Court ruled that Congress could not command individuals to purchase health insurance. But what we’re left with is a Congress that can tax us for not doing what it has no power to command us to do.

The text of ObamaCare shows 91 instances of “State shall,” and 24 additional instances if pluralized. One wonders what the crafters of the bill were thinking when they included that language: Congress cannot make demands of the States to effectuate a federal program. So, all those instances of “State shall” are dead code. If the feds tried to bring the States to heel by suing them for not complying with “State shall,” it would be a fool’s errand. “Dual sovereignty,” both federal and state, still applies in America. But Emperor Barack might just decide to dispense with it if King is allowed to stand.

On the day the Court announced that it would expedite hearing the King case, the Cato Institute’s Michael Cannon applauded the Court and then wrote:

Since January, the Obama administration has been spending billions of unauthorized federal dollars, and subjecting nearly 60 million Americans to unauthorized taxes, all to hide the full cost of the Patient Protection and Affordable Care Act, or ObamaCare. The administration’s actions have not only violated the law and caused massive economic disruption, they have also subverted the democratic process.

But Congress also laid waste to “the democratic process” when they created and passed the bill. The legislative “process” that begat ObamaCare was about as squalid as it gets, and there was little in it that could be called “regular order.”

In their haste to use their filibuster-proof majority, Senate Democrats passed ObamaCare on Christmas Eve 2009. You see, a special election was to be held the next month to fill Sen. Kennedy’s seat, and if the Republican won, it would end the Democrats’ supermajority. And when Scott Brown prevailed, Democrats could not go back and fix their harebrained law. (Perhaps Harry Reid should have ended the filibuster back in 2010, so that the Dems would have had the time to find out what that had voted for and work out the kinks.)

The Court’s decision in the appeal of King v. Burwell may well be decided on the very narrow grounds of the law’s alleged ambiguity. But from its very conception, ObamaCare presented huge constitutional issues for America. Coercion was a huge issue in the landmark NFIB case. In oral arguments (page 12) Justice Kennedy said of the individual mandate that it would be “changing the relation of the individual to the government” and asked if that did not demand “a heavy burden of justification to show authorization under the Constitution?” The Court rightly found that Congress has no authority under the Commerce Clause to command individuals to engage in commerce by forcing them to buy health insurance. Consequently, all those references in ObamaCare to “interstate commerce,” the original justification for the mandate, are dead code.

How much “dead code” should the Court allow in The Law? The biggest reason that the Court should rule for the original plaintiffs in King is because the Court should have knocked down ObamaCare in NFIB. The Court found the mandate unconstitutional, and had a just reason to end the law, but let it stand anyway. One can speculate about why the Court would do such a thing, but the upshot has been these waves of cases that continue to wash up on the Court’s shore.

At the very least the Court should disallow the IRS rule in question. But it would be better to knock down the entire misbegotten mess. Let’s take this two-headed calf out back of the barn and put it out of its misery … and ours.

(POINTER: Watch this terrific video at Reason of Randy Barnett, one of the legal architects of the NFIB challenge.)

The 10th 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.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.