Further Decision Released on ObamaCare

Another good step toward the demise of ObamaCare

In a decision released on December 13^th, Judge Hudson of the United States District Court for the Eastern District of Virginia held that the requirement of ObamaCare that a minimum level of medical insurance coverage be purchased by individuals and imposing penalties for not making such purchases exceed federal authority under the Commerce, General Welfare and taxing provisions of the Constitution.

He had previously refused on February 2^nd to dismiss a challenge by the Commonwealth of Virginia to the mandatory medical insurance provisions of ObamaCare, observing that [START BLOCKQUOTE]

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at that stage that the Complaint fails to state a cause of action. [END BLOCKQUOTE]

He then questioned Federal arguments that even if ObamaCare exceeds the limitations of the Commerce Clause, it could be salvaged by reliance on the federal government's taxing powers.

His decision released on December 13^th found no material facts in issue and also found that ObamaCare is unprecedented. He cited the paragraph from his earlier decision quoted above and stated that the question presented was whether an act of Congress can require that anyone purchase health insurance; such a requirement touches everyone who is required to file a Federal income tax return.

Based on legal arguments presented following (and pretty much before as well) his February 2^nd decision, he found that the Commonwealth of Virginia had made the required showing of unconstitutionality, entitling her to judgment as a matter of law. As he noted in the current decision, to come within the permissible limits of the Commerce Clause, economic "activity" must, indeed, include some activity -- an action, transaction or deed placed in motion by an individual or legal entity; not a difficult concept to grasp. By requiring the purchase of a good or service, the Congress does not itself create an economic activity. A decision not to make such a purchase is therefore beyond the reach of the Commerce Clause.

Since the individual mandate itself is outside the scope of the Commerce Clause, it is also outside the General Welfare and Taxation clauses, despite the extreme breath of the latter. The legislative history shows that the "tax" is in fact a penalty; indeed, the Congress did not use the word "tax" in connection with the mandatory purchase provision in the final legislation, even though earlier versions had used the more "politically toxic" word tax rather than penalty. In seeking popular approval before and after passage, ObamaCare proponents refrained from using the word "tax." "Tax" and "penalty" are not interchangeable.

Having found the mandatory health insurance provision and the companion penalty unconstitutional, Judge Hudson determined that some sections could stand as severable from those. In view of the extreme haste with which ObamaCare had been "rushed to the floor for a Christmas Eve vote," he found it impossible to determine whether the various other provisions would have been passed without the mandatory health insurance provision and associated penalty. He therefore severed those other provisions and allowed them to stand.

Since it was obvious that the case would proceed to appellate review, he declined to stay the effectiveness of any of the ObamaCare provisions but expressed a hope that the Executive Branch would abide by his ruling as to constitutionality, noting that a "declaratory ruling is the functional equivalent of an injunction" and sufficient to stay the Executive's hand during the pendency of an appeal.

Accordingly, Judge Hudson granted the Commonwealth's motion for summary judgment, held the various other provisions severable from the health purchase mandate and penalty, and denied the request for an injunction pending appeal.

The reactions of the usual suspects were, of course, predictable. Those who like ObamaCare claimed that Judge Hudson is a radically unwholesome "activist judge" whose decision is wrong and will be overturned on appeal. Those who dislike ObamaCare praised his constitutional scholarship and claimed that his decision will be affirmed. I think implementation of ObamaCare would be a disaster produced by a very lengthy statute generally unread prior to its very hasty passage and likely harmful not only to medical care in the United States but also bad for the economy. I hope the decision is upheld on appeal, but much can happen between now and a Supreme Court decision. The statute may be modified by the new Congress, the Supreme Court may in the interim decide another case construing the Commerce Clause differently, and/or one or more Supreme Court justices may retire to be replaced by Zeus knows whom. It's just too far away to guess. After the briefs have been submitted and oral arguments have been held it should be possible to make an informed prediction; not now.

The case will almost certainly now proceed on appeal to the Fourth Circuit Court of Appeals in Richmond Virginia or, conceivably as requested by incoming House majority leader Eric Cantor (R., Va.), directly to the Supreme Court where it will ultimately go in any event. He stated,

“To ensure an expedited process moving forward, I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court. In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately.

Well, maybe.

UN Seeks Global Taxes; Obama Administration Says Bend Over.

It seems as though the United States needs more problems.

There has been a demand for a global tax to fund the heroic battle against the horrors of global warming climate change species endangerment.

The demand comes from the Secretary-General's High-level Advisory Group on Climate Change Financing, which was organized following last year's UN Climate Change Conference in Copenhagen. Among the panelists recommending global taxes are George Soros, the financier of socialist change, and Larry Summers, President Obama9;s [sic] economic advisor.

The suggested amount of the global tax would only be 100 billion dollars when implemented (the amount "pledged at last year's Copenhagen Summit to help poor countries cope with the effects of climate change"), small change perhaps to some, but it would increase substantially thereafter mainly through carbon and transactions taxes. Obviously, according to this splendid article in Salon, we must put Al Gore science back into the political process, lest we be barbaric. Prime Minister Zapatero of Spain has asked that we all help to create green jobs in Spain and elsewhere "as a way out of the current economic crisis;" apparently the theory is that since the market won't create enough of them, they are the way to economic prosperity.

As Madrid economics professor Dr. Gabriel Calzada exposed, the “green” industry in Spain saw their only hope in the U.S. (Uncle Sucker?) coming to the rescue, keeping the bubble filled with transferred billions. Calzada was decried as “unpatriotic” by Spain’s renewables industry and communist-affiliated trade union — not for being wrong, but for letting the cat out of the bag.

Implementation of this "science friendly" idea would create all sorts of opportunities for the slippery slope effect to click in for more of the same as well as for other purposes. At the G20 summit in Korea, a global "Robin Hood" tax was proposed so that "rich" nations could help "poor" nations, doubtless "scientifically." The World Health Organization recently urged a similar objective. Not to be outdone in efforts to spend other folk's money,

French, German and British leaders have each endorsed one or more ideas for international taxation, including a global financial transaction tax or "Tobin Tax" as it is more commonly known. The G-8 and the International Monetary Fund, not wanting to be left out of the global tax game, are writing proposals of their own. With Summers, we can now add to that list a high ranking Obama administration official.

International taxation is "no longer merely an option," says French Foreign Minister Bernard Kouchner. He argues it's only a matter of time before the UN implements a tax system.

Unless the U.S. Constitution has recently been tossed or substantially rewritten, there is no way for the U.N. or other international bodies to impose that sort of thing on the United States directly. This does not mean that we are immune. Unfortunately, there are some ways for it to be done indirectly. Some would require the complicity of the President and the Congress and only a few would not. As noted here, there is presently very little chance of any significant global tax scheme being accepted by the United States due to constitutional restrictions, the economic situation and political realities.

While it may be a flight of fancy now, global taxation has been strongly and consistently advocated by the UN, the WHO, several European countries and others. President Obama has supported the concept and in 2008 sponsored the Global Poverty Act (S 2433) to require U.S. compliance with the Millennium Development Goals. Vice President Biden, then chairman of the Senate Foreign Relations Committee, tried to get it passed but failed. More recently, in December of 2009, soon-to-be-no-longer Speaker of the House Nancy Pelosi endorsed the idea of a global tax on stock trades to provide funding for additional stimulus packages.

It seemed almost a matter of pride for some in the Are you Serious Congress to ignore the Constitution when dealing with legislation, under the assumption that the federal government can do whatever it pleases. We saw that, for example, when ObamaCare was before the Congress; yet it passed. The mandatory health insurance provisions are now being litigated and I would be quite surprised were they not eventually to fall -- but not before creating substantial business uncertainty and consequent economic difficulties.

Over time, resistance to a global tax scheme may diminish to the point that just a small and economically benign tax gets by. Precedent having been established, it would become increasingly difficult to prevent the process from reproducing itself for increasingly harmful taxes. Legislative expansions of the Commerce Clause, not terribly significant in themselves at first, have over the past seventy-five years distended it rather grossly.

Articles I, Section 7 of the Constitution provides,

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article I, Section 8 provides,

The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Article I, Section 9 provides,"No Tax or Duty shall be laid on Articles exported from any State." Its purpose has been said to be

To prohibit discrimination against any states or regions, Congress cannot tax goods exported from a state to foreign countries or those that move between states. (emphasis added)

Further, under the same Article and Section,

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

The Sixteenth amendment authorized an income tax:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

And that's about it.

Hence, no United States taxes can be imposed on goods exported to any foreign country, no non-uniform taxes can be imposed on any state other than via income taxes and all legislation to raise such revenues must originate in the House of Representatives, soon to be under the control of a reasonably conservative or at least Republican majority. New excise taxes on fuel, electricity, etc? Not with the new Congress, unless some individual states impose them on their own residents which seems equally unlikely. It seems likely that future appropriations for funding by the United States of the U.N. may already be in trouble, and to increase them would be very difficult. Ditto funds appropriated to federal agencies and departments, and ways exist narrowly to restrict such appropriations. True, under Article II, Section 2, the President has the power,

by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . . .

Were the President to present to the Senate which convenes in January a treaty authorizing the collection of such revenues it probably would not receive the consent of the requisite numbers of senators; even if it did, it is very questionable whether it would be compliant with Article I and the Sixteenth Amendment quoted above. Senate Resolution 461, introduced by recently re-elected Senator David Vitter, R. La., on March 10, 2010, would put the Senate on record against any global tax scheme. It was referred to committee and has not yet progressed; maybe that sort of resolution should be looked into by the new Senate come January.

However, there are still ways the global tax envisioned by Secretary-General Ban Ki-moon's United Nations and others might be implemented. The U.N. Advisory Group offers some options

for governments to get the required $100 billion. "Governments may prefer to increase budget contributions," its authors helpfully suggest, until such time as new domestic or international taxes can be imposed and collected. It goes on to recommend a "carbon export optimization tax," and levies on international aviation and shipping including taxes on jet fuel and passenger tickets for international flights.

Other possibilities include royalties from fossil fuel extraction, and taxes on the use of electricity. Finally, there is the need, according to the UN, for a "global financial transaction tax," that would require "international coordination" and "international implementation." This is UN-speak for a global tax collecting agency.

Beyond these nifty ideas, which could easily discriminate against some states, foreign governments could increase their own taxes imposed on imported goods, many of which still come from the United States; this would have to be done very carefully if trade wars were to be avoided. The added funds so collected could be diverted to the U.N. They could also impose additional taxes on U.S. entities doing business in foreign countries, although if high enough that could cause some United States companies to rethink outsourcing and other ways of operating outside the United States; that might well be a good thing for the U.S. economy.

The United States has done more than her "fair share" of aiding less fortunate countries, and far from thereby winning the minds and hearts of their populations has increasingly been disparaged. She has maintained forces abroad, making it easier for some countries to have massive social programs based on the funding they would otherwise have had to spend on self defense. In some ways, she has done them ill by promoting an entitlements culture which, once started is almost impossible to stop. See Greece, France (and increasingly California and other states where that culture has gone berserk).

Rather than chase the fading ghosts of global warming and other phantoms, the new Congress should say "whoa" and reconsider the funding on which the country already splurges; to do otherwise would be pernicious. It would be no less so to let even a minimal global tax sneak under the radar. I facetiously suggested here that the United Nations be relocated to Luputa, Haiti or Somalia but that probably wouldn't work, despite the benefits thereby provided to the poor. In any event, the new Congress should give careful and detailed consideration to whether even the present (high) level of United Nations and foreign aid funding provided by the United States should continue. To do otherwise would be, the extent such a thing is possible, even more inconsistent with United States interests than is the present Obama Administration itself.