By Jon Dougherty
(TNS) Amid the ‘bipartisan’ impeachment drama this week — three Democrats voted against impeaching President Trump on Wednesday and one, a 2020 Democratic presidential contender, Rep. Tulsi Gabbard of Hawaii, voted ‘present’ — something amazing happened for American healthcare.
The 5th Circuit Court of Appeals, based in New Orleans, ruled that Obamacare’s individual mandate isÂ unconstitutional, which most reasonable experts and analysts knew all along (because nowhere in the Constitution does the founding document give Congress the power to force Americans to buy a product, in this case health insurance).
Now, with this ruling (which will likely be appealed to the Supreme Court), we have the first real chance since the law passed in 2010 to get all of it struck down.
The Fifth Circuit ACA case is out. pic.twitter.com/3M146D3o91
— Raffi Melkonian (@RMFifthCircuit) December 18, 2019
The appeals court ruled:
— Plaintiffs had standing to sue;
— Individual mandate is unconstitutional;
— Individual mandate is no longer considered a “tax,” which is how Obamacare survived the initial Supreme Court challenge (remember when Chief Justice John Roberts made up language creating a ‘tax’ in the law that even Obama argued did not exist?);
— This is essentially a punt to the lower district court, which is charged with providing more explanation on the workings of the law as it exists in its current state (recall that the Republicans’ 2017 tax reform law did away with the individual mandate penalty/requirement).
To the point regarding the unconstitutionality of the individual mandate, libertarian attorney Ilya Shapiro argued in Forbes in 2014:
As we all know, two years ago, Chief JusticeÂ John RobertsÂ changed the Affordable Care Actâ€™s individual mandate into a tax and thus rescued President Obamaâ€™s signature legislation. What you may not know is that with this slight of handâ€”or flick of the wristâ€”he actually sent Obamacare flying from the constitutional frying pan into the constitutional fire.
That is, if you accept the Great Alchemistâ€™s transmogrification of a penalty-enforced regulation into a mere tax on the condition of not owningÂ healthÂ insuranceâ€”in other words, a â€œunicorn tax,â€ a creature of no known provenance that will never be seen againâ€”if you accept that, you torque up the ACAâ€™s constitutional tension vis-Ã -vis the Origination Clause.
Article I, Section 7, Clause 1 says: â€œAll bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.â€ This clause was put in to ensure that that most awesome federal power was lodged in the political body most sensitive to public opinion.
â€œThe power to tax is the power to destroy,â€ John Marshall wrote in the foundational 1819 case ofÂ McCulloch v. Maryland, so the Framers wanted to ensure that any such destruction came from the people themselves.
Fast forward to December 2009, immediately before the ur-Tea Party state of Massachusetts expressed the nationâ€™s displeasure with Obamacare by electing a Republican to the Senate. Thatâ€™s when the Senate took a bill giving benefits to members of the military who were first-time homebuyers and, as George WillÂ put it recently, â€œâ€˜amendedâ€™ this bill by obliterating it.â€ Harry Reid renamed it and replaced its entire contents with the ACA.
Translation: Reid’s changes meant that a bill raising revenue — a tax, per se — actually originated in the Senate, not the House where the Constitution says such bills must originate.
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But alas, we must impeach Trump so who among the Democrats still in office who helped pass this disgraceful monstrosity care about the Constitution, right?
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