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 is 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).

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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 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 Justice John Roberts changed the Affordable Care Act’s individual mandate into a tax and thus rescued President Obama’s signature legislation. What you may not know is that with this slight of hand—or flick of the wrist—he actually sent Obamacare flying from the constitutional frying pan into the constitutional fire.

That is, if you accept the Great Alchemist’s transmogrification of a penalty-enforced regulation into a mere tax on the condition of not owning health insurance—in other words, a “unicorn tax,” a creature of no known provenance that will never be seen again—if you accept that, you torque up the ACA’s constitutional tension vis-à-vis the Origination Clause.

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Article I, Section 7, Clause 1 says: “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.” This clause was put in to ensure that that most awesome federal power was lodged in the political body most sensitive to public opinion.

“The power to tax is the power to destroy,” John Marshall wrote in the foundational 1819 case of 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 nation’s displeasure with Obamacare by electing a Republican to the Senate. That’s when the Senate took a bill giving benefits to members of the military who were first-time homebuyers and, as George Will put it recently, “‘amended’ this bill by obliterating it.” 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.



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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