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The ObamaCare Decision: A Gift for Congress

Jun. 28, 2012 4:19pm

Trevor Burrus is a Research Fellow with the Cato Institute's Center for Constitutional Studies.

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tburrus@cato.org

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Burrus: The ObamaCare Decision: A Gift for Congress

Did you know that Congress passed a massive tax increase when they passed the Affordable Care Act—a.k.a. ObamaCare—in 2010? If you didn’t, then you were not alone. Not only did Congress not realize they were passing a tax, but President Obama explicitly said that the penalty for not having qualifying health insurance was not a tax.

Today, the Supreme Court ruled that, in fact, Congress did pass a substantial tax increase when they compelled citizens to purchase health insurance or pay a fine. Unquestionably, Congress is very happy that it took two years of litigation and a blockbuster opinion from the Supreme Court to determine that the penalty is really a tax. Otherwise, if it were known at the time, Congress may have faced incredible political opposition to the Affordable Care Act and it likely would never have passed.

This would have been a good thing. Not because the Affordable Care Act will almost assuredly make our already dysfunctional health care system worse, but good because democratic responsiveness is an essential part of a healthy democracy. All lawmakers would love to veil tax hikes and other distasteful legislation from the people. Sometimes, for many representatives, the less the people know, the better.

To prevent this type of representative legerdemain, the Framers of the Constitution included strict controls to ensure that the people know who is taxing them, why, and for how much. The first of these controls, the Origination Clause, mandates that all “bills for raising revenue shall originate in the House of Representatives.” The House, being limited to a two-year term and also being, at the time, the only part of Congress elected directly by the people, was set-up to be democratically responsive. Placing the power to tax in the House would ensure that the people knew who was taxing them and thus could replace them if the taxes were out of control.

The Framers also included the Statement and Account Clause, which requires the government to publish “a Statement and Account of the receipts and expenditures of all public money.” Perniciously, the Affordable Care Act was drafted in such a way that the private expenditures of people commanded to purchase a product they do not want would not be included in the estimated cost of the bill.

The Court’s decision ignores the purpose of both of these Clauses: to ensure that taxation is above-the-board and accountable to the people.

Today, Congress got everything it wanted. First, their massive health care reform law was upheld. Second, their power to tax was broadened. Third, they will have to pay no political price for having passed a massive tax hike in 2010—that is, unless the people will now hold them accountable.

Trevor Burrus is a legal associate in the Cato Institute’s Center for Constitutional Studies.

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Comments (15)

blair152
Posted on July 1, 2012 at 2:13pm
Obamacare also ignored Article 1, Section 8, which says that taxes shall originate in the House, not the
Senate. All the better. Majority Leader Harry Reid will soon be Minority Leader Harry Reid, and within four years, former Minority Leader Harry Reid.

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Searchingforthelight
Posted on July 1, 2012 at 1:14pm
The Middle aged liberal is stating, “you gotta get the young people in”. The reason being is because this whole thing is a pyramid scheme. You bock at Social Security, Medicare, ect. This smacks of a pyramid scheme. It still leaves out those who cannot afford it and puts more money in the medical and government system. Is this perhaps another governmental fund or pool to be dipped into?
Is this another lasso around the neck of the horse? I think so.

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newsjunkie
Posted on July 1, 2012 at 12:35pm
i have never felt so hopeless the other day with the Supreme Court hearing. Not so sure we can win this fight. I think all the Supreme Court needs to be overthrown too. Are they going to to exempt from this “tax” as well as all the politicians? Our leaders are so corrupt and I dont see how this will ever be corrected. It’s a shame what our country has become. God is the only way and may He help us all.

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- Freedom1984
  Posted on July 2, 2012 at 12:13pm
  NewsJunkie:
  I am actually in the same place you are. What I really feel is that with the SCOTUS answering like they did showed us that the COMPLETE SYSTEM IS BROKEN. Totally 100% broken. I am trying so hard to muster up energy to keep fighting…….
  
  Our System is Broken, and I pray that it will not “get fixed” (ha ha ha) with Socialism. If you ever read this (I know I hardly go back to when I post)…. you are not alone.
  
  God Bless You.
  
  Report this comment
marthasusan40
Posted on June 30, 2012 at 11:01pm
Vote him out…I have never been as mad as I was when I watch in horror as Stu read during the GBTV radio show that Obama Care was staying………………..but here is the thing…tonight at a family dinner, ( most of my family is liberal)…..where we never talk politics………..my nieces fiance announced that he is switching his party from Democrat to Republican…he said he was humiliated to be a Democrat..with that, my brothers girlfriend announced that she had already switched within the past few weeks to a Republican…..then…………my niece who is very liberal, quietly said, well I could still vote for Romney even if I am still a Democrat………….I had to put my hand over my mouth to keep from shouting…………….Finally, my family is starting to wake up…..God Bless America……….

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kabenninger
Posted on June 30, 2012 at 2:06pm
To JEA9. Thank you for the lesson. I have signed up for online studies in the constitution and have not had the time to proceed very far. I appreciate your knowledge and it is a good thing that we do have a way to rid ourselves of justices that do not follow the constitution – I didn’t think we did.
In the meantime, other than voting against each and every person who voted for obamacare, I am now going to start writing my congressman and telling him that, if indeed this is now considered a tax, he must start proceedings completely striking down the law since it did not originate in the House.
I don’t know about anyone else, but I haven’t been this angry since they first passed this monstrosity.

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oudbob
Posted on June 30, 2012 at 1:10pm
voting Romney in may only be a stopgap measure, but I will do it in November. It will stop the Democrats, then we can turn our attention to the Rhino’s.

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- VioletLilly
  Posted on July 1, 2012 at 5:35am
  By now we should know better than to depend on Congress to do anything. As individuals we must take a stand. History repeating itself can sometimes be a good thing. Read this article and pay close attention to the last line. http://ruleofreason.blogspot.com/2012/06/supreme-courts-declaratory-act.html
  
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Live_Free_orDie
Posted on June 29, 2012 at 5:51pm
I wish I could vote out every Democrap out…but I live in the State of Retardation…New Jersey

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- kabenninger
  Posted on June 30, 2012 at 2:26pm
  I agree with you that the frustration of trying to outnumber the misinformed and misguided is sometimes overbearing.
  I live in Montana and had I realized what a liberal state it is, I’m not sure I would have moved here 15 years ago – however I did move from California so I still came up in the world LOL
  But I live in a college town and we all know how liberal the youth tends to be. They can’t help it – Churchill had a saying, if you’re a conservative when you’re young you don’t have a heart and if you’re a liberal when you age, you haven’t got a brain (not his exact quote but that’s the meaning).
  Still, what angers me is that these young wippersnappers come here for a few years, vote democrat and with our small population, every vote really does count. Then they go home, after leaving our state in a mess.
  We have become something like #48 of the most unfriendly states to businesses we have very few big companies here. Yet still the majority vote liberal. This doesn’t make sense to me – our state keeps getting worse off and our taxes continue to rise (my property tax has gone up every single year I’ve lived here. Last year they increased it by 30% – and this year they just added another 2.5%)
  But all we can do is get out there no matter what. I have a family member in New Jersey and she thinks she’s seeing a gradual shift to the right. Hang in there.
  
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Delores at CH WV
Posted on June 29, 2012 at 2:17pm
If the citizens do not wake up and vote this dicator out; then, they deserve all the taxes and serfdom coming their way. LOL

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JohnB2011
Posted on June 29, 2012 at 1:22pm
Is there a way to recall a Supreme Court Justice for not considering the Origination clause and the Statement and Account Clause? Why can’t the House Judicial take up this judicial activism–wasn’t Marlboro vs Madison a precedence?

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- jea9
  Posted on June 30, 2012 at 1:01pm
  Each of the 3 branches of government is charged with upholding the Constitution. The most important of the 3 branches is the Legislative branch as it is closest to the people (elected directly). The least of the 3 is the Judicial branch as it is the farthest away from the people. The Founders impeached SCOTUS justices 3 times. One was for drinking excessively (on his own time), one was for swearing in the courtroom. One was for not upholding the Constitution. There was no supreme ruling as we deludedly think today. Everyone needs to sign up and attend the 12 week course on the Constitution from Institute on the Constitution, and/or the David Barton series on the Constitution, which is available online as a series. I have done both, twice for the Barton series. I wrote Rand Paul and said the same thing to him. Roberts ruling was wrong. Tax must begin in the House. This bill did not do this. It is an unconstitutional ruling and the people, and the Conservatives need to learn the Constitution so we can demand that the ruling be thrown out. If it takes conversations/debates by Constitutional experts, then that would be good. We all incorrectly assume that the SCOTUS knows the Constitution inside and our. However, law schools don’t teach the Constitution. They have students read the Bill of Rights, but only 3-4 schools actually teach Constitutional law. How about those facts? That needs to change, and who is going to demand that change?
  
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nocommie
Posted on June 28, 2012 at 5:04pm
O, do not worry,we the people will hold them accountable.This is far from over.Let the games begin.Everybody please join a tea party and send whatever you can to Romney.Vote every democrat out of office on every level.Get mad and get out there….

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- VioletLilly
  Posted on July 1, 2012 at 5:37am
  Let us not depend on politicians. Just look at the theater they are giving us with their “symbolic repeal vote.” By now we should know better than to depend on Congress to do anything. As individuals we must take a stand. History repeating itself can sometimes be a good thing. Read this article and pay close attention to the last line. http://ruleofreason.blogspot.com/2012/06/supreme-courts-declaratory-act.html
  
  Report this comment

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