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Obamacare Penalty: Fine Or Tax? Constitutional Debate Rages After 2013 Government Shutdown

Obamacare Penalty: Fine Or Tax? Constitutional Debate Rages After 2013 Government Shutdown

The Obamacare penalty is either an Affordable Care fine or tax depending on who you ask. And the Obamacare constitutional debate over the individual mandate has resumed with the 2013 government shutdown and the opening of the Obamacare exchanges.

As previously reported by The Inquisitr, the Obamacare penalty will increase over time, with the total fine for families of four reaching thousands of dollars by 2016. Because of this Americans are on the lookout for Obamacare exemptions that let you avoid the Affordable Care Act.

The Obamacare constitutional debate started because of the circumstances of the origination of the Affordable Care Act bill. As required by the Origination Clause of the US Constitution, all spending and appropriations bills must originate in the House of Representatives, but the Senate must confirm them and the President sign off on any ideas.

The ACA bill started life as House Resolution 3590, which was then called the Service Members Home Ownership Act. After passing the House, the bill was stripped in a “gut and amend” process and replaced entirely with the contents of what became the Patient Protection and Affordable Care Act. Thus Obamacare was spawned via bypassing the House of Representatives.

After the 2013 government shutdown Sarah Palin called Obamacare unconstitutional, citing the legal history of the Affordable Care Act bill:

“I believe it is unconstitutional because it violates the commerce clause. The federal government really has no right in telling us what we should and should not purchase.”

As part of the US Constitution, the commerce clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” But progressives and conservatives disagree heavily on whether the Federal government can require citizens to purchase private products such as healthcare insurance or face a penalty tax. Still others believe the Federal government should implement a single payer health care system where all healthcare is regulated and quasi-insured by the government.

As we all know by now, the Supreme Court passed Obamacare as a tax and not as a mandate in order to avoid the commerce clause. Lawsuits against the Federal government argued that Obamacare’s constitutional standing was in jeopardy because of the Origination Clause. But the government claimed the “Senate may amend a House bill in any way it deems advisable, even by amending it with a total substitute.” Even now the Obamacare lawsuits related to the Origination Clause are still pending yet the Supreme Court probably won’t see the cases until well fact the Affordable Care Act has been fully implemented.

The Obamacare constitutional debate strikes to the heart of the usage of words like penalty, fine, and tax. Politicians like Obama argue it’s a tax penalty out of one side of the mouth but through the other they say it’s not a tax because that would hurt Obamacare’s popularity. But if in action the Obamacare penalty is really a fine for not complying then all of the sudden Obamacare is illegal based upon prior case law and logic.

Yet, at the same time, the Obamacare penalty is the only way to make the goals of the Affordable Care Act feasible since the overall pool of people must increase:

What do you think about the Obamacare penalty? Do you believe it to be a fine or a tax based upon how its being enforced? Do you consider Obamacare constitutional?

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6 Responses to “Obamacare Penalty: Fine Or Tax? Constitutional Debate Rages After 2013 Government Shutdown”

  1. Costa Rica's Call Center

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  2. David Bennett

    Amend a bill is one thing, to gut it and replace it completely including the name is something else entirely.
    It is no longer the "Service Members Home Ownership Act" in any way shape or form. Do this in the private sector with a contract and you will be jailed for fraud.

  3. Robert Jones

    ObamaCare IS UNConstitutional. I will not buy into this. I took an oath to uphold the Constitution, not trample over it. You can kiss my tail end—and the tail ends of nearly 200 Million Americans… Sooner or later, this will collapse and the majority will for the first time, understand what a combat veteran goes through with the VA.

  4. Catherine Scheufele Reeves

    Thus should be a legal standing for a lawsuit to abolish this so called law. That and the fact that with the 22+ changes barry made, is not even the same law he signed.

  5. Anonymous

    In essence, the argument supporting the ACA’s origin as a Bill arising from the House is that the Bill used similar language even when the purpose was different. By analogy, it’s like going to a rare book collector with an original Shakespeare folio of Hamlet for appraisal and upon return discovering that the original manuscript has been replaced with a Hamlet coloring book and being told it’s the same as the original.

    If this argument ever gets to the Supreme Court, it will be interesting to read the ruling because 1) it wouldn’t pass the “original intent” test of the Constitution which basically interprets the original meaning of the Constitution within the context of the foundational of principles of law (which is basically colonial era Maryland Law as espoused by John Francis Mercer) which would require that the people be informed that a bill is a tax to avoid taxation without representation or 2) the substantive due process argument (modified from arguments by John Marshall and Daniel Webster) which would require that those representatives of the people’s House and those represented be aware of the contents of a bill under consideration as a law and to inform the people without just cause or 3) the “justice as fairness” concept (as modified from lectures by Benjamin Cardozo) which would require that those to be governed do so in consent and agreement with those governing because for something to be gained, something else must be lost and there must be an equity under the law.

    While, the Supreme Court isn’t bound by any of these, it will be interesting to see how it justifies Obamacare under due process grounds because all of these principles are found in some fomr in the US Constitution as Amended. And, because the ACA does not meet these standards, its designation as a Revenue Law administered by the Internal Revenue Service would then violate Amendment 14’s due process clause because procedural due process wasn’t followed and substantive due process wasn’t followed, and thus material due process (a prophylactic measure against overbroad governmental reach through vague laws or substituted meanings very nearly what occurred in the ACA Tax) was not followed. If due process considerations prevented any further consideration by the Supreme Court beyond the narrow question presented at trial but none the less, should have raised the interest of Congress, then it must be reconsidered as a Tax law which was proposed but subsequently failed passage in the Senate and met with a threatened veto by the President of the United States this October 2013.

  6. Anonymous

    Catherine Scheufele Reeves

    The terms are substantive due process which limits the over reach by the government and material due process which prevents "bait and switch" tactics in the use of a laws. On the face of it Obamacare seems to run counter to one or both of these by trying to side step procedural due process– a set of instructions that describe how things must go.

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