A shifting basis for Obamacare

Supporters of Obamacare are not so confident of its constitutionality as they pretend:

A”tell” in poker is a subtle but detectable change in a player’s behavior or demeanor that reveals clues about the player’s assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month’s health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate’s defenders changed the argument—now claiming constitutional authority under Congress’s power to tax.

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

2 Responses to A shifting basis for Obamacare

  1. Going to an illegal war and killing thousands = Constitutional.
    Trying to make sure those who don’t have healthcare, are covered = Unconstitutional.

    You Americans never fail to amaze the rest of the World in just how utterly self-centered you are.

  2. K. Crary says:

    I can see how the concept of limiting the power of government might seem quaint in the UK.

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