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Is the Affordable Care Act Unconstitutional?
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“If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned.” — Justice George Sutherland (1862-1942)

Here we go again. The legal battle over the constitutionality of the Affordable Care Act — Obamacare — will soon be back in court due to the largely unexpected consequences of a series of recent events.

When the ACA was enacted in 2010, it was a stool with four legs. The first was a declaration that access to professional health care treatment — even for preexisting conditions — is a right to be guaranteed by the federal government. Second, that all people in America are legally required to have health insurance or be assessed for the cost of an insurance policy by the IRS — this is the so-called individual mandate. Third, that all employers of 50 or more full-time employees provide health care insurance to their employees. And fourth, that the federal government would micromanage the delivery of health care and, along with the states, orchestrate and subsidize health care for those who did not receive it from an employer.

When the legal challenge to the ACA was before the Supreme Court in June 2012, the core issue was does the Commerce Clause of the Constitution — which delegates to Congress the power to regulate interstate commerce — empower the Congress to compel people to engage in it by purchasing a health insurance policy. As the late President George H.W. Bush liked to ask: Can Congress force me to eat broccoli?

When the Supreme Court took a preliminary vote after oral arguments on the constitutionality of the individual mandate, the tally was 5 to 4 to invalidate it. Then Chief Justice John Roberts had second thoughts. He saw the polls, which showed Mitt Romney safely ahead of President Barack Obama in the then upcoming presidential race, and Republicans looking good to capture Congress. He reasoned to his colleagues that it would be better for history and the court’s legacy if the political branches invalidated legislation as controversial as the ACA, rather than the court.

So, he went along with the finding that the Commerce Clause does not confer the power to compel entry into interstate commerce, but he needed a way to salvage the individual mandate. Breaking with the five-member conservative majority on the court, he reasoned that while Congress cannot regulate everything under the sun (its powers to regulate are limited by the Constitution), it can tax anything under the sun. So, if the IRS assessment visited upon those who fail to acquire health insurance is a tax, the individual mandate is constitutional.

This was a novel argument, in large measure because the litigants challenging the constitutionality of the individual mandate and the Department of Justice defending it all argued to the court that the IRS assessment was not a tax. President

Obama had promised voters that the federal micromanagement of health care would not add to individuals’ tax burden, and the challengers called the assessment a penalty so as to trigger a hearing for each person as to whom the IRS imposed an assessment.


Can the court characterize a statute as a tax when all the litigants in the case, including the government, have insisted it is not? If a jury is hearing an intersection collision case and all witnesses testify that the traffic light regulating the plaintiff’s vehicle was green, the court must instruct the jury that it may not find that the light was amber or red because the jury and the court are bound by the evidence before them.

But the Supreme Court is infallible because it is final, as Justice Robert Jackson once observed. It can do what it wants and call a penalty or an assessment or a command to eat broccoli a tax. By doing so, the ACA was saved.

Then, in 2016, Donald Trump was elected president, and a Republican Congress in 2017 enacted new tax laws that invalidated the individual mandate; there is no longer any IRS consequence for individuals who fail to obtain health insurance. When the ACA, minus the individual mandate, was challenged last year, a federal judge ruled the ACA unconstitutional because there was no tax in there to salvage it. Notwithstanding President Trump’s views, the Department of Justice defended the Affordable Care Act, as is its lawful obligation.

Now, on appeal, the DOJ says it will not defend Obamacare. It is almost unheard of for the DOJ not to defend on appeal a constitutional challenge to a federal statute, particularly a statute that the Supreme Court has upheld, and especially a statute that the DOJ just finished defending in a trial court. The courts are incredulous, and skeptical, when the DOJ changes its position 180 degrees during a case. That change can seriously undermine the credibility of the DOJ. Also, it can undermine the president’s fidelity to his oath of office — to uphold and defend laws whether he agrees with them or not.

Yet, the present statute is not the same statute that the Supreme Court upheld in 2012. The feds cannot order me to wear a red necktie, but they can tax me if I don’t. No tax, no red necktie. What will the courts do?

Politically, this is a serious problem for Republicans. History shows that once a governmental benefit — here, subsidized health insurance with guaranteed coverage for preexisting conditions, now enjoyed by 21 million Americans — begins to flow, it is nearly impossible politically to stop it.

Thomas Jefferson and Alexander Hamilton, who hated each other, did have one public point of agreement. Namely, if the public treasury becomes a public trough, and the public recognizes that, voters will only send to Washington those who promise to bring home the biggest piece of the pie — even if it is unconstitutional.

Copyright 2019 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Constitutional Theory, Obamacare, Supreme Court 
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  1. anonymous[340] • Disclaimer says:

    “When the Supreme Court took a preliminary vote after oral arguments on the constitutionality of the individual mandate, the tally was 5 to 4 to invalidate it. Then Chief Justice John Roberts had second thoughts. He saw the polls, which showed Mitt Romney safely ahead of President Barack Obama in the then upcoming presidential race, and Republicans looking good to capture Congress. He reasoned to his colleagues that it would be better for history and the court’s legacy if the political branches invalidated legislation as controversial as the ACA, rather than the court.”

    Where does Mr. Napolitano get his political gossip? He never cites a source or provides a link. Has this been reported elsewhere? If not, it seems odd to read of it years later.

    Maybe doing the Winchell/Kilgallen thing goes along with serving as St. Mueller’s altar boy.

  2. Scores of countries in the early 21st Century offer their citizens universal health coverage, including ones we wouldn’t consider very developed or wealthy. Conservatives might not like this, but it has become one of the general trends in civilization:

    • Replies: @anon
    , @VagabondTheElder
  3. anonymous[197] • Disclaimer says:

    “When the ACA was enacted in 2010, it was a stool with four legs.”

    Looks like the guido Napolitano is trying to break into comedy. A judge he’s not.

  4. MarkinLA says:

    That change can seriously undermine the credibility of the DOJ.

    Which part of the US government has any credibility left? So, why cry about DOJ’s?

  5. Anonymous [AKA "Mr. Blissmeister"] says:

    So, Judge, you say the government can create a tax against me if I don’t agree to where a tie. The Constitution describes only two taxing powers allowed the Federal Government: Direct Taxes and Indirect Taxes. My first question to you is: Which category would the “Mandatory Necktie Tax”
    fall into? The Constitution further restricts Congress’ taxing authority by specifying that Direct Taxes must be “apportioned”, while Indirect Taxes must be “uniform”. We know “apportionment”
    refers to the requirement for the tax to be quantified by reference to the number of Congressional Representatives a Union State has. Meaning a State with a smaller population would pay the Federal Government less tax dollars than would A State with a larger population. Also, it would be the State’s Legislators who would be responsible for coming up with the money, by convincing the people who elected them that the Federal Government did indeed have a legitimate need for the money. There is no mention in the Constitution wherein one might imagine the tax as any sort of “punishment” for the people doing or not doing something. Indirect Taxes, on the other hand, are a bit more simple to explain. Indirect Taxes are laid upon privileges, which are activities the people may be engaged in, and which are allowed to be regulated as such by the Constitution.
    So, Judge, I ask once again: Which type of tax does the AFC Act penalty clause fall under? And, please, explain how you arrived at your conclusion.

  6. anon[199] • Disclaimer says:

    good, you pay for it

  7. Taxing an American for being alive goes against the concept of

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

    If I posses liberty, how am I to be punished for being alive and choosing not to participate in a health insurance scheme? This was a tax on being a living citizen; taxing life, rejecting liberty.

    Some root for Ginsberg’s death, I give offerings to my Gods in hope that Roberts finds his death sooner than she does.

  8. @advancedatheist

    Find a constitutional way to pay for it. Try a gas tax, try an import tax, try a stamp tax, but fuck if the US government has a right to tax the people for being alive.

  9. The libertarians and conservatives who have written books about the Constitution flailed in the Obamacare litigation because they do not understand the US Individual Income Tax, the 16th Amendment, the ting clauses in the Constitution, and so left the door open forJustice Roberts’ legal ju-jitso.
    Specifically, they contended that if the individual mandate was a tax, it would be n unconstitutional, UN-apportioned direct tax. But, income taxes are excise taxes. The Supreme Ct has said so, over and over, even before, and certainly after, the passage of the most misunderstood Amendment XVI.
    If Randy Barrett understood this, they could have boxed Roberts in.
    The corrrct reasoning is that if the individual mandate is indeed a tax and therefore an indirect excise, it can only apply to those whose income comes from the exploitation of a federal privilege for profit, ie federal workers, primarily. The federal government does not have the extensive taxing power Napolitano ascribes to it. Rather, Judge Marshal’s decision in McCullogh v Maryland circumscibed that power. The federal governments taxing power is dependent on its sovereignty. It an only tax that which it creates, or exists by its permission. All it’s taxing power comes from the powers delegated by the Constitution. It cannot simply tax anything it wants.
    Judge Roberts in NFIB vs Sebelius gave us a summary of federal taxing powers. In that summary, he specifically stated the Feds can tax “certain licensed occupations “. Why is this distinction even expressed, when the current income tax is supposed to tax all occupations?
    If Barnett and the other Constitutional experts understood the income tax, they would have Undestood the mandate could only apply to those under federal sovereignty, ie federal workers and private contractors on federal payroll. So, the Feds can require its own workers to have health insurance, but not the public at large, who are non-taxpayers. He who pays the piper, calls the tune.
    Fortunately, a libertarian named Pete Hendrickson understands the income tax, and how to file a proper tax return. Armed with this knowledge, many thousands have received full refunds of all withheld taxes, state and federal, including payroll taxes, since 2003. See

  10. KenH says:

    You can blame Chief Justice Roberts of the SCOTUS’ cuck wing for this fiasco. The government cannot compel commerce which the individual mandate provision of the ACA does then levy a fine on anyone who fails to buy health insurance.

    Prior to Roberts flipping the (((media))) were running all kinds of stories about Roberts being a racist if he ruled against ACA and that he had a chance to “get it right” by ruling in favor of Obama’s ACA baby. And Roberts was obviously listening intently to the (((voices))) calling to him.

    John Roberts did not rule based on the plain language of the statue. His opinion went beyond mere judicial activism and he actually rewrote the law from the bench to change the “fine” for not purchasing a healthcare plan into a “tax” since according to him that’s what the (((framers))) of Obamacare really meant to say.

    And voila! The ACA is suddenly Cohenstitutional since the feds can tax anything under the sun! Even judge nappy concurs.

    But this is still bad law and legal precedent since the federal government can’t tax you for not engaging in a form of commerce when they only have power to regulate interstate commerce, not compel it and fine those not engaging in compulsory commerce.

  11. buckwheat says:

    God I hate Napolitano, this worthless hack belongs in a home for senile politicians that should have been hanged but weren’t.

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