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Back in Sept 2009, during one of those rare times George Stephanopoulos actually challenged a Democratic Party position, the ABC commentator argued against the president’s contention that the individual mandate in Obamacare was not a tax increase. Once the oppressive piece of legislation was  passed, and twenty states launched a law suit against what the President told Stephanopoulos was a mandate, the federal government argued in court that the suit should be dropped because it wasn’t a mandate it was a tax.  Federal District Court Judge Roger Vinson was not happy with the flip-flop.

In their brief defending the law, the Justice Department said the requirement for people to carry insurance or pay the penalty is “a valid exercise” of Congress’s power to impose taxes.  Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.

…Under the Constitution, Congress can exercise its taxing power to provide for the “general welfare.” It is for Congress, not courts, to decide which taxes are “conducive to the general welfare,” the Supreme Court said 73 years ago in upholding the Social Security Act.

But the DOJ left out one important bit of information. The law describes the levy on the uninsured as a “penalty” rather than a tax. In its argument the Justice Department brushed aside the distinction, saying “the statutory label” does not matter.

The federal government’s change in position on this issue earned a strong rebuke from Judge Vinson, who used the Justice Department’s own arguments about congressional accountability against them:

[I]t is obvious that Congress did not pass the penalty, in the version of the legislation that is now “the Act,” as a tax under its taxing authority, but rather as a penalty pursuant to its Commerce Clause power. . . . And, now that it has passed into law on that basis, government attorneys have come into this court and argued that it was a tax after all. This rather significant shift in position, if permitted, could have the consequence of allowing Congress to avoid the very same accountability that was identified by the government’s counsel in the Virginia case as a check on Congress’s broad taxing power in the first place. . . . .

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.

The Government found a fall-back position but the judge thought that was nonsense also:

With the Alice-in-Wonderland taxing argument taken away, the government is left with only one constitutional rationalization for the mandate: that forcing individuals who are not engaging in commerce regarding insurance contracts to enter into contracts for insurance with private, third-part insurers is somehow a regulation of interstate commerce.  The government argued that this use of congressional authority was nothing unusual, and that the case should be dismissed.  The Court disagreed, finding the question of whether to allow the claim “not even a close call.”  The Judge found that “[t]he power that the individual mandate seeks to harness is simply without prior precedent”—contrary to the government’s “nothing to see here” argument.   Demonstrating the breadth of the regulatory scheme, the Court noted:

The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.

Today’s ruling doesn’t mean the war has been won,  it simply means that the suit can proceed. There is still a long way to go, but it certainly was a positive move in the bid to make the government take a step back off our backs.

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