Being Right: Defending the Indefensible



Emily Butler

On Monday, the Supreme Court began hearing arguments debating the consti-tutionality of Obamacare, as it relates to the commerce clause. Essentially, the issue is whether the Obama administration’s healthcare law violates congressional authority to regulate commerce.

Proponents of Obamacare hope that a technicality will prevent the court from ruling on the issue until 2015, as they argue that the 1867 law called the Anti-Injunction Act prevents lawsuits against federal tax programs like ObamaCare until a citizen has actually paid the tax. However, the justices seem poised to make a ruling on this hotly contested issue soon. They hinted that this technicality is not relevant, because nowhere in the 2,700 page law is the word “tax” used, instead it calls for a penalty for those who do not abide by the individual mandate. Even Justice Ruth Bader Ginsburg, a traditionally liberal jus-tice, stated that this isn’t a revenue-raising measure, because if the program is successful, no one will pay the penalty. In other words, the government will have successfully forced every American to purchase health insurance, regardless of whether the citizens wanted to.

It seems that the Obama Administration is once again going back on its words. Solici-tor General Don Verrilli is presenting the government’s case, arguing that the penalty for not obtaining health insurance is not a tax when claiming that the Anti-Injunction Act is not applicable, but then later contending that the same penalty is in fact a tax when argu-ing that Congress has the authority to enact a tax, making ObamaCare harmonize with the commerce clause.

In fact, Justice Samuel Alito questioned Verrilli on this very contradiction, ask-ing whether the court had ever held that something was a tax under the Constitu-tion but not a tax under a specific law. There seems to be several holes in the government’s argument.

Justice Anthony Kennedy, expected to be a swing vote in the decision, questioned the defense by asking if it is legal to create commerce in order to regulate it.

In order to confirm the law’s validity, the Obama Administration is attempting to paint the healthcare realm as a market, a tactic several members of the court called into question. It’s like saying that the food industry is one market, which simply isn’t a plausible simplification.

Further, Verrilli was put on the defensive again Tuesday, when Justice Antonin Scalia asked him how far the government could go with the kind of terrifying precedent such a mandate would set. The Justice attributed the individual mandate to purchase health insurance to the government forcing citizens to purchase broccoli, while Chief Justice John Roberts made the same comparison to cell phones. Obviously, such a requirement is unconstitutional.

Frankly, we should feel bad for Mr. Verrilli, as the media is calling his defense a train wreck, due to the fact that this administration is asking him to defend the indefensible.

Regardless of details about specific legal jargon used in formulating the law, the essen-tial issue at stake is whether government has the authority to issue the type of mandate for which Obamacare calls.

Simply put, the answer is no, an answer that Americans should expect of their highest court, if it is to follow its purpose: to enforce the Constitution of the United States. An individual mandate is an affront to a free society.

Most outrageous is the fact that the decision about Obamacare had to get to the Su-preme Court. It is inconceivable that Congress would pass a law that is so recognizably unconstitutional. Americans should take this opportunity to hold their representatives responsible for this unimaginable blunder.

The fact of the matter is that the Obama Administration is attempting to fundamen-tally change the relationship people have with government, a change that Justice Kennedy said had a burden for justification, which the Obama administration does not provide. A fundamental change such as this cannot and will not stand in the United States of America, the standard for freedom on Earth.

Contact Emily Butler at [email protected]