The ACA was legally voted on in the House and Senate.
The President signed the bill into law.
Its the law of the land.
Not if it violates the limited powers granted to Congress or any of the Constitution's restrictive provisions such as
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken..
What specific tax mentioned in our Constitution is being levied as the shared responsibility payment which is often referred to as the individual mandate? This question has not been answered by the Court. Roberts never answered this question but merely indicated the individual mandate tax levied upon those failing to have federally approved health insurance is to be collected along with income taxes.
We can immediately exclude imposts and duties as being the taxing power allowing the individual mandate tax because imposts and duties are taxes imposed on the import or export of goods.
And in reference to the power to lay and collect excise taxes, excise taxes can be levied upon the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations or upon a privilege granted by government such as a corporate granted charter. An excise tax may also be levied upon a particular piece of property or is use. But I cannot imagine the excise taxing power as it was understood and used by our founding fathers allowing it to be used to levy the Obamacare shared responsibility payment.
With reference to the power to lay and collect taxes on incomes without apportionment, this taxing power requires a realization of profits or gains which then becomes the subject of taxation. But the subject of taxation under the individual mandate is not a profit or gain, collectively called income. The subject matter being taxed under Obamacare is a failure to have federally approved health insurance which triggers the tax and obviously excludes this taxing power to be used to levy the shared responsibility payment.
But we still have Congress power to lay and collect direct taxes, but direct taxes by our Constitution, require an apportionment among the States which Obamacares individual mandate tax fails to do.
When Roberts wrote that
The shared responsibility payment is thus not a direct tax that must be apportioned among the several States, he totally ignored the historical characteristics which identify a direct tax as understood by our founders. In fact, the shared responsibility payment is characteristic of a direct tax! A review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders were familiar with and often referred to with reference to taxation, we find the following reference regarding a capitation tax as being a direct tax:
Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor. Adam Smith, Wealth of Nations, id. at pg. 540.
The shared responsibility payment is in fact to be computed from the wages which a working person earns, and thus takes the form of a direct tax as understood by our founders, and thus requires it to be apportioned when levied!
There seems to be a consistency among the founders comments that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject. For example, Hamilton's brief in the Hylton carriage case which Roberts quoted says:
'The following are presumed to be the only direct taxes: Capitation or poll taxes, taxes on lands and buildings, general assessments, whether on the whole property of individuals, or on their whole real or personal estate. All else must, of necessity, be considered as indirect taxes.'
Is it not a fact that the shared responsibly payment is proposed to be assessed from a working persons annually earned wage, and not upon a thing which the individual is free to acquire or reject?
And so, if Roberts was right and the individual mandate is an exercise of the taxing power, the question remains unanswered as to what tax authorizes Congress to enter a State and directly tax the people therein for not having federally approved health insurance and do so without apportioning the tax among the States? Unfortunately, not one of our conservative media personalities, to the best of my knowledge, and this includes Mark Levin who I am quite fond of, will lay out the above stated argument that Obamacare is not the law of the land, and only those laws made in pursuance of our Constitution can be said to be the law of the land!
The bottom line is, Obamacare is not the "law of the land". It is legislative tyranny backed up by judicial tyranny and would impinge upon a womans fundamental right to make her own medical and health care decisions and choices. And, our courts have repeatedly held that a legislative act which impinges upon a fundamental right is presumptively unconstitutional. For example see: a legislative act which
"impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional." See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)
The Court has also held:
"The mere chilling of a Constitutional right by a penalty on its exercise is patently unconstitutional." Shapiro v. Thompson, 394 U.S. 618.
Are you suggesting a women does not have a fundamental right to make her own medical and health care decisions and choices?
Why do you hate women and are ok with the federal government impinging upon one of their most fundamental rights?
JWK
Obamacare by consent of the governed, Article 5, our Constitution`s amendment process. Tyranny by a majority vote in Congress or a Supreme Court's majority vote
