Bill of Rights - a piece of toilet paper for the Supreme Court?Submitted by tumetuestumefai... on Mon, 07/02/2012 - 01:13
The 9th Amendment to the US Constitution reads:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In my opinion the Supreme Court violated this prohibition of very certain legal constructions when it have construed that the imposing of the penalty for not concluding the contract of the health insurance is a "tax" imposed rightfully using the taxation clause from the enumeration of the Congress powers in the Art. I sec. 8 of the US Constitution.
Justice Roberts in support of his argumentation even used the 1895 Hooper v. California quote:
"every reasonable construction must be resorted to, in order to save a statute from unconstitutionality" (page 38 of the ruling)
(This from the context ripped quote, good to note, comes from a ruling about a state, not federal law, moreover even more notably in a commerce clause not the taxation clause case.)
Although maybe correct in the Hopper v California in this Obamacare case is such argumentation clearly inherently flawed. -The construction of the penalty as "tax" in fact doesn't save the statute (still reading "penalty"), but deceptively rewrites it to make completely different meaning "tax", moreover with the absolutely clear and only intent: to give the government not primarily a source of revenue, but an unconstitutional right to create new coercive powers against recognized peoples rights.
The "penalty" is certainly something else than a "tax" - both in practical and legal sense. -And what else it is than a penalty if one is doomed to become coerced into concluding a contract of health insurance and if he anyway does not want to conclude it and pay whole the life the insurance, then pay whole the life anyway to IRS a considerable amount of money without obtaining any benefit of the insurance whatsoever.
Good to note the Supreme Court in the same ruling quite clearly recognized the natural right of the people not to purchase the insurance. And this right was clearly disparaged with the same Supreme Court ruling - construing that the Congress (and therefore in practical consquence the executive government agency IRS) has the right to use its taxation power to charge the people a tax for purpose of coercing them into waiving their right not to conclude contract of the health insurance.
Such judicial legislation activism construing the right of the government to impose taxes clearly not for primary purpose of creating revenue, but for purpose of coercing the people (who usually don't have the health insurance, because they don't have enough money for paying it) not only into buying the insurance, but into a solidarity (with the other people who have the money and have the insurance and with the federal government bureaucracy pursuing purportedly socially beneficial policies) and coercing them to conclude a contract - is plain and simple illegal - not just because generally the coercing into contracts is illegal and the resulting contracts are null or at least voidable (as the disenters Scalia, Kennedy, Thomas and Alito indeed acknowledge at the page 159 of the ruling - and especially when signed with "in protest" statement), but because such a disparagement of the peoples rights is quite explicitely prohibited by the US Constitution.
Indeed the Supreme Court in the same ruling syllabus states:
"The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. (page 3 of the ruling syllabus)
The federal government has the right to use its power (i.e. to impose taxes), but generally it is prohibited to use it for the purpose of coercing people into waiving their rights i.e right of not buying something they voluntarily and knowingly don't want.
Additionally, the same Supreme Court ruling strucked down the penalization of the states if they don't participate in the expansion of the Medicaid - which according to Justice Roberts " rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ (page 53 of the ruling).
So why the penalty is upheld for the individual people if they voluntarily and knowingly don't want participate in the health insurance resp. accept its terms of the contract and conclude it? (Maybe not just because they don't have money, but i.e. also because they don't want to participate in expensive, inefficient, by FDA, CDC... regulation monopoly administered system, or they prefer pay cash for what they really want at the moment - not pay in advance for something or something else a system will maybe, and maybe not, prepare for them, including all the bureaucracy coming with it etc.)
Does it mean the States (which sued the federal government in this case) getting the federal subsidies (yes paid by taxpayer money) have right not to be penalized (perhaps simply because it would be really absurd for federal government first subsidize the States and then get the subsidies back using a penalization), while the individual people, who don't receive the federal subsidies have not such right?
The Supreme Court clearly has no right whatsoever to impose taxes and definitely not for the purpose of construing the unconstitutional penalties (imposed by the federal government for not concluding a contract) legal.
It is notable that Justice Roberts in his opinion invoked the 180 years old justice Story quote:
"No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution. (page 37 of the ruling)
Why he absurdly used it to defend the ruling where he then with the majority of the court justices violated by their ruling the 9th Amendment?
And I really wonder why this doesn't make headlines - because it is quite clearly an illegal attempt of an unprecedented extension of the federal power on the expenses of the peoples rights and one of the highest increase of the taxes in the history of USA.
Although it is not widely known it in fact was the documented intent of the 9th Amendment framers - quite exactly to prevent constructive enlargements of the federal power. James Madison wrote the 9th Amendment demanded by states to limit federal powers, the amendment which was discussed so fervently that the disputes about it delayed the ratification of the Bill of Rights more than 2 years.
"Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power." (Kurt T. Lash: The Lost Original Meaning of the Ninth Amendment, Texas Law Review, Volume 83, Number 2, December 2004)
What else it is than the constructive enlargement of the federal powers when the US Supreme Court - by mere loose interpretation and in direct contradiction to the letter of the statute - gives the government right to tax for primary purpose of coercing people into doing and paying what the government wants them to pay and do, moreover coerce them so into a conclusion of a contract?
Such a precedent would be in my opinion extremely dangerous, opening a whole new category of government despotical coercive powers using the army of the IRS thugs especially directed against poor people.
I believe it should be struck down by ruling of the local courts that the use of this Supreme Court ruling as precedent for enforcing the individual mandate is unconstitutional for violation of the 9th Amendment prohibition and therefore the individual mandate should become unenforceable due to the supreme law of the land clause in the Art. 6 of the US Constitution.
In my opinion the local courts could throw any of the penalty enforcement cases arising under the ACA after 2014 on this basis. I am pretty sure that such precedents would at least hold much more water than this individual mandate ruling by the federal Supreme Court.
A warning for the end: I live in EU where the individual mandate was introduced decades ago. Of course nobody from government called it a tax then. In the beginning it was also burdened with a minor penalty imposed for not paying the insurance. But it was then obviously too mild and many paid neither the insurance, nor the penalties. So they then passed draconian measures. Not only the penalties rose considerably and now are much higher than the insurance itself and are extrajudicially enforceable by so called private executors using property seizures and levies - which continues to ruin the poorest people - but in our country you can now end for as much as 10 years in prison for evading health insurance payments and it is now under the very same criminal statute as tax evasion.
What we unfortunately don't have in EU is the 9th Amendment, so we are absolutely defenceless against such injustices.