Today we learned from the United States Supreme Court that ObamaCare is – no matter what the President said or Congress intended – the largest tax increase in U.S. history!
Because Liberty Counsel has been so intensely involved in this case and has received such generous support in our battle from friends like you, I have written a substantial initial review of this astounding ruling for you.
Patrick, please take the time to read this message to the end – we are witnessing one of the most important events in American history. I firmly believe that you can still play a vital role in how all of this will ultimately turn out! God bless you as you read – Mat.
Today’s ruling by the Supreme Court on ObamaCare is stunning, to say the least. However, there is a silver lining to the general disappointment we all feel which I will explain a bit later. But first, I will address the decision.
As I said, you deserve more than a “sound-bite” treatment on this amazing event, so please read this entire message. I am shocked, but am in no way discouraged, by today’s ruling. I want you, Patrick, to share in my underlying certainty that God is going to turn this lamentable situation into a good thing for America and her people.
If you would prefer, you can also listen to the special audio message I have recorded for you by clicking here:
++First, the bad news.
As you doubtless know, by a 5-4 majority, the Supreme Court upheld ObamaCare as being a permissible tax under the Constitution’s Taxing and Spending Clause.
This is a truly shocking outcome for several reasons. Congress stated in the law that its authority was derived from the Commerce Clause, not the Taxing and Spending Clause. The statue designates the monetary imposition for failure to obtain insurance as a penalty, not a tax.
There are other provisions in the law where Congress intended a tax, like the much-ridiculed tax on tanning beds. But, the individual mandate was always denominated as a penalty, and not a tax.
In fact, the statute itself says that Congress relied on the Commerce Clause to pass the law.
Further, President Obama said publically on many occasions (and quite emphatically) that the individual mandate penalty was not a tax. Congress did not promote the law as a tax. It would have been politically unpopular to do so, especially when President Obama was saying he did not want to raise taxes on the middle class.
The arguments in the lower courts were primarily focused on whether Congress had the authority under the Commerce Clause because it was well-understood that the Department of Justice raised the argument of Taxing and Spending only as its THIRD backup argument.
The Government arguments in the order of preference for the law being constitutional were the Commerce Clause, the Necessary and Proper Clause, and finally the Taxing and Spending Clause – only if all else failed!
At the Supreme Court, the oral argument probably contained no more than 50 words on whether the mandate was authorized under the Taxing and Spending Clause, and the government’s written brief was similarly almost silent on this issue. The argument at the Court clearly focused on the Commerce Clause.
++Chief Justice Robert’s ruling is quite troubling.
Chief Justice Roberts did a huge disservice to this ruling by siding with the liberal Justices on the Tax issue (Justices Kagan, Sotomayor, Breyer, and Ginsburg). When he realized he was leaning this way, he should have reset the case for oral argument to focus on this specific issue.
As it came down, there was very little focus on this issue at all! It is incomprehensible why the Chief Justice would not have the case reargued on this point.
++Justice Kagan’s role in the decision is also troubling.
The ruling upholding ObamaCare now brings into sharp focus the issue of Justice Elena Kagan’s refusal to recuse herself. Had she done so – and I believe she should have recused herself based on her substantial participation in the Government’s case in her earlier role as U.S. Solicitor General – the vote on the Taxing and Spending Clause would have been 4-4, meaning there would have been no majority.
The case would then have turned on the Commerce Clause, in favor of ruling the law unconstitutional.
++If the mandate is a tax, what about the Anti-Injunction Act?
Another problem with the Taxing and Spending ruling is, frankly, that it makes no legal sense! The Anti-Injunction Act (AIA) is a federal law that prevents suits involving taxes from being considered until the tax is paid and a refund sought. Until that time, the courts lack jurisdiction to entertain a challenge to the law.
Yet here, the Court says the AIA does not apply, but the mandate is actually a tax. This is nonsense! If it is a tax, then the AIA applies, and suit could not be brought until the tax is imposed, which will not be until 2014 or thereafter. Until that time, the courts lack jurisdiction to rule.
++A silver lining to this bewildering, disturbing ruling.
Here is the good news: By a 5-4 majority, the Court ruled that Congress lacks the authority under the Commerce Clause to pass the individual mandate. In other words, Congress lacks authority to force people to buy health insurance. Congress cannot regulate noncommercial inactivity (failure or refusal to buy health insurance).
Actually, this part of the Court’s decision is great news because had ObamaCare been upheld under the Commerce Clause, Congress would have unlimited authority to regulate our lives. If that was their ruling, today Congress could force you to buy health insurance, and tomorrow or any subsequent day, to join a health club, eat vegetables, or buy a certain kind of car.
There is good language in the opinion about how Congress lacks such authority, which was the main focus of the case. Chief Justice Roberts sided here with Justices Kennedy, Scalia, Alito, and Thomas.
And, there is more good news: This ruling will hang a millstone around President Obama’s neck during this election year because he can no longer say he does not want to tax the middle class!
As 2008 gave us ObamaCare, I think 2012 will take it away!
I believe this ruling will powerfully activate the American people to throw out Big Government socialists and give a tremendous boost to candidates who run on a platform that includes repealing ObamaCare.
Here’s the best news: I believe we will see the repeal or defunding of ObamaCare in 2013 with the seating of a new Congress.
++This enormous mess CAN be undone!
Repealing or defunding ObamaCare will undo this mess since the case was decided on the Taxing and Spending Clause. That part of the case will not have ongoing negative consequences once ObamaCare is repealed or defunded because passing a future tax is very politically unpopular and such legislation must always involve enormous tax increases.
In other words, while congressional authority to tax and spend is very broad, it cannot force you to do certain activities other than to pay the tax. Saying it slightly differently, you can be taxed for Medicare/Medicaid, but cannot be forced to accept such coverage.
However, IF the Court had upheld ObamaCare under the Commerce Clause, you could still repeal the law, but the expansive power would remain for future Congresses to use. The authority of Congress to regulate and to force us to act would have been unlimited!
Patrick, this is the bullet we dodged with this ruling. Shockingly, there are four people on the Court (all appointed by liberal Democrats) who actually think that Congress has such expansive authority. Elections do have consequences!
++The Supreme Court undermined the people’s confidence in the rule of law with this ruling.
At the end of the day, this ruling badly undermines the Supreme Court’s credibility, but will greatly energize the grassroots to get involved and vote. This will result in new faces in Washington, DC, in 2013.
Thank God, we dodged the Commerce Clause bullet, which would have been disastrous! The ruling is both stunning and is a major surprise, but it could have been far worse (one more vote and we would have a radically different America).
I believe we can clean up the mess left by the Court’s perplexing and disappointing ruling! That must be our task moving forward.
++Liberty Counsel’s case will now go forward again!
One final note: Our case of Liberty University v. Geithner will be conferenced at the Supreme Court and sent back to the Fourth Circuit Court of Appeals.
We still have the First Amendment Free Exercise argument regarding forced abortion funding to be decided! You have doubtless been watching many recent lawsuits on the HHS mandate over forced abortion funding.
Our case squarely addresses that issue and we will continue to pursue that claim! Before we finish litigating, however, we fully intend to fight to change the composition of Congress and the administration and repeal the entire law. We will be intensely working BOTH fronts, I assure you!
++Liberty Counsel’s promises to you.
Thank you for taking the time to read my rather long initial impression of today’s historic Supreme Court ruling. You deserve nothing less than a full perspective on this very complex issue today!
Now, here are my iron-clad promises…
We will NOT surrender critical healthcare decisions for our families to power-hungry bureaucrats!
We will NOT cave in to arrogant statists who are using every opportunity to seize entire industries at a time!
We will NOT bow to the liberal “progressive” political machine that shamelessly betrayed the constitutional trust that was given to the Obama administration as elected officials!
We will NOT stand by and allow anti-life, ant-family and anti-liberty mandates to define our American culture and undermine the very pillars of our society.
Because of friends like you, Liberty Counsel has become one of the leading voices for faith and freedom in the nation. Together, we must continue making a powerful impact on the nation’s legal and public policy processes.
Will you consider making a tax-deductible gift right now so our team can recast our strategies to deal with this astounding decision and continue to fight against the rise of Big Government, radical pro-homosexual forces, anti-faith initiatives, the attacks of the ACLU, and other activist legal groups?
Click here to support Liberty Counsel's ongoing litigation efforts, especially our never-say-die (and I mean that with all of my heart) fight to rid our nation of ObamaCare once and for all:
Please continue standing with us! We may have lost a major skirmish today, but the battle is still ours to win!
Your prayers and sacrificial giving make it possible for us to continue. We depend on friends who give $30, $50, $100, $500 - whatever the Lord leads - so we can stay involved and eventually win this battle against statists who want to recast America into a socialist nation.
Please click here to continue your personal fight against the President’s healthcare “reform” law. You can also hear my special audio recording on this ruling:
God bless you and God bless America!
Mathew Staver, Founder and Chairman
P.S. Again, thank you for taking the time to hear me out on this crucially important event. Today’s challenges to liberty, life, and family can sometimes seem overwhelming. But I believe that God has raised us up for such a time as this!
PLEASE help us continue our God-ordained work with a generous gift today. Click here to say, “Yes Mat. I stand with you and Liberty Counsel in the defense of our religious liberties – those same values that I hold dear – and I want to continue the fight until we win the war!”:
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