Obamacare suffers from a counter-majoritarian difficulty: It was rammed through Congress by Barack Obama, Nancy Pelosi, and Harry Reid over the clear opposition of a majority of the American people – a majority that remains opposed today! Usually, it is judicial review that is criticized for being counter-majoritarian, as when the nine old men blocked FDR and his popular New Deal policies. But with Obamacare, the most democratic thing the Supreme Court could do is to strike down this hated law in its entirety and send it back to Congress for a second look. This law could never survive if it were put up again for a vote even in a national referendum.
The legal sophists who defend the healthcare mandate say that it just creates a mild income tax incentive for people to buy health insurance. Sure President Obama said that the healthcare mandate was not a tax but that was just to fool all the bitter rubes who love God and guns. Everyone inside the beltway always knew the mandate was really a tax, and the Supreme Court has to uphold it because Congress can tax anything to promote the general welfare even if the taxable event is the failure of one person to buy something being sold by someone else. The fact that Congress has never ever done this in 220 years means nothing since there is a first time for everything.
And, of course, a mild tax incentive, once validated as constitutional by the Supreme Court today, can be made a financially ruinous tax incentive tomorrow if Congress raises the tax penalty from say 600 dollars a person to 6 million dollars a person for failing to buy health insurance. As Chief Justice John Marshall said in McCulloch v. Maryland, “The power to tax involves the power to destroy.” And, if Congress can enact tax incentives to “encourage” you to buy health insurance then why not a tax incentive to reward people who buy and eat broccoli or who work out in the gym 30 minutes a day? Doesn’t that promote the general welfare? Why not a tax incentive to “encourage” people with two healthy kidneys to donate a kidney to one of the thousands of people who die of kidney failure each year thereby saving lives?
From each according to his ability to each according to his needs? Why not a tax incentive to reward or punish women who have abortions? Why not a tax incentive for the elderly and the terminally ill to consider assisted suicide? There is no end to the number of income tax incentives Congress can and will come up with either to “encourage” us to buy things we do not want to buy or to “encourage” us to buy politically correct healthcare or healthcare being sold by politically powerful BIG BUSINESSES like the pharmaceutical companies or Blue Cross/Blue Shield. The Tax Anti-Injunction Act does not apply to laws that are overly broad and that chill people from asserting fundamental constitutional rights.
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