From The National Review Online

Obamacare’s Unconstitutional Origins
Tax legislation has to originate in the House; the health-care law didn’t.
By Andrew McCarthy

Excerpt:

It is worth pausing here briefly to rehearse an argument often made in these pages before the Supreme Court ruling two summers ago. The justices’ resolution, whatever it was to be, would in no way be an endorsement of Obamacare; it would merely reflect the fact that our Constitution, designed for a free people, permits all manner of foolishness. “Constitutional” does not necessarily mean “good.” What Obamacare always needed was a political reversal in Congress. Thus, it was unwise for Republicans to become passive while hoping the justices would do their heavy lifting for them — both because it was unlikely that this Supreme Court would invalidate Obamacare and because a ruling upholding it would inevitably be used by the most demagogic administration in history as a judicial stamp of approval for socialized medicine.

Contrary to Obama’s latest dissembling, the Supreme Court’s decision is far from an imprimatur. The president insisted that Obamacare was not a tax, famously upbraiding George Stephanopoulos of the Democratic-Media Complex for insolently suggesting otherwise. Yet, the narrow Court majority held that the mammoth statute could be upheld only as an exercise of Congress’s power to tax — i.e., contrary to Obama’s conscriptive theory, it was not within Congress’s commerce power to coerce Americans, as a condition of living in this country, to purchase a commodity, including health insurance.

Note the crucial qualifier: Obamacare could be upheld only as a tax. Not that Obamacare is necessarily a legitimate tax. To be a legitimate tax measure, Obamacare would have to have complied with all the Constitution’s conditions for the imposition of taxes. Because Democrats stubbornly maintained that their unilateral handiwork was not a tax, its legitimacy vel non as a tax has not been explored. Indeed, it is because Obamacare’s enactment was induced by fraud — a massive confiscation masquerading as ordinary regulatory legislation so Democrats could pretend not to be raising taxes — that the chief justice was wrong to rebrand it post facto and thus become a participant in the fraud.

HKO

I am no lawyer, but this is a fascinating proposition. If it was not a tax then it was unconstitutional. If it is a tax then it is unconstitutional for a different reason. Is it possible that the same law could come before the Supreme Court for two different reasons? Was its origin in the Senate considered by the Supremes?

What a mess. At its best this law is a major fraud, promoted and passed as not being a tax and then ruled constitutional only because it is a tax.

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