The Day Freedom Died: Roberts Renders Political Decision Upholding Obamacare Mandate as a Tax

Washington, D.C. (June 28, 2012) — Today, the United States Supreme Court upheld the individual mandate of the Patient Protection and Affordable Care Act in a 5 to 4 decision, with Chief Justice Roberts siding with the liberal wing of the Court in what can only be described as a political decision.  In a strange twist, the Court upheld the individual mandate under Congress’ taxing and spending power, holding that the “penalty” for not purchasing insurance was actually a tax.  Accordingly, the Court, through the opinion of Chief Justice Roberts, did not sustain the individual mandate as a command to buy healthcare insurance pursuant to the Commerce Clause, but as a “tax” pursuant to Congress’ taxing and spending power if they didn’t.  This conclusion is remarkable because Congress called it a “penalty” and not a tax, and President Obama insisted throughout that it was not a tax.

American Freedom Law Center (AFLC) Co-Founder and Senior Counsel David Yerushalmi commented, “Chief Justice Roberts’ role here was absolutely political and not juristic.  He attempted to play Solomon by splitting the baby, but he lacked any of the wisdom of Solomon, who knew the mother would not allow him to go through with it.  Here, knowing the law was unconstitutional, he split the baby perversely by ruling that it was not a tax under the Anti-Injunction Act, but it was a tax for taxing and spending purposes even though Congress said it was a penalty and not a tax.  And Roberts still had to twist further like a pretzel to hold that it was not an unconstitutional Direct Tax, even though that is exactly what it is, if it is a tax.”

After President Barack Obama signed the law on March 23, 2010, AFLC Co-Founders and Senior Counsel Robert Muise and David Yerushalmi filed the first federal lawsuit challenging the constitutionality of the Act.  Muise argued the case on appeal before the U.S. Court of Appeals for the Sixth Circuit.  The acting Solicitor General for the United States argued for the government.  Muise and Yerushalmi also filed a petition for review in the Supreme Court as well as a “friend of the court” brief, asking the Court to strike down the Obamacare mandate.

At the heart of the litigation was whether Congress had the authority to mandate that private citizens purchase and maintain minimum essential health care coverage under penalty of federal law.  At no time in our Nation’s history has Congress ever sought to exercise such power, nor, for that matter, has it ever assumed that it had the authority to do so under any provision of the U.S. Constitution.  In fact, in 1994, the Congressional Budget Office made the following relevant observation:  “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.  The government has never required people to buy any good or service as a condition of lawful residence in the United States.” 

AFLC Co-Founder and Senior Counsel Robert Muise commented: “This is a shocking decision, one that should concern all Americans.  Prior to today, it was absolutely clear that there were structural limits upon the federal government’s power to regulate private conduct.  As the dissent points out, today’s decision makes ‘mere breathing in and out’ the basis for federal regulation and thus grants the federal government the power to regulate virtually all spheres of human activity.  This is a sad day for America and for our constitutional republic.”

Muise concluded: “Indeed, this ruling highlights the critical importance of the work we are doing at the American Freedom Law Center to fight for our fundamental rights and freedoms.  We must now sharpen our sword and redouble our efforts to minimize the effects of this ruling on our cherished freedoms.  Make no mistake, we are at a pivotal time in our Nation’s history, and its future hangs in the balance.” 

NOTE: AFLC Senior Counsel Robert Muise will be available for interview and commentary throughout the day as the story develops.  You may reach him directly at (734) 635-3756.

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