- The Washington Times - Friday, October 15, 2010

ANALYSIS/OPINION:

Legal arguments for Obamacare’s individ -ual mandate fail the “Alice in Wonder- land” test and the duck test. In two court challenges to the law in the past 11 days and a court hearing today on a third, the Obama administration’s legal position is fading faster than the Cheshire Cat.

Democrats took some solace from the first case, a challenge in Michigan, because Judge George C. Steeh ultimately ruled in favor of Obamacare. Yet even though that Clinton-appointed judge refused to declare the mandate unconstitutional, he undercut the administration’s key argument that the penalty for failing to buy insurance is a “tax,” and that the mandate it enforces is allowable within the broad taxing power provided by the Constitution. “The provisions of the Health Care Reform Act at issue here, for the most part, have nothing to do with the assessment or collection of taxes,” Judge Steeh ruled.

This is so important that the federal district judge in Florida, in Thursday’s preliminary ruling in the second case, spent 22 pages analyzing it. If the fine is a penalty rather than a tax, Congress‘ power is far less extensive. Judge Roger Vinson noted Congress repeatedly called the fine a “penalty,” explicitly changing its description from a “tax” that earlier versions of the bill assessed by name. Citing Alice’s admonition to Humpty Dumpty that words can’t “mean so many different things” as Humpty intended, Judge Vinson concluded, “Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing … [only to] argue in court that Congress really meant something else entirely.”

Judge Vinson explained that no matter what Congress called it, the assessment was designed to act as a punishment, not a revenue measure. Hence, it’s not a tax. His 22-page analysis is an exposition of the logic that if something is called a duck, acts like a duck and quacks like a duck, it’s a duck - and the same goes for a penalty.

The tax issue is vital because it’s the Obama administration’s fallback position if it loses on the first and biggest dispute, which is whether Congress has the power under the Commerce Clause not only to regulate commerce, but to force individuals to engage in specific commerce. “At this stage in the litigation, this is not even a close call,” Judge Vinson stated. “The power [claimed by the administration] is simply without prior precedent.”

Judge Henry E. Hudson in Virginia reached the same conclusion in a preliminary ruling in the third case against Obamacare. He wrote that the mandate doesn’t regulate commerce, as the Constitution allows, but instead regulates “a virtual state of repose - or idleness - the converse of activity.” Judge Hudson hears oral arguments in that case today. He ought to deliver another strong blow against Obamacare so that not even the king’s horses can put the law together again.

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