In 1919, back when the United States was a constitutional republic, Congress passed a child-labor law imposing a 10 percent excise tax on companies that violated it.
A North Carolina furniture maker challenged the law and won. In 1922, the Supreme Court ruled in Bailey v. Drexel Furniture that although child-labor laws have a noble purpose, the means -- Congress using taxing power as a penalty -- was unconstitutional.
This was before Franklin Roosevelt's court-packing threat in 1937 ended the Supreme Court's resistance to grandiose expansions of federal power. The child-labor issue, by the way, was resolved when states enacted laws prohibiting exploitation.
The Drexel decision resurfaced as precedent last year at the Supreme Court in National Federation of Independent Business v. Sebelius. That's where the Roberts court upheld the individual mandate to buy health insurance as an indirect "tax," and thus upheld Obamacare as constitutional.
The court ruled that Congress can't make people buy a product, but that it can tax people who choose not to buy it. Yes, it's as wacky as the 1942 Wickard v. Filburn ruling, in which a farmer was fined under interstate commerce regulations for raising grain for his own cows. And you wonder how the federal government got so big?
In the Obamacare case, the majority justified the "tax" ploy by saying that the individual mandate didn't rise to the level of a "punitive penalty" as rejected in Drexel.
The Roberts court did not extend the “tax” finding to the employer mandate.
This brings us to a glimmer of hope that the court will right the massive wrong of finding Obamacare constitutional. They can do this by ruling for Liberty University, which has sued to overturn the employer mandate on religious freedom grounds. The independent Christian college has several reasons for challenging the employer mandate, but it boils down to the fact that the penalty is so severe that it would bankrupt the college.
In January 2012, the Department of Health and Human Services issued an order implementing Obamacare, formally titled the Patient Protection and Affordable Care Act, or PPACA, by requiring employers that have 50 or more employees to provide "minimum essential coverage" for employees and dependents. The "minimum" includes abortifacients, contraceptives and sterilization. After a public uproar, the department gave Catholic hospitals and faith-based colleges such as Liberty a year to figure out how to violate their consciences. Not even that was offered to businesses like the craft chain Hobby Lobby, whose Christian owners are also refusing to comply and are challenging the law.
In an amicus brief filed on March 6 at the 4th U.S. Circuit Court of Appeals, American Civil Rights Union general counsel Peter Ferrara notes: "If Liberty University complies with the employer mandate it will violate fundamental religious beliefs that life begins at conception, and that abortion is consequently murder of preborn children in their mothers' wombs. The PPACA consequently mandates that the university violate its religious beliefs."
Founded in 1971 by now-deceased evangelist Jerry Falwell, Liberty is the largest Christian college in America, with 12,000 on-campus students and an additional 62,000 pursuing degrees online. In fact, it's the largest private, nonprofit university in the country. Mr. Ferrara's brief explains why the university's refusal to embrace Caesar's immoral mandate would be crushingly expensive.
If even a single employee finds the insurance "unaffordable," defined as when an employee's portion of the premium exceeds 9.5 percent of his household income, fines would be imposed based on all university employees.
"An employer mandate violation can very easily result under the PPACA," Mr. Ferrara explains. "A family of four with a single income-earner will easily make the employer's coverage for his entire workforce 'unaffordable.' If the health insurance for each person in the household costs only $2,500, then the single income-earner would need to make over $100,000 to meet the PPACA employer mandate requirements for an 'affordable' plan. These penalties will quickly become 'massive,' even 'destructive,' which qualifies them as unconstitutional punitive penalties rather than permissible taxes under Drexel Furniture."
Here's more math from Mr. Ferrara: "In 2012, Liberty University employed 6,900 people, with net claims for its self-insured health insurance of $14,214,000. Yet, Liberty University would be fined $20,700,000 ($3,000 times 6,900) if only one employee meets the 9.5 percent "unaffordable" criterion.
"That penalty would be on top of the additional penalty of $2,000 per employee ($13,800,000) that Liberty University would have to pay for providing coverage excluding abortifacients, for a total combined penalty of $34,500,000. That would be in addition to the $14,214,000 that Liberty University paid in claims for its health insurance coverage in 2012."
Result? This would "tax or penalize Liberty University out of existence."
Keep in mind that the Department of Health and Human Services has already issued hundreds of exemptions from portions of Obamacare for the unions that lobbied hard for Obamacare, and for more than 1,000 businesses, many of which donated to Democrats' campaigns.
For the same reasons of conscience cited by Liberty, the individual mandate is an unconstitutional violation of the freedom of religion, the brief contends.
Congress declined to include a severance clause, which would have left Obamacare in place if portions were declared unconstitutional. All parties agreed that without the mandate, the system would collapse.
The Obamacare law itself in Section 1501 says plainly that the individual mandate is crucial. Without it, people would not buy insurance until they needed it.
"This court should declare the employer mandate and individual mandate unconstitutional," the American Civil Rights Union's brief concludes, "and, since those provisions are not severable, should declare the entire act unconstitutional."
The Supreme Court will eventually hear this case. America's health care system is hanging on a wing and a prayer.
Robert Knight is a senior fellow for the American Civil Rights Union and a columnist for The Washington Times.
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