6/29/12, "ObamaCare Lost on the Medicaid Mandate & Commerce Power. It May Yet Lose on the Tax Power.," Cato@Liberty, Michael F. Cannon
"Supporters of the Obama health law are incorrectly reading the Supreme Court’s ruling as a victory.
First, the ruling severely limited the Obama health law’s Medicaid expansion, effectively giving states the green light to refuse to expand their Medicaid programs. Coupled with the fact that the statute already enables states to block the other half-trillion dollars of new entitlement spending, the law is in a very precarious position.
Second, the Court ruled 5-4 that the individual mandate is not a legitimate use of the Commerce Power. That too is a defeat for the government, even if it is of no immediate consequence.
Third, while the Court upheld the individual mandate as a tax, that ruling may be vulnerable to legal challenge.
Chief Justice Roberts wrote, “The Federal Government ‘is acknowledged by all to be one of enumerated powers,’” and, “The Constitution’s express conferral of some powers makes clear that it does not grant others.” So it is interesting that Roberts did not specify exactly what type of constitutionally authorized tax the mandate is.
As Cato chairman Bob Levy wrote in 2011, that’s not an easy thing to do....
Roberts agreed: ”A tax on going without health insurance does not fall within any recognized category of direct tax.” But then what kind of constitutionally authorized tax is it?
The dissent suggests the Court has given this issue scant attention....
There is even less discussion about what type of constitutionally authorized tax the mandate is.
I’m not a lawyer. But it seems to me there may be room here for the same individual citizens who brought this case to again file suit against the federal government for trying to impose an unconstitutional tax. It may seem unlikely that Roberts would reverse himself on the Tax Power issue. Then again, since he never specified what type of constitutionally permissible tax the mandate is,
- perhaps voting to strike the mandate would not be reversing himself." via Free Republic