Strike Three for the Supreme Court on ObamaCare

by | Aug 10, 2021 |

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The constitutional problems with ObamaCare are numerous and well documented. However, the Supreme Court seems bent on twisting the law and facts to keep this abuse of our rights in place. First, the court effectively rewrote the law to shoehorn it into the taxing power of Congress. In the most recent case, the court refused to even hear the argument from over a dozen states. This is strike three for the court.

Lets start with jurisdiction. Texas, joined by over a dozen other states and two individuals, brought suit against federal officials claiming that ObamaCare is no longer constitutional since its individual mandate has been reduced to $0. California, with 15 other states and the District of Columbia, intervened to defend the mandate. I will get into the constitutionality of ObamaCare shortly, but the one thing I want you to note is that the courts decision, in this case, came out of the Fifth Circuit Court of Appeals.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

U.S. Constitution, Article III, Section 2

Since several states are parties to this case, the Supreme Court should have had original jurisdiction, not a lower court. We are, however, so ignorant of the Constitution, I wonder how many Americans even noticed.

A Tax That is Not a Tax

The suit revolves around the requirement of ObamaCare that individuals either maintain a government-defined minimum health insurance coverage or pay a fine. Writing the bill, Congress was very careful to refer to this penalty as a fine, not a tax. When this bill was signed into law, though, it was quickly challenged in court. In what I can only consider a twisting of the law and facts of the case for what I assume was to obtain the desired outcome, Chief Justice Roberts, who wrote the opinion, did not find the individual mandate unconstitutional.

2. CHIEF JUSTICE ROBERTS concluded in Part III-A that the individual mandate is not a valid exercise of Congresss power under the Commerce Clause and the Necessary and Proper Clause. …

(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Acts other reforms. …

CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance if such a construction is reasonable.

NFB v. Sables

The court found that Congress did not have the power to impose the fine either under the Commerce Clause or the Necessary and Proper Clause. Contrary to both the language of the law and the words of the members of Congress, the court decided to rewrite the statute to declare that a fine is a tax. Why is this important?

The Anti-Injunction Act provides that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate.

NFB v. Sebelius

Congress had passed a law stating that before a court can hear a case about the collection of taxes, someone must pay the tax first. The court used this law as an excuse not to hear the case about the individual mandate as a tax since no one had paid it yet. This Anti-Injunction Act is a violation of your right to petition the government for a redress of grievances protected by the First Amendment. Furthermore, as a direct tax on the American people on something other than income, the ObamaCare tax” is also unconstitutional.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union.

U.S. Constitution, Article I, Section 2, Clause 3

The only exception to the apportionment of direct taxes is in the Sixteenth Amendment:

The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

U.S. Constitution, Amendment XVI

Since taxing someone for not doing something is not a legitimate reason for Congress to collect taxes according to Article I, Section 8, Clause 1, allowing the individual mandate to stand as a tax is a triple violation of the Constitution.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;

U.S. Constitution, Article I, Section 8, Clause 1

So the individual mandate, not to mention ObamaCare as a whole, is a giant unconstitutional mess dropped on the American people. And since the court has been either too cowardly or too corrupted to point that out, were still dealing with its stink today.

Then along comes California v. Texas.

The court found the original plaintiffs, Texas et al., did not have the standing to challenge the individual mandate, meaning they were not in a position to sue. Why? Well, it all comes down to the court’s interpretation of injury.’

To have standing, a plaintiff must allege personal injury fairly traceable to the defendants allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno,

California v. Texas Syllabus

According to the court, neither the states nor the individuals who sued have yet to incur any actual injury.

The two individual plaintiffs claim a particularized individual harm in the form of past and future payments necessary to carry the minimum essential coverage that §5000A(a) requires. Assuming this pocketbook injury satisfies the injury element of Article III standing, it is not fairly traceable” to any allegedly unlawful conduct” of which the plaintiffs complain, Allen v. Wright, 468 U. S. 737, 751. Without a penalty for noncompliance, §5000A(a) is unenforceable.

California v. Texas Syllabus

According to the court, since the penalty for the mandate is zero, the individuals in the suit have not come to any actual injury traceable to any allegedly unlawful conduct.”

Texas and the other state plaintiffs have similarly failed to show that the pocketbook injuries they allege are traceable to the Governments allegedly unlawful conduct.

California v. Texas Syllabus

The states in this suit claimed both direct and indirect costs related to enforcing the individual mandate. According to the court, neither the states nor the individual has shown any injury that can be traced back to ObamaCares individual mandate (§5000A(a)).

The States, like the individual plaintiffs, have failed to show how that alleged harm is traceable to the Governments actual or possible action in enforcing §5000A(a)

California v. Texas Syllabus

This legal magic trick has been used before, as the dissent will point out.

Justice Alito wrote the dissent, joined by Justice Gorsuch.

Todays decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.

In the trilogys third episode, the Court is presented with the daunting problem of a tax” that does not tax. Can the taxing power, which saved the day in the first episode, sustain such a curious creature? In 2017, Congress reduced the tax” imposed on Americans who failed to abide by the individual mandate to $0. With that move, the slender reed that supported the decision in NFIB was seemingly cut down, but once again, the Court has found a way to protect the ACA.

In this suit, as I will explain, Texas and the other state plaintiffs have standing, and now that the tax” imposed by the individual mandate is set at $0, the mandate cannot be sustained under the taxing power. As a result, it is clearly unconstitutional, and to the extent that the provisions of the ACA that burden the States are inextricably linked to the individual mandate, they too are unenforceable.

California v. Texas Dissent

Justice Alito then goes on to point out the injuries the states are encountering by enforcing ObamaCare, linking it directly to the law. For this reason, Justice Alito would hold that the States do have standing and goes on to consider the merits of the case itself.


What I found most interesting while reviewing this case is the twisted concept of standing that was used, both by the plaintiffs and the court. I know of no other legal situation where a person is in imminent threat of injury yet does not have the legal right to defend themselves against it. You may be limited in what you can do, but think of what the courts requirement of standing says: The government can do something illegal, they can threaten you, but until they actually injure you, you can do nothing. Thats like saying someone can come to your door and threaten you, but you cannot call the police until they actually hit you.

So this idea that you have to let the government cause you injury, not simply threaten to, in order to have your day in court seems dangerous. Just think of how many illegal laws Congress has passed, but as long as they dont actually apply one of those laws to someone who is willing and able to sue, they can continue to harass the rest of America.

But wait, theres more. The one thing that seems to have been forgotten in this case, and so many others, is the fact that the states, as parties to the Constitution, have a right to seek redress if they can show that their creation (the Federal government) violated their charter. Imagine you and some friends enter into a partnership agreement. In this agreement, you create a business and set the boundaries of its operation. According to the court, that business can violate those boundaries all it wants, as long as it does not injure the partners in a way the court recognizes. Does that sound crazy to anyone else?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


U.S. Constitution, Amendment X

As Ive already shown, in the case of NFB v. Sebelius, the court found that Congress had exceeded its authority to legislate, either under the Commerce or Necessary and Proper clauses. Also, as a direct tax on failure to act, Congress violated both Article I, Section 2, and Section 8 of their charter, the Constitution of the United States. Together, that means that Congress has exercised powers not delegated to the United States by the Constitution. And since these powers had not been prohibited to the States by that same Constitution, Congress has violated the rights of the States by stealing their power. Yet, the court does not recognize this injury when it comes to standing. By depriving the States of the power to control their creation, the Supreme Court has further injured the states.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

Declaration of Independence

By allowing the United States to violate its charter (the Constitution of the United States), the court has deprived the American people of the consent to the powers of government. That means the powers exercised by the federal government are not just.

Why do I tell people not to put their trust in courts? This is an excellent example. Here we have multiple clear violations of the Constitution, yet not only does the court not recognize these violations, but it also piles on further insult to the injury. The American people have forgotten that they created the United States through their states, which includes the Supreme Court. We have been taught to be servants of government, but as Lincoln said:

The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.

Abraham Lincoln

Federal judges are not elected in the hope they would be less political. However, they do not serve lifetime appointments.

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, 

U.S. Constitution, Article III, Section 1

So what can we do about these repeated failures of the Supreme Court? First, as their rightful masters, its up to us to keep them in line. Thats why the sole power of impeachment has been given to the peoplesrepresentatives in the House. If these judges are going to repeatedly violate their oath to support the Constitution, then their bad behavior should be punished.

Second, since ObamaCare is a blatant violation of the Constitution, States should ignore it as the void legislation it is.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Marbury v. Madison Opinion

Only when We the People regain control of our states and our creation in Washington, D.C., do we have a chance of being free.

Paul Engel

Author and speaker Paul Engel has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. That experience helps Paul explain difficult concepts in a way most people can understand. As one manager described, “Paul can take the most complex idea and explain it in a way my grandmother can understand.” Freely admitting that he “learned more about our Constitution from School House Rock (a Saturday morning cartoon) than in 12 years of school,” he says that anyone can be a constitutional scholar. Since 2014 I have been helping everyday Americans read and study the Constitution of their country and teaching the rising generation to be free. Using news and current events as a springboard, I explain the Constitution and encourage others to stand up and secure the blessings of liberty for themselves, their children, and the nation.

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