â€œI will — listen now — I will cut taxes — cut taxes — for 95 percent of all working families, because, in an economy like this, the last thing we should do is raise taxes on the middle class.â€ (Obamaâ€™s acceptance speech at the 2008 Democratic convention.)
Whether it was to save himself from being labeled a liar for raising everyoneâ€™s taxes or to hustle ObamaCare through Congress, on ABC News last September Obama scoffed at the idea that the â€œindividual mandateâ€ is a tax.
Congress inserted the â€œindividual mandateâ€ into ObamaCare citing its power to regulate interstate commerce under the Commerce Clause.
Substituting for Rush Limbaugh behind the â€œGolden EIB Microphone,â€ Mark Steyn recently did a very funny riff on how the entire Constitution has been distilled down to Commerce Clause. Our dear old Constitution is just one giant Commerce Clause; every power flows from it. Upshot: Congress can do whatever it wants.
But Steyn neglected the other surviving remnant of the Constitution: the power to tax.
In responding to the statesâ€™ suits against ObamaCare, Obamaâ€™s lawyers now contend that the â€œindividual mandateâ€ is a tax after all. (Will the bait-and-switch ever end?)
Some might wish that ObamaCare were still being defended with the Commerce Clause, as America needs clarity on the limits of that pesky clause. But a defense based on the taxing prerogative of the feds sets up what might be an even more vital precedent. The argument the states should now use to combat ObamaCare is the 14th Amendmentâ€™s Equal Protection Clause.
The â€œindividual mandateâ€ is unconstitutional because it will be applied unequally. It seems some individuals are more equal than others — they are exempted from paying this new tax.
Among those exempted are the poor, who, last we checked, were still individuals. But inability to pay a tax is no excuse. If one canâ€™t pay sales tax, one canâ€™t buy things. If one canâ€™t pay oneâ€™s property tax, one canâ€™t license oneâ€™s car. If one canâ€™t pay the tax on oneâ€™s income, the I.R.S. sends one to jail.
Individuals who are members of a â€œrecognized religious sectâ€ also wonâ€™t be required to pay the tax: H.R.3590, Sec. 5000A, (d) (2). Exemption of government-approved religions is unequal on its face. Do we really want Congress or, even worse, un-elected bureaucrats deciding for us what is a legitimate religion? We donâ€™t exempt members of preferred sects from paying their income taxes, sales taxes, etc. Such exceptional treatment is entirely un-American. (But hey, weâ€™re all Amish now.)
Most taxes in America are levied on assets and transactions. If one owns an asset, one pays taxes on it. If one passes an asset on through a transaction or transfer, one is also taxed. But this new-fangled tax in ObamaCare is something altogether different. It is a tax on the individual himself, not his income, purchases, real estate, capital gains, etc.
Therefore, each individual must pay the tax. And each individual must pay the same amount, down to the penny. But this is not the case with ObamaCare, where the various health insurance companies will charge different premiums. It should be noted tha