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Blakeman: Supreme Court is De Facto Legislature

By    |   Thursday, 28 June 2012 07:06 PM EDT

Bradley A. Blakeman's Perspective: If ever there was an example of judicial activism and a court legislating from the bench, look no further than the Chief Justice of the Supreme Court’s majority opinion on Obamacare.

The Supreme Court of the United States became a de facto legislature when it decided that Obamacare is constitutionally grounded in Congress’ powers to tax — in spite of the fact that President Obama and the Democrats in Congress who carried the bill insisted that it was not.

The Obamacare legislation as written does not set forth that it is established as part of Congress’ powers to levy taxes. If it had, there never would have been a challenge to the high court.

The ruling raises a number of questions:
  • If the bill is silent as to the funding of it, how is it possible for the court to interpret the intent of Congress?
  • Isn’t it the job of the Supreme Court to remand the bill back to Congress for further consideration as the basis upon which the bill is sustained constitutionally?
  • Where does the Supreme Court get the power to act in the place of Congress?
The court routinely remands cases back to inferior courts for further determination.

Isn’t that what the Supreme Court did just the other day on immigration, when they remanded Arizona’s immigration case back to the 9th Circuit for further consideration?

In 2009, shortly before the president addressed a joint session of Congress, he granted an interview to ABC News’ George Stephanopooulos in which he made clear that his healthcare bill would not be sustained through taxation on any American:

STEPHANOPOULOS: “You were against the individual mandate?”

OBAMA: “Yes.”

STEPHANOPOULOS: “Under this mandate, the government is forcing people to spend money, fining you if you don't. How is that not a tax?”

OBAMA: “Well, hold on a second, George. Here — here's what's happening. You and I are both paying $900, on average — our families — in higher premiums because of uncompensated care. Now what I've said is that if you can't afford health insurance, you certainly shouldn't be punished for that. That's just piling on. If, on the other hand, we're giving tax credits, we've set up an exchange, you are now part of a big pool, we've driven down the costs, we've done everything we can and you actually can afford health insurance, but you've just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care . . .”

STEPHANOPOULOS: “That may be, but it's still a tax increase.”

OBAMA: “No. That's not true, George. The — for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.”

STEPHANOPOULOS: “But it may be fair, it may be good public policy . . .”
OBAMA: “No, but — but, George, you — you can't just make up that language and decide that that's called a tax increase . . .”

STEPHANOPOULOS: “Here's the . . .”

OBAMA: “What — what — if I — if I say that right now your premiums are going to be going up by 5, or 8, or 10 percent next year and you say well, that's not a tax increase; but, on the other hand, if I say that I don't want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then . . .”

STEPHANOPOULOS: “I — I don't think I'm making it up. Merriam Webster's dictionary: Tax — ‘a charge, usually of money, imposed by authority on persons or property for public purposes.’"

OBAMA: “George, the fact that you looked up Merriam's dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition. I mean what . . .”

STEPHANOPOULOS: “Well, no, but . . .”

OBAMA: “. . . what you're saying is?”

STEPHANOPOULOS: “I wanted to check for myself. But your critics say it is a tax increase.”

OBAMA: “My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but . . .”

STEPHANOPOULOS: “But you reject that it's a tax increase?”
OBAMA: “I absolutely reject that notion.”

In 2009, in an attempt to sell Obamacare the president also said this:

I can make a firm pledge — under my plan, no family making less that $250,000 a year will see any form of tax increase.”

In spite of the President’s and Congresses assertions that Obamacare is not a tax — and in spite of the fact that the bill is silent with respect to being further taxation, the Solicitor General argued that Obamacare is sustained through Congress’ power to tax.

The Supreme Court’s decision affirmed that Obamacare is in fact a tax and as such that every American has an additional tax liability for the cost of healthcare today, tomorrow, and forever unless the law is overturned.

The good news is the court did not rule that federally funded health care was a right under the Constitution; instead it ruled that healthcare can be mandated through taxation.

The elections of 2012 have just become a referendum on federally mandated healthcare.

The Supreme Court may be the court of “last resort” but it does not have the final word on this issue — the people do.

It is up to the people on November 6, 2012 to decide if Obamacare stays or goes.

Power to the people!

Bradley A. Blakeman served as deputy assistant to President George W. Bush from 2001-04. He is currently a professor of Politics and Public Policy at Georgetown University and a frequent contributor to Fox News Opinion. Read more reports from Bradley Blakeman — Click Here Now.

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Thursday, 28 June 2012 07:06 PM
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