Thursday, July 05, 2012
Why the HHS Mandate Will Stand
After John Roberts had to violate the Law of Non-Contradiction (ObamaCare is now both a tax and not a tax at the same time and in the same manner), I don't see any particular reason the HHS Mandate would be struck down.
ObamaCare stands because the government CANNOT use the commerce clause, but CAN use its taxing authority. So, ObamaCare is NOT a tax when we vote for it or pay it, but it IS a tax when it is considered as to its constitutionality.
The HHS Mandate can absolutely work the same way.
The Mandate would, in this scenario, just be part of Congressional taxing authority. When a church is using an insurance company, Congress can tax the insurance company. And when the church is acting as its own insurance company, it is, for purposes of the mandate, an insurance company first, not a church.
So, while Congress cannot tax a church, it CAN tax an insurance agency, even if it turns out that the insurance agency is a church (that is, the church is insuring itself). The HHS Mandate would be legal to enforce upon churches because the Congress is taxing an insurance company, not a church.
See how easy that was?
Now that Roberts has demonstrated that he's stark, raving mad, there is no "constitutional" reason to think the HHS Mandate will not stand.
Actually, there can be a legitimate use of enumerated powers by Congress, that is exercised in a way that violates 1st Amendment rights. That is what the HHS Mandate filings are asserting. They do not question the power to regulate healthcare, they are asserting that it is done in a way that violates the 1st Amendment (among other procedural and statutory claims.) Trust me I have read the filings and claims.
ReplyDeleteYes, and those claims won't necessarily have any merit because Roberts is saying a thing can both be and not be at the same time in the same manner.
ReplyDeleteHe can argue that the HHS Mandate should go forward because the government isn't restricting religious liberty, it's just requiring insurance companies do something.
Insurance companies are not religious organizations.
Now, the counter-claim is that many churches self-insure. But Roberts can just say, "Look, the mandate does not restrict religious expression. It just says that all insurance companies have to cover this, even if that insurance company happens to be a church."
If the Constitution can require us to pay a tax simply for breathing, then certainly every insurance company can be compelled to follow the mandate, even if that insurance company is a church.