April 22, 2010

3 Reasons Why Obamacare is Unconstitutional Under the Power “To Lay and Collect Taxes”

Robert Levy takes on the constitutionality of Obamacare under the taxing power in National Review. He points to three reasons why Obamacare is unconstitutional.
First, the penalty is not a tax; it’s a fine. The president said as much when confronted with the argument that it violated his promise not to raise taxes on the middle class. ...

Second, even if the penalty for noncompliance is deemed to be a tax rather than a fine, it does not meet the constitutional requirements for income, excise, or direct taxes. ...

The third reason the power to tax cannot justify an insurance mandate is that, even if the penalty is considered a tax and somehow survives the test for apportionment or uniformity, Congress cannot use the taxing power as a backdoor means of regulating an activity, unless the regulation is authorized elsewhere in the Constitution.
Read the whole thing.

RELATED: Randy Barnett discusses Obamacare on the Healthcare Channel.