Obamacare is Still Unconstitutional

by Gerard Emershaw

Back in the 1970s, one of the first absurdist catchphrases from NBC’s “Saturday Night Live” to enter into the zeitgeist was Chevy Chase’s “Francisco Franco is still dead.” Well, Franco is still dead. And more than a year after “Roberts’ Folly,” Obamacare is still unconstitutional. 

1. Even if Obamacare’s individual mandate is a tax and not a penalty, it is an unconstitutional direct tax.
2. If it is a tax, it was a tax imposed by the Supreme Court since Congress intended it to be a penalty. Therefore, the individual mandate and Obamacare as a whole is unconstitutional.
3. Even if Congress had always intended for the individual mandate to be a tax and not a penalty, the Obamacare bill originated in the Senate. According to the Constitution, tax bills must originate in the House of Representatives.
4. Even if the individual mandate “tax” had originated in the House, it is still constitutionally dubious in that it is a tax for doing nothing rather than a tax for doing something.

“Roberts’ Folly” is likely to haunt the nation in ways similar to the first version of “Roberts’ Folly”—the votes of Justice Owen Roberts in favor of the constitutionality of unemployment insurance and Social Security in Steward Machine Company v. Davis and Helvering v. Davis respectively in 1937. Like unemployment insurance and Social Security, Obamacare is unconstitutional. Alas, all three are forever ingrained in the bloated federal government.