As I was reading through all of the fallout discussions from Roberts’ decision on Obamacare, it suddenly occurred to me that most of the analysis to date has been done under the assumption that the Commerce Clause was the keystone of the legislation, not the power of Congress to tax. What happens when you look at Obamacare from a perspective of Congress’ ability to tax?
Right off the bat, I thought of the Obamacare waivers being granted to all of his union buddies and assorted other Democratic allies.
It is supposed to be unconstitutional for Congress to pass a tax law targeting an individual or organization. See Bill of Attainder under Article 1, Section 9, Paragraph 3. This was highlighted in recent weeks by the obnoxious political posturing against Eduardo Saverin of Facebook fame, wherein Chuckie Schumer attempted to pass a tax law targeted solely at capturing some of Saverin’s Facebook IPO gains.
So, it is unconstitutional to target a tax penalty against an individual or organization.
Isn’t it thusly unconstitutional to target a tax benefit in favor of a specific individual or organization? Can Congress pass a law allowing an unelected group of bureaucrats to eliminate the tax penalties of specific people for whatever reason they deem appropriate?
How about we have a tax lottery? Some committee in DHS can hold a suggestion contest, “Who Can Come Up with the Least Offensive Way for Us to Play with Your Private Parts”, and the winner is awarded the right to no longer pay federal income tax. Exempt.
Currently, we have a committee in HHS determining who has to pay certain taxes. Can’t some other government committee decide to allow waivers on other taxes? For whatever reason they see fit? Of course not.
The controversy over the Obamacare waivers is not new. Milton Wolf had a great column on this at the Washington Times last year. My question is whether the Supreme Court decision that Obamacare is a tax now means that instead of merely tyrannical, the waivers are, in fact, unconstitutional.