A constitutional perfect storm?

At American Thinker, Larrey Anderson takes a cautious view of the chances for success in the suits by state Attorneys General against ObamaCare, especially the individual mandate, because the states have since the Great Depression largely cooperated in the cession of power to Washington. It’s a point well-taken, though I disagree with his example of the interstate highway system; I think that clearly falls under the Commerce Clause.

However, Mr. Anderson does believe that a combination of suits from the states and individuals harmed by ObamaCare might well have a chance. In a rather shotgun approach, he argues for relief based on more than half the Bill of Rights, specifically the 4th, 5th, 6th, 7th, 8th, and 9th amendments. Follow the link above for the full article, but I want to quote his argument regarding the 5th amendment, which quite matches my own thinking. The hypothetical situation is that of a woman who chooses not to get insurance for herself, and then contests the penalty the IRS assesses against her:

The “penalty” is a violation of the young mother’s 5th Amendment rights: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis mine.]

Since the IRS will garnish the mother’s wages, there will be no due process for the mother without a protracted legal battle through many strata of bureaucracies. The woman’s money is her private property. It is being taken from her, for public use, without any (let alone “just”) compensation.

I think this is inherently correct, though an attack based on this reasoning would likely meet a lot of resistance, because it could be interpreted as a challenge to the whole of the IRS’ administrative enforcement powers.  However, by combining the the taking of private property without just compensation condition with the lack of due process, an argument can be made limited to the specific abuse of power, not the structure of IRS enforcement in total.

Anderson also makes an interesting and ironic argument related to the 9th amendment, which protects the unenumerated rights of the people.

Finally, the mother could sue under the 9th Amendment. The 9th Amendment is short and sweet:

  • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


What is interesting about the possibility of a 9th Amendment challenge to ObamaCare is that previous “progressive” decisions issued by the Supreme Court could offer some of the best ammunition for the case that the legislation is unconstitutional.

Anderson cites the precedent of Griswold v. Connecticut, a birth-control case that laid the legal foundation for Roe v. Wade, and which relied heavily on 9th amendment protections. He again makes an interesting argument that the same 9th amendment reasoning applied in Griswold also applies against the Federal government’s claim to the power to enforce an individual mandate. Since Griswold and the cases based on it are darlings of the progressive Left, it would be ironic indeed if the same amendment and constitutional logic were used to undo the Left’s golden-calf legislation.

RELATED: Some earlier thoughts on the matter.

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3 Responses to A constitutional perfect storm?

  1. Porkchop says:

    The 5th Amendment is a classic part of the “you don’t have to pay income tax” argument, which is total bullshit used (unsuccessfully) by tax evaders for years.

    How is it different from being “forced” to pay Medicare/Medicaid taxes, which have been taken out of people’s checks for years? Check your pay-stub, people!

    • Phineas Fahrquar says:

      That argument has never made sense to me because the 16th amendment made income taxes part of the Constitution. Per se, they cannot be unconstitutional.

      But, there’s an argument to be made that these penalties are not taxes (arguing from legislative intent) and that, therefore, these are not covered by the 16th. They’re also not fees, because you’re not getting a specific service in return: you don’t get health coverage when you pay the penalty. So it would seem to me there is a “illegal taking” argument to be made here. But I’ll grant that the distinction between taxes, fees, and penalties seems to be “whatever is convenient for the speaker;” it’s one of the slipperiest in government. (Our recent legislative battles often involve the definition of taxes vs. fees.)

      • Porkchop says:

        By that logic, you shouldn’t have to pay penalties when you file late, commit fraud, or just don’t pay your taxes either. Really?

        The guy even refutes his own argument in the section you quote: she’s got due process, and it isn’t due process just because she (in theory) doesn’t want to pay legal fees.

        The Feds already force you to pay for medical insurance: Medicare/Medicaid comes out of FICA. They take the money right out of your paycheck. If people still want to fight this battle, they’re going to need a frickin’ time machine to go back 45 years.

        Why oh why are people focusing on the bullshit tactics when there are actual, real, substantive approaches that might actually have an impact? Is it all about creating hysteria and fear to use as election-time leverage?

        Fees ARE taxes. Anytime the government takes money from you, it is a tax. Calling it something else is just semantics. Frex, your guy Romney claims he didn’t raise taxes, but he increased every frickin’ fee he could, doubling, tripling, quadrupling them or more. Postage stamps? If they’re issued by the government, they’re a tax.

        The bottom line is where the money goes. Do you think the funds/fees/taxes/whatever are targeted to the department that collects them? Frak no! They go into the general fund and get spread around. For a long time, whether or not Social Security or the US Post Office were considered part of the US Budget depended on whether or not they were running a surplus… as far as I know, they still handle Social Security the same way.

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