Sometimes you hate being right.
In chapter 4 of our book, "The Blueprint: Obama's Plan to Subvert the Constitution and Build an Imperial Presidency," we make the point that Team Obama would try to pull a fast one when it comes to Obamacare's individual mandate that everyone reading this blog post needs to buy health insurance, or be subject to a penalty payable to your good friends at the IRS.
We first made this argument in a column we co-authored with Senator Orrin Hatch in The Wall Street Journal back in January. Now this issue has suddenly exploded back into the news.
For months, Team Obama has been saying that the individual mandate is authorized by Congress' power to regulate interstate commerce, as found in the Commerce Clause.
We explain in our book why that argument is a loser in court, and that the White House would have to pull a bait-and-switch and suddenly argue that the mandate is a tax (violating Obama's promise not to raise taxes on anyone making less than $250K per year).
Looks like we were right. In their first filing against the multi-state lawsuit challenging Obamacare, Team Obama is now arguing that the individual mandate is... a tax.
If you read chapter 4 of our book, though, after we explain how the mandate is not authorized by the Commerce Clause, we then go on to explain how it is also unconstitutional if it's a tax.
Evidently worried about this, Team Obama then goes on to argue that if the court doesn't buy the tax argument either (because the argument is bogus, perhaps?), then it's still justified under the General Welfare Clause.
Anticipating that, our next section in chapter 4 explains why the mandate is also not authorized by the General Welfare Clause.
We close that section by noting that one thing you're taught in law school is that the General Welfare Clause doesn't authorize the federal government to do anything. It is a limitation on federal power, not a source of additional power.
When you cite the General Welfare Clause, you're grasping at straws. That's exactly what Team Obama is doing. Their legal argument is desperate, because the Obamacare mandate is unconstitutional.
With the vote on Elena Kagan's confirmation to the Supreme Court looming, this issue could not be more timely.
We need federal courts that will uphold the Constitution's limits on federal power. They can start by striking down Obamacare.
Ken Blackwell is a senior fellow with the Family Research Council and visiting professor at Liberty University School of Law. Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union. Blackwell and Klukowski are co-authors of "The Blueprint: Obama's Plan to Subvert the Constitution and Build an Imperial Presidency."
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Ken Blackwell, a former domestic policy adviser to the Trump/Pence Transition Team, is a former Secretary of State and State Treasurer for the state of Ohio and former mayor of Cincinnati.