Attack of the Killer Broccoli*
By Durk Pearson & Sandy Shaw

T he really bad U.S. Supreme Court decision (June 28, 2012) upholding Obamacare means, in case anybody missed it, that the federal government can now force you to buy ANYTHING or force you to pay a penalty without limit if you refuse to buy it. This disastrous (and unconstitutional) increase in federal powers was made possible by the Sixteenth Amendment, from which the feds got the power to tax individual income derived from any source and for any purpose because it was on the basis of the federal government’s taxing power that the mandate in Obamacare was upheld. Note, however, that this is the first time that the taxing power has been used to make people pay a tax for not purchasing something. In the past, taxpayer behavior has been controlled by offering a tax reduction for Congressionally preferred behavior, such as buying an electric car. The Obamacare tax is a BIG difference.

Even though the payment for failing to buy health insurance was described in the statute as a “penalty” it was ruled by 5 members of the U.S. Supreme Court to be a tax as argued in Court by the federal government and was upheld as a tax. The Court ruled that the mandate to purchase health insurance was not supported by the federal government’s powers under the Commerce Clause, which they ruled does not give the federal government the power to command that somebody buy something so as to be part of a regulated form of commerce. Upholding Obamacare were Justices Kagan, Sotomayer, Breyer, Ginsburg, and Chief Justice Roberts, with the Court’s opinion delivered by Roberts. A dissenting opinion was filed by Justices Scalia, Kennedy, Alioto, and Thomas, with a separate dissenting opinion by Thomas.

In our opinion, this Court decision represents a true Constitutional crisis, not only because of a widespread belief that Obamacare is unconstitutional but much more importantly because of the TIMING of the decision during a period of rapidly increasing societal polarization concerning the size and power of the federal government and is likely to precipitate even greater struggle by opposing sides in the U.S. that is both costly and prolonged, with the breakup of the United States a distinct possibility.

The “Silver Lining” in the Obamacare Decision

Here, though, is a completely different “take” on the decision, that it may actually turn out to foment an immense tax revolt by people refusing to pay the Obamacare tax (as the “penalty” was said to be by the majority of justices of the U.S. Supreme Court). Because interestingly the statute establishing Obamacare does NOT permit the IRS to make it a criminal offense to refuse to pay the tax or to use liens to seize the money when it isn’t paid. How then do they propose to get the money when people refuse to pay? The IRS could file a civil (NOT criminal) suit against you to collect the money, but you could demand a jury trial which would cost the government far more than they would be able to collect; you could represent yourself, thus avoiding the need to spend money on a lawyer and since you cannot be required to pay the government’s legal costs in such a suit, all you would risk is the amount of the tax. The other thing the government could do is to notify credit bureaus that you owe back taxes and, presumably, this would have a damaging effect on your credit rating.

There is a real possibility that this decision may stir a rebellion in America the likes of which we have never seen before, at a level approaching that of the American Revolution. What will happen if many millions of Americans refuse to pay the Obamacare “tax”? For one thing, this would mean that Obamacare itself would not be able to function because the entire program depends on being able to force most Americans to join it to supply the necessary number of healthy individuals (who might otherwise pass on health insurance altogether or buy only a minimal policy for catastrophic health coverage) to be able to subsidize the very large numbers of unhealthy people who will be part of the program.

At the same time, however, the provisions in Obamacare that prohibit health insurance companies from charging higher premiums for people with pre-existing medical conditions would, combined with the collapse of Obamacare, ensure that there would be a collapse of the private health insurance industry because the premiums for people in normal health would become unaffordable. (This would fit in with the desires of central planners who WANT to destroy private health insurance so as to force a single-payer system of government health insurance on Americans.)

The result of the decision will, therefore, be costly, but it will without a doubt increase the polarization of America between those seeking more government takeover of private economic activity (such as health insurance) and those seeking to get government out of such activity.

The incentive for a major tax revolt against the central planners is the major “silver lining” in this U.S. Supreme Court decision.

Another important “silver lining” in the decision is that the four “liberal” Justices had to sign on to Chief Justice Roberts’ ruling in order to get the vote they needed to uphold Obamacare and Roberts’ decision included declaring that the Commerce Clause does not give the federal government the power to command that people buy something in order to force them to engage in commerce and thus be subject to the federal government’s power to regulate commerce between the States. The liberal Justices did not like that part of the decision, but signed on to it to achieve the upholding of Obamacare.

The House May Defund the Enforcement of Obamacare

One possible response by the Republicans in the House is to defund enforcement of aspects of Obamacare, such as the collection of the tax by the IRS and, of course, the House has the power to do that since it originates all appropriations bills. If the Senate is controlled by Democrats, they can refuse to pass the budget containing the defunding of Obamacare, but would then get the blame for “shutting down the government.” If the Senate were controlled by Republicans, the Democrats would probably filibuster the bill except the Senate rules prohibit filibusters of bills on taxes. Obama could still veto the budget containing the defunding of Obamacare but then HE would be blamed for shutting down the government (by preventing the passage of a budget). Hence, the political outcome is going to be messy ... very messy.

* Broccoli is just an example that was something of a joke (but not at all funny now) before Obamacare was upheld by 5 of the Supremes, but under the greatly expanded federal powers, being forced to buy broccoli or to pay a tax for not buying it will, unfortunately, be the least of our problems.

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