ACRU Senior Fellow Ken Blackwell and ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing July 22, 2010, on BigGovernment.com.
In the Wall Street Journal today, we discuss why the Obamacare mandate is not a tax, and even if it were, it would still be unconstitutional. But there's much more to the story, which could forever change the reach of federal power.
The Wall Street Journal piece, and what follows, comes from our intensive research for our new book, The Blueprint: Obama's Plan to Subvert the Constitution and Build an Imperial Presidency. Chapter 4 explains why Obamacare is unconstitutional, and how to defeat it in federal court.
In addition to what's said in WSJ, you need to know why the individual mandate that everyone buy insurance is worse than a tax. In 234 years of American history, we've always had taxes. Too many.
But Obamacare's mandate is not a tax. A tax is where government raises money by taking your money and spending it. The mandate, by contrast, is the government commanding you to give your own money to someone else. It's the first time in American history that the government is claiming the power to tell you how to spend your own money. It's authoritarian.
Second, this doesn't let Obama off the hook, because he thought it was a tax. That means that when he denied on national television that the mandate is a tax—and arrogantly laughed at the reporter asking the question—he was saying something that he believed was untrue.
There was a joke in the 1990s: "How do you know when Bill Clinton is lying? You see his lips moving." It's no joke—in fact it's tragic—that the same narrative is starting to catch on to Barack Obama only a year into his presidency.
But more disturbing even than Obama's tax argument in court are the two other arguments he's making, which we anticipated in The Blueprint.
The first is that the General Welfare Clause authorizes the mandate. That's wrong. The Supreme Court has held that the General Welfare Clause grants no power to the government whatsoever. It limits power, requiring that any tax must be for national welfare, instead of one state's welfare.
The Court explained that otherwise "general welfare" could empower government to do anything it wants. That's exactly what's happening.
Same with the second, arguing that the mandate is authorized by the Necessary and Proper Clause, which says that the feds can do things "necessary and proper" to carrying out its functions. Again, this claims the power to do anything he says is "necessary and proper" for America.
These things have never been allowed since 1776. This is where Kagan's confirmation becomes so important, because these constitutional safeguards could be destroyed if the Court doesn't uphold them.
We wish it were as simple as President Obama breaking his promise about raising taxes. The reality is much worse.