The IUSB Vision Weblog

The way to crush the middle class is to grind them between the millstones of taxation and inflation. – Vladimir Lenin

Obama Administration Lawyer to Federal Court: If a citizen does not want to buy the forced ObamaCare mandate, all they have to do is eliminate their income and go into poverty to not qualify…

Posted by iusbvision on June 2, 2011

Have we had enough of this kind of nonsense yet?

 

This is kind of technical and legalistic, but this is the argument the government is making to the court. They are also arguing that there are no limits to government power under the “Commerce Clause” and the “Necessary & Proper Clause”. This takes the entire idea of limited government and tosses it out the window, just as this web site said was one of the goals of the legislation back in 2009.

Washington Examiner

President Obama’s solicitor general, defending the national health care law on Wednesday, told a federal appeals court that Americans who didn’t like the individual mandate could always avoid it by choosing to earn less money.

Neal Kumar Katyal, the acting solicitor general, made the argument under questioning before the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, which was considering an appeal by the Thomas More Law Center. (Listen to oral arguments here.)  The three-judge panel, which was comprised of two Republican-appointed judges and a Democratic-appointed judge, expressed more skepticism about the government’s defense of the health care law than the Fourth Circuit panel that heard the Virginia-based Obamacare challenge last month in Richmond. The Fourth Circuit panel was made up entirely of Democrats, and two of the judges were appointed by Obama himself.

During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”

Kaytal responded by noting that the there’s a provision in the health care law that allows people to avoid the mandate.

“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Hotel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”

Sutton interjected, “That wasn’t in a single speech given in Congress about this…the idea that the solution if you don’t like it is make a little less money.”

The so-called “hardship exemption” in the health care law is limited, and only applies to people who cannot obtain insurance for less than 8 percent of their income. So earning less isn’t necessarily a solution, because it could then qualify the person for government-subsidized insurance.

Throughout the oral arguments, Kaytal struggled to respond to the panel’s concerns about what the limits of Congressional power would be if the courts ruled that they have the ability under the Commerce Clause to force individuals to purchase something.

Sutton said it would it be “hard to see this limit” in Congressional power if the mandate is upheld, and he honed in on the word “regulate” in the Commerce clause, explaining that the word implies you’re in a market. “You don’t put them in the market to regulate them,” he said.

In arguments before the Fourth Circuit last month, Kaytal also struggled with a judge’s question about what to do with the word “regulate,” to the point where the judge asked him to sit down to come up with an answer. (More on that exchange here). Kaytal has fallen back on the Necessary and Proper clause, insisting that it gives broader leeway to Congress.

Judge James Graham, a Reagan district court appointee who is temporarily hearing cases on the appeals court, said, “I hear your arguments about the power of Congress under the Commerce Clause, and I’m having difficulty seeing how there is any limit to the power as you’re defining it.”

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