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Quote of the Day: Taxpayer Privacy and IRS Abuse

At CFIF, the issue of improving taxpayer privacy and protection against persistent abuse by the Internal Revenue Service (IRS) remains among our most important missions.  Among the abuses that we've chronicled is the case of convicted criminal Charles Littlejohn, who rejoined the IRS in 2017 with the specific purpose of illegally breaching and leaking the private tax returns of Donald Trump and other Americans to radical left-wing organizations like ProPublica.

In The Wall Street Journal this week, one of those victims speaks out on his own experience and the need for greater taxpayer protection against this recurring problem that should terrify all Americans of every political persuasion.  Ira Stoll, whose tax information was passed to ProPublica, even helpfully details how…[more]

May 29, 2024 • 11:28 AM

Liberty Update

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New Legal Challenge May Unravel ObamaCare Print
By Timothy H. Lee
Thursday, April 05 2018
Consequently, the flimsy 'tax' reed sustaining ObamaCare according to the Supreme Court in 2012 no longer exists.

Most Americans understandably consider ObamaCare's legality a settled question, following the Supreme Court's notoriously contorted 2012 NFIB v. Sebilius 5-4 majority decision by Chief Justice John Roberts. 

A new challenge filed in federal court earlier this year by twenty state attorneys general, however, presents a novel and potentially fatal challenge to Barack Obama's ramshackle signature legislation. 

Adding delicious irony, Chief Justice Roberts's dubious legal rationalization planted the very seed that may trigger its own time-delayed demise. 

Compounding that irony, the tax cut legislation signed into law by President Trump provides the specific mechanism for ObamaCare's possible unraveling. 

By way of legal refresher, Obama, then-Speaker of the House Nancy Pelosi (D - California) and then-Senate Majority Leader Harry Reid (D - Nevada) could have simply opted to pass ObamaCare under the federal government's taxation power.  That's because Article I, Section 8 of the Constitution empowers Congress "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States."  Accordingly, they could've simply increased taxes on American citizens, then directed those dollars toward ObamaCare. 

Had they chosen that path, ObamaCare wouldn't have even been before the Supreme Court in 2012. 

But to do so would've forced them to admit that ObamaCare by definition increased taxes, including on taxpayers below Obama's promised $200,000 threshold, which they deemed politically untenable. 

So instead, they rationalized ObamaCare and its individual mandate under the Constitution's Commerce Clause, which empowers the federal government to regulate commerce traversing state lines.  The problem is that there was no existing commerce to regulate.  Rather, ObamaCare sought to compel involuntary commerce by forcing the purchase of insurance via the individual mandate. 

In other words, the federal government was attempting to force unwilling citizens to engage in interstate commerce in order to regulate it. 

That obviously would've eliminated any limiting principle to the Commerce Clause and rendered it superfluous.   After all, the Founding Fathers couldn't have limited federal authority to matters involving interstate commerce, only to empower Congress to compel commerce in any area of life in order to regulate it. 

But that was of little import to Obama, Pelosi and Reid, who simply wanted ObamaCare passed. 

Fortunately, the Supreme Court under Chief Justice Roberts at least rejected that bizarre constitutional rationalization.  By affirming a limiting principle to the Commerce Clause, and holding that there must actually be some existing interstate commerce to regulate, the Court deserves credit that it doesn't often receive. 

Unfortunately, as noted above, the majority nevertheless sustained ObamaCare by labeling it a "tax" even though Obama himself explicitly denied during interviews and press conferences that it was a tax, and even though the Pelosi-Reid Congress did not designate it as such. 

Here was Obama, in an interview with ABC News's George Stephanopoulos on September 20, 2009: 

Obama:  For us to say that you've got to take responsibility to get health insurance is absolutely not a tax increase. 

Stephanopoulos:  But your critics say it is a tax increase. 

Obama:  My critics say everything is a tax increase.  My critics say that I'm taking over every sector of the economy.  You know that.  Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but... 

Stephanopoulos:  But you reject that it's a tax increase? 

Obama:  I absolutely reject that notion. 

So the Supreme Court upheld ObamaCare on the basis that it constituted a tax. 

But then a funny thing happened.  Namely, Donald Trump was elected President, and Congress passed comprehensive tax reform, which President Trump quickly signed into law. 

And among that legislation's provisions?  The elimination of ObamaCare's individual mandate tax penalty. 

Consequently, the flimsy "tax" reed sustaining ObamaCare according to the Supreme Court in 2012 no longer exists. 

On that basis, twenty states filed a federal lawsuit earlier this year in the Northern District of Texas on the basis that no Congressional taxing power underlies ObamaCare, rendering it unlawful.  Those states include Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin. 

Texas Attorney General Ken Paxton summarized the logic cogently: 

Texans have known all along that ObamaCare is unlawful, and a divided Supreme Court's approval rested solely on the flimsy support of Congress's authority to tax.  Congress has now kicked that flimsy support from beneath the law.  The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional.  With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of ObamaCare once and for all. 

The tax cuts signed by President Trump have already accelerated economic growth and American incomes.  Should it additionally provide the basis for finally overturning ObamaCare, its place in the pantheon of great legislation in U.S. history will be secure. 

Notable Quote   
"Georgia Secretary of State Brad Raffensperger says Democrats have tipped their hand to their desire to unleash noncitizen voting by opposing his state's citizenship verification in court and he is urging elections chiefs in other states to fight such lawsuits.Georgia's citizenship verification system has prevented noncitizens from getting on state voter rolls, but the state had to defend it in court…[more]
— Natalia Mittelstadt, Just the News
Liberty Poll   

Which would be the most useful for voters: a televised presidential debate that only includes Trump and Biden or one that adds Kennedy?