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Rubio Backs Constitutional Amendment Banning Obamacare Mandate

June 4, 2013

Until this week, Republican Congressman Steven Palazzo of Mississippi's Katrina ravaged 4th district was best known for his opposition to federal aid for New York and New Jersey in the wake of super storm Sandy. Now thanks to his partnership with Florida Senator and 2016 GOP White House hopeful Marco Rubio, Palazzo will be known for something just as galling. On Tuesday, Rubio endorsed Palazzo's "Right to Refuse" amendment which makes the Obamacare individual health insurance mandate unconstitutional. Unfortunately, the simple language declaring "Congress shall make no law that imposes a tax on a failure to purchase goods or services" would likely make Social Security and Medicare illegal as well.

Never one to miss an opportunity for grandstanding, Senator Rubio last week jumped on the IRS imbroglio to call for the repeal of Obamacare because of the agency's role in the Affordable Care Act. This week, Rubio joined Palazzo in trying to undo the Congress' taxation power that the Roberts' Supreme Court cited as the basis for upholding Obamacare. As Fox News reported:

Sen. Marco Rubio, R-Fla., announced Tuesday that he is proposing an amendment to the U.S. constitution that would effectively invalidate the requirement under ObamaCare that nearly everybody buy health insurance.
The proposed amendment, named the "Right to Refuse" amendment, would make it unconstitutional for Congress to enact a law that imposes a tax on citizens who fail to purchase goods or services Congress has deemed mandatory. The idea is that it would apply to the so-called individual mandate, which was interpreted in 2012 as a tax.

Explaining his rationale, Rubio proclaimed, "We should put our faith in the American people to decide what goods and services they want to buy."
Of course, "we" long ago decided that we must buy some products and services or face tax penalties--or worse. Among those mandated purchases are the pension and old-age health care systems known as Social Security and Medicare.
Justice Ruth Bader Ginsburg made precisely that point during the Supreme Court oral arguments in the Affordable Care Act case last year. As the AP recounted:

Ginsburg brought up Social Security as an example, likening it to a government old-age annuity that everyone is forced to purchase.
"It just seems very strange to me that there's no question we can have a Social Security system (despite) all the people who say: 'I'm being forced to pay for something I don't want,'" she said.
"There's something very odd about that, that the government can take over the whole thing and we all say, 'Oh, yes that's fine,' but if the government wants to ... preserve private insurers, it can't do that."

For his part, Justice Anthony Kennedy "mused that Congress could have created a Medicare-style program for the uninsured, run exclusively by the government without the involvement of private insurers." Regardless, in his majority opinion Chief Justice John Roberts concluded:

Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.

To be sure, there are negative legal consequences to not paying the payroll taxes for Social Security and Medicare. (160 million working Americans pay them every year, compared to just four million the CBO estimates will pay a penalty rather than purchase insurance as required by the Affordable Care Act). If you have any lingering doubts that you must purchase these mandated public products for your old-age health care and retirement income, these prosecutions should disabuse you of that notion.
As ThinkProgress explained, Congress also provides myriad tax breaks to Americans for other products and services they purchase:

There is simply nothing novel about the Affordable Care Act's requirement that most people either carry insurance or pay slightly more income taxes. The tax code gives tax breaks to people who take out mortgages or who buy products making their homes more energy efficient. A law giving tax breaks to people who buy health insurance -- which is what the Affordable Care Act does -- is no different.

Of course, for Marco Rubio and Steve Palazzo, there is one difference between the Affordable Care Act and all the other mandates, penalties and incentives contained in the U.S. tax code. The ACA has Barack Obama's name on it.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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