Last Chance to Repair Mr. Roberts' Obamacare Error; Liberty U. Challenges on Religious Liberty Grounds
Byline: Robert Knight, SPECIAL TO THE WASHINGTON TIMES
In 1919, back when the United States was a constitutional republic, Congress passed a child-labor law imposing a 10 percent excise tax on companies that violated it.
A North Carolina furniture maker challenged the law and won. In 1922, the Supreme Court ruled in Bailey v. Drexel Furniture that although child-labor laws have a noble purpose, the means - Congress using taxing power as a penalty - was unconstitutional.
This was before Franklin Roosevelt's court-packing threat in 1937 ended the Supreme Court's resistance to grandiose expansions of federal power. The child-labor issue, by the way, was resolved when states enacted laws prohibiting exploitation.
The Drexel decision resurfaced as precedent last year at the Supreme Court in National Federation of Independent Business v. Sebelius. That's where the Roberts court upheld the individual mandate to buy health insurance as an indirect tax, and thus upheld Obamacare as constitutional.
The court ruled that Congress can't make people buy a product, but that it can tax people who choose not to buy it. Yes, it's as wacky as the 1942 Wickard v. Filburn ruling, in which a farmer was fined under interstate commerce regulations for raising grain for his own cows. And you wonder how the federal government got so big?
In the Obamacare case, the majority justified the tax ploy by saying that the individual mandate didn't rise to the level of a punitive penalty as rejected in Drexel.
The Roberts court also ruled that the employer mandate to provide employee health insurance could not be justified under the Taxing and Spending Clause that the court used to justify the individual mandate because it involves a severe penalty like the one that Drexel struck down.
This brings us to a glimmer of hope that the court will right the massive wrong of finding Obamacare constitutional. They can do this by ruling for Liberty University, which has sued to overturn the employer mandate on religious freedom grounds. The independent Christian college has several reasons for challenging the employer mandate, but it boils down to the fact that the penalty is so severe that it would bankrupt the college.
In January 2012, the Department of Health and Human Services issued an order implementing Obamacare, formally titled the Patient Protection and Affordable Care Act, or PPACA, by requiring employers that have 50 or more employees to provide minimum essential coverage for employees and dependents. The minimum includes abortifacients, contraceptives and sterilization. After a public uproar, the department gave Catholic hospitals and faith-based colleges such as Liberty a year to figure out how to violate their consciences. Not even that was offered to businesses like the craft chain Hobby Lobby, whose Christian owners are also refusing to comply and are challenging the law.
In an amicus brief filed on March 6 at the 4th U.S. Circuit Court of Appeals, American Civil Rights Union general counsel Peter Ferrara notes: If Liberty University complies with the employer mandate ... it will violate fundamental religious beliefs that life begins at conception, and that abortion is consequently murder of preborn children in their mothers' wombs. The PPACA consequently mandates that the university violate its religious beliefs. …