On Thursday, June 28, 2012 Supreme Court Chief Justice John Roberts officially unveiled Version 2.0 of the United States Constitution, which up to this point has been referred to as “The Living Constitution.” His writings in the Obamacare case (Affordable Care Act) were jumbled, unclear and in certain places contradictory, but more importantly, they completely change the relationship between the United States’ government and its citizens.
In a 5-4 ruling, Roberts, writing for the majority (Roberts joining the 4 Liberal Stooges), basically ruled the prescribed “penalty” in Obamacare wasn’t really a penalty but a tax. In his opinion, Congress could impose taxes and therefore changing the law’s definition of the penalty for not buying health insurance to a tax fixes everything. But … there are a number of problems with his reasoning that even to a lay person make no sense, which I’ll discuss in a moment.
First and unlike many pundits in the MSM and the blogosphere, I will not attempt to psychoanalyze Roberts’ motives, as those are unknowable sans feedback from Roberts himself. However, I do believe he is an honorable man and whatever his intentions, I give him the benefit of doubt that his motives were honorable (as I do for every Justice on the Court). Now … that and $1.85 will get you a grande Starbucks coffee.
Second, not having a law degree nor any but the smallest amount of legal training, I will rely on people who do have the requisite background and as importantly, whom I trust, to navigate the legal and judicial waters. Those include Mark Levin, John Yoo, John Eastman and Richard Epstein. I am aware the aforementioned scholars are all from the Right, but that’s partially why I trust them. Legal scholars on the Left seem to be more outcome focused; the end justifies the means.
The Supreme Court of the United States was created by our Founders within the Constitution under Article III as the third branch of the Federal Government. It was left to Congress to decide how many Justices would make up the Court. Simply speaking, it is the Supreme Court’s job to determine the constitutionality of laws or regulations passed down by either the Legislative or Executive branches of the Federal government when challenged.
In the case of Obamacare, 26 States, the National Federation of Independent Business and others sued the Federal government to block implementation of Obamacare, claiming among other things that the mandate requiring every American to purchase a government specified health insurance policy or face penalties was unconstitutional. The law, passed in Congress by Democrats only, relied on the Commerce Clause for its constitutional basis.
Roberts, writing for the majority, twisted himself into a pretzel in order to create the fiction that by calling the penalty a tax, the entire law can be allowed to stand. Richard Epstein writes in Defining Ideas:
The Mandate: A Penalty or Tax?
The Chief Justice looks more like a batter seeking to execute a suicide squeeze than an umpire calling balls and strikes. At this point, labels no longer matter. What matters is whether Congress imposed a tax or imposed a penalty. In answering that question, the Chief Justice ignores the wide range of institutional safeguards that are required before taxes could be imposed.
The Obama administration went out of its way to say that it did not plan to impose any taxes, in part because of its no-new taxes pledge, and in part to get a favorable route for the Act through the Congress. That route did not lie through the House of Representatives, where all tax measures must originate. These procedural steps are part of the structural Constitution. Umpires usually try to use consistent definitions because otherwise they are well aware that there is a risk in equivocation: The political actor, meanwhile, can first pick this and then that definition to suit his convenience.
But it gets worse. The basic theory of taxation is that we are all in it together. The point here is that the taxes are generally imposed to create some form of public good, to which all citizens should be required to contribute. We have, unfortunately, relaxed that notion of taxation so that transfer payments from A to B fall within a tortured definition of what counts as the “general welfare of the United States,” where the last four words are constantly ignored today. But a second constraint still remains—namely, that the taxes come from all segments of the population.
The moment we allow a tax targeted just on those people who wish to opt out of the mandate on the ground that they get a raw deal from the government, the power of selective abuse is increased, thereby allowing a majority of the population to impose a so-called tax on whatever subgroup of the population it wishes to tax for the benefit of another. Put otherwise, it is not easy to think of any traditional tax or credit that hits only those who don’t buy healthcare insurance on their own accounts. The extra flexibility is one unfortunate way in which the Chief Justice as statesman clashes with the Chief Justice as umpire.
Related, Epstein and Jon Yoo appeared on the weekly Ricochet podcast last Thursday and they are well worth a listen. Ricochet.com also released the bi-weekly Law Talk podcast with Epstein and Yoo, hosted by Troy Senik. This is a subscriber only podcast, but is worth the price of the subscription alone … never mind the other podcasts and interaction.
The Obamacare decision creates an entirely new, and now constitutional way for the government to impose taxes for any purpose they deem “Necessary and Proper.” In reply, FL Rep Allen West on June 29 sarcastically said:
Legal precedent has been established so that the federal government can say based upon their own ideological agenda of health care that the American individual citizen must purchase a private sector commodity and if they don’t they will be taxed.
So if I were to go out and say that every person in the United States of America needs to go out and buy a 9mm Glock or else they will be taxed, I wonder how the people such as Nancy Pelosi on the other side of the aisle would react to that.
But that really is the precedent that has been established.
The ruling doesn’t just apply to healthcare; from now on anything can be “taxed” if enough legislators can be convinced that it is in the best interest of “society” to do so. I’ve heard pundits proclaim “taxes are so unpopular no one would propose creating a tax as a penalty for not buying something.” Who would have ever believed Americans would be fighting against national healthcare?
You also may have heard some people trying to find the pony in this pile of manure say “at least the Commerce Clause can no longer be used to coerce us into buying something we don’t want.” Not so fast Kemo sabe.
Mark Levin posted a piece on his Facebook page on the 29th clarifying the writings of both Roberts and Justices Kennedy, Thomas, Alito and Scalia (in the dissent):
When a court issues an opinion, it is said to be the “Opinion of the Court.” The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).
But respecting Parts III- A, the commerce clause and necessary and proper section, Roberts is writing for himself, not for a majority.
Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is Not labeled as “dissenting in the judgment, concurring in part” or some permutation.
You can’t say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which isn’t formally joined Robert’s writing), is writing for itself.
So not only does Congress have a brand spanking new taxing power, they still have the old fall-back, the Commerce Clause!
If we conservatives have any hope of returning the United States to the Democratic Republic envisioned and formed 236 years ago, we have a lot of work ahead.
July 4th is only a couple of days from now. Hillsdale College has promoted a “Read the Declaration” campaign whereby sometime during your celebration next Wednesday, you read aloud the Declaration of Independence, as was done on the very first Independence Day in 1776.
We should make this a tradition for all future Independence Days. And then we go to work for the next 128 days like we’ve never worked before to:
- defeat Obama,
- replace at least 14 Democrat Senators with conservative GOP Senators,
- add a few new conservative GOP Representatives to the House,
- make it very clear to all current GOP congressmen and Senators we will book NO irresolution or wavering in our goal of restoration of our Republic,
- make it very clear to Mitt Romney that it is his job to lead us in restoring our government to one that respects the individual and the rule of law and
- help Romney restore integrity to the office of the President
We can rest for a couple of weeks at the end of December before getting back to work. We must NEVER let our Liberties be taken by statists again … EVER!
May God Bless America.