In the comments section of a 2009 blog post I wrote about the constitutionality of what was being proposed by the Obama administration I stated, “Perhaps one day if this reaches the courts, we could prevent this plan from being implemented. But as with everything, getting a case in the courts can sometimes backfire. The future will tell.” Sadly, backfire is not a strong enough word to describe what the court has ruled.
Last Week the Supreme Court handed down its decision on the “Patients Protection and Affordable Care Act” or, as we all know it, Obamacare. Many across the nation were glued to their television sets or computers anticipating the case. Predictions and wagers were made all around. As the media began pouring over the newly released text reports began flying out, some not as accurate as they should have been.
As the dust settled we learned the final results of the case: In a 5-4 decision the majority ruled that the major provisions of Obamacare, primarily the individual mandate, were in fact constitutional. However the results were a bit tricky to understand, so please let me explain. The Dept. of Health and Human Services, the plaintiff in the case, argued that under the Article 1, Section 8 “commerce clause” and the 14th Amendment’s “equal protection clause” Congress had the power to force individuals to purchase insurance from a private provider or face a penalty. The majority opinion rejected both of these arguments and instead created its own, stating that the penalty was just another name for a specialized tax. This means that under the Congress’s power to tax, they could force individuals to purchase insureance or suffer higher taxes. The crux of the argument is summed up on page 43 of the decision, when Justice Roberts states:
…Although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.
By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.(11)
However if you scroll down and see what foot note 11 states it shows you just how contradictory the entire argument is. Footnote 11 states,
Of course, individuals do not have a lawful choice not to pay a tax
due, and may sometimes face prosecution for failing to do so (although
not for declining to make the shared responsibility payment, see 26
U. S. C. §5000A(g)(2)). But that does not show that the tax restricts the
lawful choice whether to undertake or forgo the activity on which the tax
is predicated. Those subject to the individual mandate may lawfully
forgo health insurance and pay higher taxes, or buy health insurance
and pay lower taxes. The only thing they may not lawfully do is not
buy health insurance and not pay the resulting tax.
So, according to Justice Roberts, you are still allowed to choose whether or not to partake in an action; you simply also have to choose, in the same process, whether or not to pay the associated tax. Now it should be easy for anybody without just empty space between their head to recognize, as Roberts states in his own footnote, that failure to pay a tax can lead to prosecution and perhaps incarceration. But this according to Roberts this does not technically count as a “penalty.” Just let that simmer for a little while and I will come back to it.
Let’s now go back to the DHHS’s original argument under the commerce clause. The operative text in the Constitution that has lead to much of the legal growth of government in the constitution is simply this: Article 1, Section 8, Clause 3 states that Congress shall have the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This patch of text became the center for any growth of government at the federal level following the case known as Wickard v. Filburn.
That case involved a farmer producing more wheat than was allowed under FDR’s quota system during the era of the New Deal. The farmer argued that because the wheat was for personal use and was not sold in the market, intrastate or interstate, that he had not engaged in commerce and therefore his actions were outside the bounds of federal regulation. The courts decision was that his inaction in the market by not purchasing wheat and instead growing it himself “substantially” affected the interstate commerce of wheat as a whole and so in fact was subject to congressional actions. Since this case almost every expanse of government at the federal level has invoked the commerce clause as their justification.The EPA, BATFE, DEA, DHHS, FDA(in its current incarnation), and a multitude of other organizations are primarily justified by invoking the commerce clause. This was a regular occurrence basically until the case of U.S. v Lopez, in which the Court, though they did not reverse Wickard, did suggest that the chain of reasoning behind the use of the commerce clause cannot not be overly broad and must show direct impact instead of assumption based arguments.
This is why, if you read the concurring the opinion’s written by Justices Sotomayor, Ginsburg, Breyer, and Kagan, they all claim that under the commerce clause alone the government has the power to mandate individuals actions, something that in and of it self is scary. However Roberts’ decision is far scarier, because it expands congressional taxing ability to a whole new, and now unlimited scope. Judge Andrew Napolitano says it best:
The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law’s most fervent supporters did not make or anticipate the court’s argument in its support. Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing. In all the history of the court, it never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.
I wonder whether the chief justice realizes what he and the progressive wing of the court have done to our freedom. If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.
As the Judge states basically now under this precedent congress’s authority, through the tax code, is unlimited. I’m sure we all remember the great exchange during Elena Kagan’s Senate confirmation hearings about whether or not Congress has the authority to force individuals to eat vegetables. She and people of her political mindset no longer have to rely on the commerce clause to claim said power. Now they can “tax” you if Sen. Coburn’s hypothetical bill mandating vegetable consumption were to make it through Congress. This is why it is so baffling to hear supposed conservatives come out and say that the decision was a quasi-victory for individual rights, because it has limited what can be done under the commerce clause. But any rational person must see that this not only doesn’t stop the commerce clause over-reach — rather, it adds another weapon into the arsenal of statists.
I, for one, wish that instead of the individual mandate the Obama administration had passed a single-payer plan — though it would have been terrible too, at least if the court had ruled that as constitutional under the commerce clause or general welfare clause it would not have been as damaging as this new precedent.
I started off this post with a prediction that I had made back in 2009. I want to end it with a prediction for the next era of government in the eyes of the court. Unless this case is overturned and Roberts’ convoluted ruling is laughed out of the courts jurisprudence like Dred Scott v. Sandford, Loving v. Virginia, and Plessy v. Ferguson you will see this case, like Wickard, set the tone for the next growth of government into individuals lives. If Congress has the power to create a law mandating any behavior they want with a penalty for inaction, say it’s a tax, and prosecute you for not paying that tax, then any semblance of this nation being for, of, and by the people is gone. We are no longer a Constitutional Republic. This case just confirms any suspicions you might have that politicians, whether from the legislature or the bench, believe themselves to be all powerful and unbound by any oath they may give when attaining such a position.
P.S. — Just a little side note, you will hear people clamoring how this case shows how we need to elect a Republican to the White House so we can put good people on the bench. As everyone knows, Justice Roberts was appointed by George W. Bush and, as the swing vote and author of this case, is responsible for the outcome. Do not blindly trust that because someone has an R after their name that they believe in federal restraint. The lesser of two evils is still evil, and will typically give the same results, if only by different means.Published in