The Shameful Robertscare "Tax" Decision: The Incoherent And Illogical Opinion Of John Roberts In Upholding Obamacare In Violation Of The Constitution

The Constitution was betrayed today, not as usual by the swinging Justice Anthony Kennedy siding with the illegitimate "living Constitutionalists," but by the Justice appointed by President George W. Bush to head the Supreme Court. John Roberts and the four liberals upheld the individual mandate in Obama's health insurance legislation. How the Chief Justice went about achieving his result is all the more troubling and needs to be explained. Roberts used an argument that courts throughout the land roundly rejected because it is patently contradictory and nonsensical. Today, the House of Representatives held Attorney General Eric Holder in contempt. For this decision abusing our most Basic Law in so transparent a fashion, they probably should have held Roberts in contempt as well. 

THE COMMERCE CLAUSE 

The challenged provision of Obamacare stated that a private citizen who can afford to must purchase health insurance from a private company or else face a penalty. Every reasonably knowledgable observer understood this to be a case revolving around the Commerce Clause. In Article I, Section 8, Clause 3 the Constitution grants Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." The same way it cannot regulate economic activity or inactivity within a foreign nation or within Indian tribes, it certainly could not do so within the States. The Clause was originally meant to allow Congress to regulate the exchange of goods or services across national lines, between Indian and American boundaries, and between that which crossed from one State to the next. Domestically, it would allow Congress to prevent protectionism from one State against the others.

On this issue Roberts refused to let the Court to continue to extend the modern reach of the Commerce Clause (which had already allowed Congress under this Clause to regulate a farmer's growing of wheat for personal use in Wickard v. Filburn in 1942, or ruled that the Federal government could criminalize growing marijuana in one's backyard for personal medical purposes in accord with State law in Gonazelez v. Raich in 2005 ).  Ruling on Obamacare's individual mandate as an exercise of the Commerce Clause, Roberts wrote:

“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”

The decision should have ended here. The Roberts opinion, like the joint dissenting opinion, could have then stated that "[t]he Act before us here exceeds federal power...in mandating the purchase of health insurance... In our view it must follow that the entire statute is inoperative... It threatens that [constitutional] order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers... [T]he theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government." But he did not. He instead made the most ridiculous arguments concerning the power of Congress to tax, shameful absurdities that belong nowhere in the records of Supreme Court opinions.  

THE TAXING POWER: THE "NON-TAX TAX" DEFENSE OF THE INDIVIDUAL MANDATE 

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” This means that if the mandate and its associate penalty were in fact a "tax" it could not be challenged in federal court until it were actually paid. This would require dismissing the case for another day when the tax man had already come collecting. 

Roberts, however, ruled that Obamacare "does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits." Why? Because Roberts declares that Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. This is largely because Obamacare labels it a “penalty,” not a “tax.” As to whether the tax statute applies to Obamacare, "it makes sense to be guided by Congress’s choice of label on that question." 

Immediately after arguing that it is not a tax because Obamacare itself terms the provision a “[s]hared responsibility payment” and a “penalty,” Roberts then begins to state that Congress has the ability to exercise the powers found within the mandate under its power to tax in Article I, Section 8, Clause 1. If it is construed as a tax for Constitutional purposes, according to Roberts, the provision can survive judicial scrutiny. He airily proclaims to be applying a "functional approach" to the mandate and its penalty by "viewing its substance." Suddenly "for constitutional purposes" the mandate's penalty may be considered "a tax, not a penalty." He therefore upholds this legislation as a legitimate exercise of Congress's taxing power. What was not a tax but a few paragraphs before, becomes a tax a few paragraphs later.

The dissent calls this reasoning "feeble" and the "flimsiest" of arguments, pointing out that it is only legal acrobatics of the worst nature that could disagree with the unavoidable fact, evident in the text of the statute, that "Congress imposed a regulatory penalty, not a tax... [T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it... Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry." In the lower courts this was almost universally accepted by both those striking down and upholding Obamacare. Yet the majority opinion from the Supreme Court, as the dissent correctly points out, "would have us believe in these cases...that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists."


The judges who did consider it a "tax," such as the Fourth Circuit Court of Appeals, ruled that the case had to be dismissed under the Anti-Injunction Act. The problems with Roberts approach is manifold. Not only can laymen notice the inherent contradictions and the abuse of the English language, but it is inexcusable on its face for a number of other basic reasons. Firstly, if everyone were to comply with the mandate, the government would raise no revenue. Further, if everyone complies with the mandate then it would be only private health insurance companies that receive all payments. This is the result this mandate would hope to achieve. But a tax cannot have the possibility of being revenue-free for the government and being collected by private parties and in any way still be considered a "tax." 

Furthermore, Justice Samuel Alito asked the Federal government's lawyer, Solicitor General Donald Verrilli, the following question: “Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”  Verrilli acknowledged the fact that this has not ever been done, though he then immediately argued that the Court could use the argument that Roberts ended up adopting. Roberts just etched that precedent in the Supreme Court's tablets allowing for all mandates to have Constitutional imprimatur so long as it is labeled a tax. 

Finally, Federal District Court Henry Vinson reminded us that President Obama expressly declared the mandate was not a tax, asking the Federal government's lawyers, “They denied it was a tax. The president denied it. Was he trying to deceive the people?” I suppose Roberts would answer in the affirmative. In fact, the first Federal District Court Judge to rule in the case, Roger Vinson, called the entire reasoning now adopted by the Supreme Court “an Alice-in-Wonderland tack," appendeding a footnote that quoted Alice in Lewis Carroll’s “Through the Looking Glass”: “The question is whether you can make words mean so many different things.” 

THE POWER TO "AFFECT INDIVIDUAL CONDUCT"

Perhaps the most troubling aspect of the ruling is that Roberts admits that "the payment is...intended to affect individual conduct." However, he claims this does not disallow it from being considered a tax rather than a penalty for not adhering to a mandate, because "taxes that seek to influence conduct are nothing new" such as taxes "to encourage people to quit smoking." This fails to realize the most basic point. That sort of example is an illustration of a sales tax paid directly to the government when purchasing a product. There is no government coercion directing the citizenry to purchase cigarretes, or any other product. It has no resemblance to this newly announced "taxing" power that is used to coerce the economically inactive. This is not a tax on your income, on purchase, on property, or similar to any other tax that exists today. It is a "tax" on a decision. The decision to not purchase health insurance. 

The damage is done. We now live under a faux Constitutional order in which the Federal government has the prerogative to go about via mandate affecting every citizens conduct at the cost of financial penalties. This is no longer a government of limited and enumerated powers, a structure itself meant to protect individual liberty. We live in the ultimate nanny-state where the government may force you to do your homework or else take away your allowance. This has no resemblance to the Constitution of James Madison and the rest of the ratifiers. It is therefore a brazen act of judicial activism to allow this legislation to stand under such contorted illogical pronouncements. 

THERE IS NO SILVER LINING 

Some conservative commentators have been eager to find a silver lining in the paragraphs devoted to the Commerce Clause in this case, to give John Roberts a benefit of the doubt they would never afford any other liberal Justice. Rebutting the likes of conservative luminaries like George Will and Charles Krauthammer should suffice to dispell any idea that conservatives somehow gained anything from the Supreme Court ruling.

GEORGE WILL

In one of the dumbest articles ever authored by George Will, he declared that "[c]onservatives won a substantial victory Thursday." That is a laughable proposition. This, he claims, is because of some sensible rhetoric on the Commerce Clause which he calls a "consolation prize." Firstly, the Roberts opinion does not question a single existing Commerce Clause precedent and can not be used to challenge the vast unconstitutional regulatory structure of the modern Federal government. It keeps all this in place, while signaling to Congress that any mandate in the future should simply be labeled a tax to be legitimate (but that even if they fail to label it as such he will step in as the Supreme-committee on Legislation and rewrite the law in order to uphold it). As relates to the Commerce Clause rhetoric, Will writes:

"At least Roberts got the court to embrace..." "If the mandate had been upheld under the Commerce Clause, the Supreme Court would have..." "By persuading the court to reject a Commerce Clause rationale..."

Roberts was not needed to get the Court to do anything. He was not needed to persuade the Court to reject anything. The entirety of Obamacare would not have been upheld if Roberts joined the dissenters. There were four Justices willing to throw all of Obamacare out and issue a principled decision on the Commerce Clause. That's what the case was all about and that's what he could have provided.

Roberts instead joined the liberal wing of the Court. He is not someone worth lauding at all, when what he should and could have done is simply join the four Justices who were forced to dissent. That's what should have happened, and articles like those from Will are simply not facing up to this obvious reality. Will's point would only make sense if Kennedy were in the majority as well. If that were the case, then by joining the majority and writing the opinion, he could craft it the way he wanted to squeak out whatever he could. But Kennedy was firmly in the dissent. There was no benefit at all to what he did. It was shameful and in no way beneficial to the Constitution that was today betrayed, and Will should acknowledge this.

CHARLES KRAUTHAMMER

Krauthammer wrote that Roberts is "acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts..." In truth, the decision today shows Roberts as the contemporary permutation of Warren and Burger. In order to avoid this, Krauthammer states, Roberts engaged in the "ultimate finesse" that amounts to: "Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed." This is folly. Yes, Roberts did not go as far as Justice Ruth Bader Ginsburg who would have said the mandate was Constitutional as an exercise of the Commerce power. But there is no reason he needed to be sided with Ginsburg. He could have joined the ranks of Alito, Thomas, Scalia, and even Kennedy. In so doing he would have taken his Constitutional duties seriously, not allowing his potential concerns over legacy or perception of the Court to become paramount. 

Furthermore, and more importantly, Roberts reigned in nothing. The most expansive legislation still stands and will continue to stand unassailable under the false guise of the Commerce Clause. In addition, a new unprecedented power to mandate has now been granted, and with a wink and a nod, Roberts has provided instructions to Congress to simply refer to it as a tax in the future for it to meet the Supreme Court's idea of Constitutional muster. 

CONCLUSION 

Last night every American laid down his head in rest with the last vestiges of Federalism potentially salvageable. On Thursday morning Americans woke up to find the death knell, the nail in the coffin, pronounced to our Constitution's structure of government. Roberts just read the American Constitution its last rites. Yesterday, there was hope that the United States of America could still have a federal government responsible to free men as envisioned by those who ratified our nation's charter. Today we know we are slaves. Slaves in the sense of being subjects of the federal government, rather than enjoying a federal government "of the people, by the people, for the people." We can have as much of our wages garnished as our overlords in Washington determine. We can labor for them, rather than have the government work for the people. We can have our real property taken from us to hand to other private developers. We can have decisions made for us as to how we must go out and spend our own money, or else face penalties. Property rights are long gone. Individual liberty is a thing of the past. Though I hate to end in despair, I do not wish to engage in false hopes.  The federal government of limited and enumerated powers bequeathed to us by the Founding Fathers has been choked to death by a Supreme Court's "living, breathing Constitution" that those Framers could never recognize.

Can we repair the damage? Yes, but only by getting truly originalist Justices, in the mold of Clarence Thomas, on the Court. This alone will bring us back to the Constitutional system that was intended. This means electing a President that is more likely to appoint a Justice like Thomas. Thomas is a Justice who in a very brief dissent was able to cut through the nonsensical cloud of legal obfuscation and issue an opinion in line with the Constitution's original meaning on the central issue in question:

I adhere to my view that 'the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.' United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); see also Lopez, supra, at 584–602 (Thomas, J., concurring); Gonzales v. Raich, 545 U. S. 1–69 (2005) (Thomas, J., dissenting). As I have explained, the Court’s continued use of that test 'has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.' Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.

If we can fill the Supreme Court with Justices such as this should empty slots arise over the next four years, and for years to come, the tides could eventually change. For now, we have this precedent set. This more than ever means making Supreme Court nominations a front and center battle in Presidential elections. Of course for this upcoming November, it is as essential as it has ever been with a number of aged Justices, including on the liberal wing of the Court. Let me allow the dissenting opinion to offer the final conclusion:

The case is easy and straightforward... What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there... are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs. That clear principle...[should have carried] the day here... The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty. The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most im- portant ones, for which reason they alone were embod- ied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

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