The Chief Justice’s Ruling: A Gross Expansion of Federal Power

Conservatives looking for some kind of victory in today’s decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (the Obamacare case) are pointing to two aspects of Chief Justice John Roberts’s rulings. First, a majority of the Court ruled that the individual mandate was unconstitutional under the commerce clause. Second, the Court ruled that the Federal Government could not force the states to expand Medicaid coverage under the Affordable Care Act. Therefore, the Court narrowed the scope of Congressional power in two different arenas.

Indeed, 44 pages of Chief Justice Roberts’ opinion are absolutely constitutionally sound. During the course of the opinion the Chief Justice made the same argument that many individual mandate opponents have been making for months: you cannot create an economic activity in order to regulate it under the commerce clause. “The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.” The Chief Justice latter adds that the individual mandate “does not regulate an 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.” Furthermore, “[a]llowing 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.”

Roberts further tears into the logic of those defending the mandate on commerce clause grounds by pointing out that other activity – such as people not eating a healthy diet – does far more to raise health care costs than does failure to have health insurance. Therefore, under the government’s logic, “Congress could address the diet problem by ordering everyone to buy vegetables.” Therefore, the government’s arguments with regards to the commerce clause are ultimately unsupportable.

The problem with those taking the rosy view; however, is that the Chief Justice’s opinion is 59 pages. The Chief takes a detour roughly halfway through the opinion that is so unfathomable, it almost reads as if an entirely different person wrote the opinion.

Chief Justice Roberts holds that despite the statutory language, the penalty for failure to buy health insurance can more accurately described as a tax. This, despite what the language of the bill actually says, and what President Obama himself even said. And that’s also in contradiction of what had just been argued when discussing the anti-Injunction act. As Carrie Severino puts it:

The main holding of the case is that the mandate is upheld as a proper exercise of the taxing power. This is a decidedly awkward result, as the first section of the result explains that the mandate is not a tax for the purposes of the Anti-Injunction Act. During the oral argument the courtroom erupted in laughter when the solicitor general was asked how he could argue that the mandate was not a tax on Monday but was on Tuesday. In the end, the court chose that implausible — even laughable — result in a fairly explicit attempt to hold the mandate constitutional.

Jeff Goldstein also mocks this bit of legal jujitsu. Intentionalism is a concept that he blogs about frequently, and he rightfully calls out the Chief Justice for his violation of the concept.

According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling.  Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax.  Which he justifies because the way the penalty looks to him suggests that “reasonable”  people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax.  How that is “reasonable” is anyone’s guess:   we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax,  therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”.  And that seems antithetical to “reason.”

Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.

Roberts justifies this change in terminology by noting that the amount of the penalty that would be levied would not be punitive – in fact the cost of paying the penalty would often be less than the cost of buying health insurance. And since the so-called penalty would not be burdensome, it’s not really penalizing behavior.

Yeah.

But the most egregious aspect of this decision, and one which an astounding number of commentators seem to be missing, is that the Chief Justice has massively expanded the use of the taxing power. Roberts asserts that “taxes that seek to influence conduct are nothing new.” He then rattles off a list of things that are taxed heavily in order to change behavior, including cigarettes. The problem with this is that people have to buy cigarettes in order to be taxed. This “tax” is applied to people who don’t make a purchase. In other words, the federal government is taxing non-activity. It is the same exact logic that the government used to justify the mandate under the commerce clause. All Roberts has done is shift the authority under the Constitution which justifies government intervention.

Then Roberts makes the astounding claim, also amazingly echoed approvingly in certain quarters, that “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” (emphasis mine)

I’m actually embarrassed for the Chief Justice here. Surely he is not as incapable of making a logical progression as this statement suggests he is. But let’s make this crystal clear. If you do not purchase health insurance, you will be penalized, err, “taxed.” If you fail to pay that tax at the end of the year, what do you suppose happens to you? Does the IRS send you a series of letters pleading with you to “please, pretty please, with a cherry on top, please pay your tax?” Do they put little frowny faces at the bottom of these letters? Does the Commissioner of the IRS stand outside your window with a boom box blaring “In Your Eyes” by Peter Gabriel, the rain pelting him as he cries out “Please, just pay this tax which, by the way, should in no way be construed as a penalty?”

Oh, that’s right, you go to jail. So you totally have the right to not buy health insurance, and there’s absolutely no punishment for failure to pay the tax. This assumes, of course, you always wanted to share a very small space with a drug dealer named Zeke. Just think of this as a government-funded vacation where you may, or may not, have discomfort walking towards the end of the vacation. You see – what a bargain!

The Chief Justice makes several more spurious claims. He notes that “tax incentives already promote, for example, purchasing homes and professional education.” But tax incentives are reductions in the level of taxation for making certain purchases. Your taxes are not increased when you decide to rent a house instead of purchase one.

Roberts observes that the “Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated in the Constitution.” Really? The income tax was made allowable only through the 16th Amendment, but it’s not a tax merely for existing. It’s a tax that only applies if you earn money – in other words, it’s a tax that applies only when you engage in the activity of earning your daily bread. It’s not a “mere existence” tax, and it’s certainly not a taxation of non-activity.

According to Article I of the Constitution, Congress has the ability to issue direct taxes apportioned among the several States, but the Chief Justice himself declares that this is not a direct tax.

Section 8 of Article I states:

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Again, I fail to see how that justifies taxation of non-activity. The idea that this kind of tax would have been countenanced by the same people (by and large) who fought the War of Independence is laughable on its face.

Attempts to sugarcoat this opinion are wrongheaded. In many ways, Roberts’ basing his decision on the tax power is worse than if he had relied on the Commerce Clause, for he has actually expanded the reach of the federal government in a way heretofore unseen. It’s true that Roberts and the four dissenters limit the reach of the commerce clause, but in reality they haven’t done much more than what the Rehnquist Court did in the mid-90s in the Lopez and Morrison cases in limiting the scope of the Commerce Clause. No new ground has been broken, and no old precedents were over-ridden. Much the same can be said with respect to the Medicaid ruling. On the other hand, the Chief Justice has broadened the taxing power so that it can now be applied to non-activity. Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.

I believe that the commenter cthemfly25 has it right in the comments on my previous post:

Congress can always use taxing authority to undermine the constitution.  And if a tax can be used to undermine the constitution and modulate and control social behavior, then the all powerful central government can use its unmitigated taxing power to regulate religion (there is no way applying Roberts’ logic that the religious mandate could be struck down), regulate home schooling or private schooling (“taxed” for not teaching homosexual curriculum), regulate the size of families (taxed for having more than two kids), regulate food or beverage consumption (taxed based on calorie intake), regulate fuel consumption (“taxed” for excessive fuel consumption), regulate choice of consumer goods such as vehicles (“taxed” for not purchasing a “green” car),—–regulate from a central authority any human or civic activity under the rubric of “taxation”.

Perhaps the Anti-Federalist Brutus was right, after all, about the taxing power under the Constitution.

This power, exercised without limitation, will introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!

 

10 Responses to The Chief Justice’s Ruling: A Gross Expansion of Federal Power

  • John Tool says:

    “Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.”

    Is this necessarily a problem that Catholics have to deal with or just Republicans, Libertarians, etc?

    I am still waiting for Mr. McClarey to lead the way now that his desire became reality. I think Mr. McClarey overestimates the number or Catholics or Christians who care in the least about this ruling.

  • Bar prep prevents me from reading the opinions in good conscience, but my guess is that the states made a major misstep in stating that it would obviously be permissible for Congress to tax everyone and then give a tax break for everyone who purchased insurance. By admitting that there was essentially another justification to do basically the same thing, the states opened themselves up for an interpretation that desperately was seeking a peg to save the bill. That doesn’t excuse Roberts though.

  • franco says:

    The state now has the power to control every aspect of human life in America.
    Resist and you will be taxed. Resist the tax and you will go to jail and lose
    all of your assets, including your income.

    The state can also demand all Catholics to renounce their Catholic faith or face financial
    ruin via a tax. The state can prohibit certain categories of human beings from procreation or face financial ruin via a tax.

    Further, the state can control the population of the U.S. through the use of abortion and euthanasia of ObamaCare.

  • anzlyne says:

    As I think more about this Supreme Court decision, I think it might be a good thing. I know for sure that God can bring good from it.
    The decision in fact focuses our attention on the truth of what we need to do to protect our liberties, defining more clearly what is meant and what is allowed by our allowing the government to tax.
    We always thought the government could tax– and thought that there were a few defined direct objects at the end of that sentence. Now we see to the contrary, the the authority we have given over to the government ican be construed not just to tax Something, income or property or something, but simply the authority to tax… .

    Roberts has just pointed out that the penalty acts in effect like a tax and could be construed that way, and what are we voters going to do about it?

    The courts should not be activist; the people should be activists. We look at what we need to do to protect our selves and our national interest, and do it. We define more closely what is given in that authority to tax. If the umpire continually calls a ball a strike, the batter is out, the umpire becomes meaningless and the game is over– so we need to insist on clarity concerning our constitution… enough of this mish mash about it being so old we don’t know what it means. We do too.

  • Mary De Voe says:

    Unless government acknowledges the rational, immortal soul of the human being with its conscience, and especially the human being’s conscience, Obamacare is taxation without representation, enslavement as brute animals to a force of ‘superior” brute animals. The Planet of the Apes was especially poignant as the Statue of Liberty is seen submerged in the ocean.

  • Mary De Voe says:

    It must be added that taxation is to “secure the blessings of Liberty to ourselves and our posterity” from the Preamble to the Constitution for The United States of America. Since our tax monies have been abused to exile The Supreme Sovereign Being, the Giver of LIfe and the Endower of all unalienable rights to man, FREEDOM, conscience, speech, peaceable assembly, our taxes are being pirated to kill our constitutional posterity in the womb, to inflict pornography, assault and battery on our virginity, innocence and civil rights to be secure in our foundational and human liberties, our taxes are being swindled into deforming the TRUTH, embracing perjury, and treason, it may not be said, cannot be said, that the monies extorted from conscientious citizens is called tax, but taxation without representation.

  • Mary De Voe says:

    “so we need to insist on clarity concerning our constitution… enough of this mish mash about it being so old we don’t know what it means. We do too.”
    All future presidents must be given a literacy test, a comprehension test, and a reading test. Are public schools so bad that presidents and politicians can graduate without being able to read? Swearing an oath to uphold a Constitution the President cannot read demands school vouchers for private schools, until the public school start teaching reading, writing and arithmetic.

  • Kenneth says:

    “The courts should not be activist”

    Exactly. That is why the ruling is horribly wrong. Four of the justices recognized that pretending ‘Obamacare’ was constitutional is an activist position. Roberts took an activist position.

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