Justice Roberts' Decision: No Silver Linings

While the U.S. Supreme Court today found the individual mandate of the President’s health care plan unconstitutional under the commerce clause, and unconstitutional under the "necessary and proper" clause, the court has upheld the individual mandate and the rest of the health care law under Congress’ taxing power.

Some on the Right are deluding themselves, thinking that the restrictions of the commerce clause and the "necessary and proper" clause are silver linings to this very dark cloud. But they are not.

The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts's opinion provides a constitutional road map for Leftist architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.

This is very disappointing. Ironically, both President Obama and Congressional Democrats told the American people that the individual mandate was *not* a tax. In September 2009, when George Stephanopoulos asked President Obama himself on ABC News whether the President rejects the notion that the individual mandate is a tax increase, the President responded: “I absolutely reject that notion.” So why would Justice Roberts try to save it?

Numerous lower court judges rejected the notion that the individual mandate was a tax. Chief Justice Roberts in his opinion today even admitted that, “[i]t is of course true that the Act describes [the individual mandate] as a 'penalty,' not a 'tax.'" In today’s dissenting opinion, Justices Scalia, Kennedy, Thomas and Alito stated that the language of the Affordable Care Act itself states verbatim that the individual mandate is a penalty.

“26 U. S. C. §5000A, entitled “Requirement to maintain mini­mum essential coverage.” It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential cover­age.” And the immediately fol­lowing provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a). . . there is hereby imposed . . . a penalty.“

Yet, the Supreme Court on a 5-4 decision ruled otherwise. The Court today has said that Congress effectively has unlimited authority to tax the American people. Above all, the Court has ratified a law that fundamentally alters the relationship between the federal government and the American people.

"If a Republican is elected president, he will have to be more careful than the last. When he asks nominees the usual question about justices they agree with, the better answer should once again be Scalia or Thomas or Alito, not Roberts."

Batten down the hatches. 20 Tax Hikes in Obamacare that are here now or soon to follow.