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.

SCOTUS decides its version of Obamacare (not the one Congress voted on) is constitutional

Today's Supreme Court ruling on the Patient Protection and Affordable Care Act (Obamacare) and its individual mandate is an interesting case of judicial activism. BTW, I am not opposed to the judicial branch being aggressive in overruling the political branches of government when what those branches are doing is unconstitutional. This whole idea of "deference to the elected branches" is nonsense. Either a law is constitutional as passed or it is not, regardless of how much the Congress or President like the law or how good their intentions are or whether they believe they are addressing some pressing need or whatever else. A court should be active in getting rid of unconstitutional laws, whether the left or the right likes them. What a court should not be active in doing is rewriting laws that were never voted on (and likely would not have made it through the political process). That appears to be what has happened in the Court's ruling on Obamacare.

The individual mandate was not said to be a tax when it was passed. The proponents didn't argue that it was a tax when they urged voting for it and the administration hasn't been arguing that it was a tax during its earlier legal challenges (with good reason, as it appears neither apportioned nor uniform). Is it "effectively" a tax in order to bolster its possible constitutionality? Why does the Court care? The Court's job is not to 1) contrive some hypothetical law that might constitutionally accomplish the stated aim of an actual unconstitutional law and then 2) rule as if the actual law were the hypothetical one. It's Congress' job to pass laws that meet constitutional muster and it's the Court's job but to toss out the laws that don't.

This is not a trivial issue because adding law-writing or law-rewriting to the portfolio of unelected justices is fundamentally undemocratic. Quite simply, it's not in the Court's mandate to rehabilitate the laws that fall short. Having Congress dodge political bullets by passing unconstitutional laws and sending them to the Court for constitutional editing without the need for a re-vote is a perversion of our legislative process. In this case, that perversion allowed Obamacare supporters to do an end-run around the thorny issue of needing to vote for a tax increase (on the mostly young and lower income folks who do not choose to buy insurance) as part of their bill - a bill which would not have passed the legislative gauntlet if what Roberts et alii now choose to interpret as a "tax" had been called that when the voting was done.

There is so much more to say on this decision, but I will limit my notes to a quicky pros and cons roundup:

BAD: Chief Justice Roberts has shown himself to be another wishy-washy Justice, willing to carry water for the explicitly political branches of government rather than adjudicating the constitutionality of the laws as they were passed.

GOOD: Justice Kennedy gets another item in his 'plus' column, which is good, even though his 'minus' column is pretty well-populated, too. Unfortunately, he wasn't the deciding vote on this case.

GOOD: The Court reasserted that there are some vague limits on the power granted by the Commerce Clause.

BAD: The Court nullified any practical value of those limits by adopting an incredibly liberal reading of the taxing authority. Under the current reading, Congress can effectively command any activity by sufficiently penalizing via "tax" the lack of that activity, as long as a thin veneer of revenue generation can be claimed.

GOOD: The political impact of this decision is likely to energize opponents of Obamacare and help steer the Fall 2012 elections in a direction that repeals the law. Assuming, of course, that President Obama is unable to capitalize on the fact that the GOP has chosen among its Presidential nominees the one with the least believable stand against government intrusion into health care.

BAD: Gone forever is any credible claim by RINO apologists that it is critical to vote for even weakly limited-government Republicans because that vote at least ensures steadfastly originalist judicial appointments. Then again, maybe ending that excuse for voting for bad candidates is not such a bad thing.

There is a long road ahead for Obamacare, even aside from the outcome of the 2012 Presidential race. It's probably too much to hope that California will be among the states that refuse to set up health insurance "exchanges". Keep in mind that the IRS has no authority to collect the $3000 employer penalty in states where federal (not state) exchanges are set up. But, many states are refusing to do so and even HHS Secretary Kathleen Sebelius has admitted there may be a need to set up federal exchanges for 15 to 30 states. In a time when businesses have ample reason to flee California, let's hope our state forces the federal government to bear the burden of these exchanges without further burdening our employers.