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obamacare-logo_fullIt is official. Obamacare is Constitutional. And we all know why: because Chief Justice Roberts says the individual mandate is not actually a mandate, it is a tax.

The critical passage from the opinion nicely sums up Roberts’ decree: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”

There is no mandate, here, folks. There is only a tax. So do not worry your little heads about our Constitutional structure, limited government, or individual liberty. As Roberts breezily puts it, “if one chooses to pay [the “tax”] rather than obtain health insurance, they have fully complied with the law.” We all pay taxes, after all, so we all should understand that the federal government gets to tax whatever it wants to tax, and in whatever manner it sees fit. Another tax, while we might not like it, raises no constitutional concern for any but crazy people.

Well, I feel better.

Then again, perhaps we should look just a bit more closely at Roberts’ reasoning. The federal government gets to penalize us by charging us an extra “tax” if we make choices it does not like. The typical analogy, here, is to taxes on alcohol and cigarettes. Of course, this “analogy” overlooks that fact that with Obamacare the government is issuing an explicit command to affirmatively “choose” to purchase an item in the stream of commerce or suffer a monetary penalty (and, should one fail to pay the penalty, potential jail time). This is not a “tax” on some particular good or activity legislators are willing to call a “sin,” after all. It is a penalty imposed on the refusal to engage in an activity. Remember this oh-so-fine distinction? It is the same distinction that caused a majority of Justices to decide that they could not uphold the mandate as an expression of federal Commerce power. Even most Supreme Court Justices, apparently, are capable of recognizing the difference between punishing someone for a putatively bad act and punishing someone for failing to engage in an activity—unless, apparently, we call it a tax.

Thanks to Justice Roberts, we will have the exact same health care policy and the exact same punishment for those who fail to get with the program. But now, Justice Roberts tells us, we have no reason to worry about what the government is doing to us. After all, apparently, the federal government is allowed to reward and punish whatever “choices” it likes, so long as it calls the punishments “taxes.”

Ah, the possibilities! People who refuse to get on board with policies set by our betters in Washington can simply be brought to reform with a little IRS encouragement. Take, for example, those crazy people who send their kids to private or parochial schools (or, gasp! school them at home). Why stop at taxing them for services they do not use? Now Washington can teach them to stop draining our public schools of their kids’ participation through the use of a little tax penalty.

After all, the federal government has been using this kind of tactic for decades. Remember all those teenage drunk drivers? Well, we got rid of them by simply telling the states that they could not get any of the tax dollars back that Washington has been sucking out of their citizens for roads unless they raised the drinking age to 21. And that worked, right? Kids do not drink anymore, right? And that good end surely justifies emasculating our states just a wee bit more than they were already, right?

Of course, the Obama Administration remains in a bit of a pickle. People tend not to like taxes. And some of these people even seem to get the idea that there is a difference between paying higher taxes on some goods and being slapped with a penalty for failing to go out and buy the “right“ good. This is why Obamacare’s defenders are happy to accept the results of Roberts’ little feat of nominalism (“a mandate is a mandate only if I do not choose to call it a tax”). But our betters still do not want the rest of us to think the word “tax.” They are back to calling Obamacare’s enforcement mechanism a “penalty.”

But I have a better idea. Why don’t we just call it a unicorn? Everybody likes unicorns, what with their big eyes and that pretty horn and all. So let us just tell everyone that if they do not purchase health insurance (and they earn too much money to be exempt) they have to “help feed the unicorn?”

The unicorn has just as much basis in the Constitution as the “tax,” and we will all be happier—not to mention healthier, safer, and all-around better, more liberal beings, if we can just give the people something pretty to think about while we nudge them into our better, social democratic society.

I know some people have chosen to believe that Chief Justice Roberts has some kind of “secret plan” to make Obamacare more unpopular by defining the individual mandate as a tax. I have even heard a few people express relief that, at long last, a majority on the Court has found something the federal government cannot regulate as part of its Commerce power.

True, Roberts did not go along with yet another broadening of the Commerce power. Unfortunately, in his desire to seem “reasonable” and “restrained” rather than as some “right wing nut” who will “stand in the way of the democratic process,” he chose to further extend another federal power that already has proven at least as dangerous as that over Commerce; one that is at least as liable to being stretched beyond all reasonable, constitutional bounds.

One need not be some crazed tax protester, writing (in crayon) from a federal penitentiary, to note that the taxing power is supposed to have limits. Yes, the Sixteenth Amendment specifically authorizes an income tax. But does that mean that absolutely any tax, penalty, or policy decision, so long as it is funneled through a taxing agency is constitutional?

The dissent in the Obamacare case pointed out that a “tax is an enforced contribution to provide for the support of government.” Thus, the government can make all of us pay higher taxes so that it can waste more money on health care regulations, policies and programs few of us will ever use. That’s politics, these days. But a penalty “is an exaction imposed by statute as punishment for an unlawful act.” In effect, then, failure to purchase health insurance now is an unlawful act. Punishing that unlawful act through the tax code is, if anything, more dangerous, because more subtle and insidious, than punishing it through overt police action.

Yet again, the response will be that any criticism of federal policy is mere scare-mongering (rooted, no doubt, in bigotry regarding race, class, sex or sexual orientation). “Judicial restraint,” for these folks, means “let the government do whatever it wants.” Apparently, it is only possible to see this latest increase in federal power as a danger if one fails to trust “the people” to mark things as worthy of punishment or reward through legislation.

The view that it is “up to the people” to decide all policy issues sounds wonderfully enlightened. Unfortunately, in a world where members of Congress leave office approximately as often as they choose to retire to a K Street lobbying firm, where a “landslide” occurs when 10% of sitting members lose their jobs, to talk of the wonders of direct democracy is to speak, once again, of unicorns. Add to this the power of unelected bureaucrats to formulate rules and regulations with only “public comment” and you have a system riddled with unchecked power and rank hypocrisy wrapped in the false piety of schlocky expression like “the people, yes.”

None of which is to say that more “direct democracy” (that is, simplistic, over broad referenda pushed by various interest groups in a media frenzy) would be the answer to our problems. The answer is, rather, a simple one that we have been ignoring for a sad number of decades: the Constitution. We have a structure of government that intentionally separates powers among branches and levels (state vs. federal) of government. And it does so to prevent the precise type of ham-fisted, ludicrously over-complicated, over reaching and destructive policy that is Obamacare—complete with its ham-fisted, inequitable and draconian enforcement mechanism.

People are capable of governing themselves. But they do it best, as the drafters of our Constitution well knew, in their states, localities, and civic associations. And the problem with that vision, according to our betters, is that they tend to choose policies that are at odds with Washington-based Enlightenment and Progress.

Had Justice Roberts recognized his job, not as one of finding a way to uphold any expression of federal power he possibly could, but rather as upholding the law of the land, we would not now be in the land of constitutional unicorns. But such a job requires that Justices refuse to enforce particular laws that fail to comport with the basic governmental structure set out in the Constitution—our higher law. And, while our Justices over the last 80 years or so have on occasion been willing to force the federal government to restate its policies so that they sound more constitutional, and quite frequently been willing to decree that the federal government take on new tasks, they have been singularly unwilling to insist that Congress and the President abide by the rules and structures that are (or at least were) the essence of our constitutional government.

There is little chance that things will change in this regard. So we had best get used to the idea that we can be “encouraged” to do most anything the nanny state feels would be to our benefit. From a government of limited, enumerated powers, ours has become one of plenary power to “do good” provided five Justices are willing to sign their names to an opinion ascribing to some clause in the Constitution a grant of power to do it.

Unless, of course, we get a Supreme Court majority that sees its job as upholding our Constitutional structure. Which, given the state of the legal profession, is much less likely than our raising a herd of unicorns.

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2 replies to this post
  1. Ah, a voice for sanity! Is it not ironic that when talking about today's Supreme Court one can be sane only by advocating unicorns? The rush to find nuance in Mr. Roberts, even and especially on the Right, shows how utterly ignorant we have become about our Constitution. As for Mr. Roberts himself, another Republican appointee, I'm afraid, who has become both too comfortable and too clever by half. Thank you, Dr. Frohnen, I am going to dream of unicorns tonight.

  2. Yes the possibilities, now our leaders can pretty much call anything a tax, and force us to purchase anything under threat of penalty. The only way t stop this is by passing an amendment to the Constitution, a “Right to Refuse amendment”.
    The process has already begun, you can read more about it at righttorefusedotcom. We could use your help.

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