Some Exasperated Thoughts On The Constitutionality Of The Unconstitutional ObamaCare Monstrosity

Chief Justice John Roberts

by Andrew Roman

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I’ve spent the better part of twenty-four hours reading endless commentary from thinking, normally-coherent rightists who are trying to convince me, if not themselves, that John Roberts’ fundamental transformation of judicial review is actually a long-term win for conservatives and originalists. And even with my initial fiery emotions tempered a bit (although my outrage has continued to blossom), I just don’t get it.

I truly don’t.

I haven’t stopped shaking my head since 10:15 yesterday morning when the rulings came down.

From the pens and tongues of people I honestly respect, from George Will to Charles Krauthammer, I’m being told I need to step back, relax and try to see the silver linings in all of this madness - that the Supreme Court’s decision to uphold the ObamaCare individual mandate as a tax, rather than a matter of commerce, is an historical victory – that yesterday’s debacle of a decision will limit future attempts to use the Constitution’s commerce clause as a vehicle for government expansion.

On that point, I concede they’re almost certainly correct.

But that’s where the whole matter should have ended – with five Supreme Court justices suitably upending any federal attempts at imposing a mandate that would compel us under penalty of law to have to purchase anything. At that point, the men in black robes should have closed up shop, congratulated each other for defending the Constitution and individual liberty and gone home to watch reruns of Mad Men.

But they didn’t.

So, while the Constitution's commerce clause became that much more difficult for future legislators to use as a mechanism for government growth (we hope), it also became that much easier to levy taxes on both behavior and non-behavior. Indeed, Chief Justice John Roberts - the swing vote - has set a new judicial standard. The federal government can now say we must purchase whatever it deems necessary, so long as the penalty for not doing so is called a "tax." The word "commerce" never needs to come into play. And while it's true that the feds have always been able to tax its citizens, no one could have imagined that this flimsiest of justifications would keep the individual mandate living and breathing - for now and for the future. 

As a consequence, the proverbial flood gates are now wide open – and just as we’ve seen here in that bastion of personal liberty, New York City (think cooking oil, cigarettes, 16-ounce cups of soda, etc), once the government reaches in and knocks over one domino, it will not stop until they're all toppled under the guise of doing whats best for us (at the expense of liberty).

Government never knows when to stop.

What that means is that those people who can afford to purchase health insurance, but choose not to, will be taxed. It also means that young people, say in their early twenties, who are healthy and choose not to be insured (as I did when I was that age), will also be taxed. The latter group, incidentally, will be facing increasing fines each year until it becomes less expensive for them to actually purchase the mandatory insurance, at which time the open arms of the government will be there waiting to take care of them.

Clever. yes?

And so it was that the Chief Justice of the United States tore a page from the 2012 edition of the “Activist Judges Handbook” and not only overstepped his bounds, but set a new kind of puzzling precedent.  

A scary one.

John Roberts, in his attempts to keep the court from “legislating from the bench,” did precisely that. He quite literally rewrote the law, miraculously preserving the federal mandate for health insurance by calling it a “tax” – even though no such language existed anywhere in the bill’s 2000-plus pages, nor was it sold that way by any breathing Democrat. Even Ted Kennedy, before he relocated to the Mary Jo Kopechne Hall of Ultimate Justice,  never argued for this legislative depravity as a tax. It would have unquestionably died a quick death had it been presented that way.


(Radio talk-show host Mark Levin points out that in the early days of the ObamaCare debate, there were Dems who actually talked about this legislation being similar to the social security tax. Levin notes, however, that it wasn't too long before they completely backed away from using the "t" word. His Landmark Legal Foundation actually filed briefs with the Supreme Court explaining in detail why ObamaCare was categorically not a tax).

What is most infuriating about all of this is that we (by “we” I mean those of us who revere and respect the Constitution) had this thing defeated. This thing was a dead duck. Justice Anthony Kennedy was with us all the way. 

How often does that happen?

It turns my stomach thinking about how close we were to killing this disaster.

Justice Anthony Kennedy

We actually had Kennedy.

He was one of the four dissenting justices who correctly asserted that the entire ObamaCare bill was unconstitutional. 

It was in the bag. 

Even John Roberts agreed that as a matter of justifying the mandate under the commerce clause, ObamaCare didn’t cut the constitutional mustard.

But then Roberts decided that he’d try his hand at writing law instead of interpreting it. From out of thin air, it occurred to him that the bill’s individual mandate also functioned as a tax – that somehow, the high court was magically obliged to treat it as a tax, although it wasn’t meant as one. All the lefty big guns – Pelosi, Reid, Schumer, et al – never used the word tax in selling this garbage to the American people. The President himself went as far as rejecting the notion on numerous occasions. So, rather than use the Constitution itself in conjunction with the actual text contained in the ObamaCare bill to correctly and completely put the kibosh on this unprecedented overreach of government, Roberts constructed, out of whole cloth, a way to keep the bill alive. He made the rationale used in passing “Roe vs Wade” look like a civil traffic dispute. He went beyond checking the emanations and penumbras cited by the Warren Court way back when for justifications. He literally stuck his hand into a black judicial void and yanked out the word “tax.”

It was as if it was the Chief Justice’s mission to save this wretched piece of legislation any way he could.

The fact that no one along the way – whether it be in state court, circuit court, whatever – ever viewed the ObamaCare penalty as a tax was irrelevant to Chief Justice Roberts. Thus, the constitutionality of the individual mandate as a "tax" is all his doing, effectively rendering him the author of the bill. 

But the fact remains that ObamaCare was not passed as a tax. It would never have become law as a tax. 

No matter how you slice it, ObamaCare is a deception of the highest order, not to mention a tax increase the likes of which we’ve never seen before.

Victor Davis Hanson writes that “rationalizing defeats is no way to learn from them.”

He’s right.

Andrew McCarthy writes: “ …even if the Court is correct that, under its jurisprudence, the mandate that undergirds Obamacare can be sustained as a tax, it is surely intolerable for the Supreme Court to aid and abet Congress and the president in the commission of a massive fraud: upholding as a tax something they swore up and down was not a tax — allowing them to enact as a tax something that would never have passed if honestly presented as a tax, allowing them to escape accountability for passing a massive tax increase."

He’s right.

Bill Bennet, on his talk show this morning, pointed out that if Barack Obama is re-elected and appoints liberal justices to the court, the entire commerce clause "victory" means absolutely nothing.

He, too, is right.

As expected, the spiking of the White House football was swift .... and flat out nonsensical. Yesterday, the President said: “In doing so, [The Supreme Court] reaffirmed a fundamental principle that here in America – in the wealthiest nation on Earth – no illness or accident should lead to any family’s financial ruin.” 


What on God's green earth is he talking about?

Where exactly is this fundamental principal “affirmed?” In what document? As part of what doctrine?  Taking a page from the “Roberts Handbook of Incoherent Jurisprudence Rationalization,” the President has literally made this up ... and there isn't a mainstream media news person who will call him on it.

In his opinion, Justice Roberts wrote: “It is not our job to protect the people from the consequences of their political choices.”

That is true, of course, but it is his job to defend the Constitutions from obvious violations, just as he and four other justices did in shooting down the mandate that compels the people of the United States to engage in commerce under the Constitution's commerce clause. 

It should also be noted, as a matter of Constitutional rights, that the law as it stands now would effectively drown religious institutions – like Catholic or Jewish schools as well as affiliated hospitals - with fines (I should say, taxes) unless they relent to offer insurance and services that violate the teachings and doctrines of their particular faiths.

That's not going to go over too well.

First Amendment anyone?

Incidentally, I’m curious…. What kind of “tax” is the ObamaCare bill exactly? As explained by Mark Levin on his radio program yesterday, this is a very important and relevant question in justifying the bill's constitutionality. Is it a direct tax, as expressed in Article I, Section 2, Clause 3 of The Constitution? Is it an income tax, as expressed in the 16^th Amendment? Is it an excise tax?

As Levin explains: “It’s not a direct - or capitation - tax. It’s not an excise tax. It’s not an income tax. And you know what John Roberts says in response to all that? ‘Oh, let’s stop fiddling around with labels.’ Excuse me? It’s not fiddling around with labels. We’ve got all kinds of case law on how crucial it is.”

But it gets even more convoluted.

There is a statute called the Tax Anti-Injunction Act. Enacted in 1867, it essentially keeps people from being able to take the federal government to court “for the purpose of restraining the assessment or collection of any tax.” In other words, we cannot sue the feds simply because we don’t wish to pay taxes. Chief Justice Roberts cited this statute in his opinion yesterday, saying that because the writers of the ObamaCare bill did not call the individual mandate a "tax" (rather a “penalty”), the Tax Anti-Injunction Act is not applicable here, and thus it will not be considered a tax in this context.

Follow me here ..... Chief Justice Roberts initially wrote that the “penalty” for not having health insurance is not a “tax.” It’s merely a good old-fashioned penalty.

Roberts writes: “The Affordable Care Act 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.”

So, it's not a tax.

So far so good?

Got that?

It’s not a tax.

That is, until we get a little further in his opinion.

That’s when it suddenly becomes a tax.

He writes: “It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax. But while that label is fatal to the application of the Anti-Injunction Act, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.

“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.”

Did I read that correctly? 

"...neither the Act nor any other law attaches negative legal consequences to not buying health insur­ance, beyond requiring a payment to the IRS.”

My Lord, isn’t that enough?  

What???

What planet is this?

Incoherence, thy name is Roberts

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