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Chief Justice John Roberts: Trojan Horse?

By Rachel Alexander
web posted July 2, 2012

Conservatives are scratching their heads trying to figure out why Chief Justice of the Supreme Court John Roberts voted with the four liberal Justices on the Court 5-4 to uphold the constitutionality of the most controversial part of Obamacare. Even swing vote Justice Anthony Kennedy voted against it. The Obamacare individual mandate requires all Americans to purchase health insurance by 2014 or face jail time or huge monetary penalties.

The majority decision, written by Roberts, characterizes the mandate as a tax permissible under the constitution's Tax Clause. But what if someone chooses not to buy health insurance, resulting in a penalty of a fine or jail time? How can that be characterized as a tax if you're not buying anything? The Obamacare law does not even refer to its mandate as a tax. Obama declared in 2009 that his health care law was not a tax. By Roberts characterizing it as such, the reach of Congress's taxing power has been greatly expanded.

Using the majority's reasoning, Congress could put in place all kinds of draconian requirements. The possibilities are endless as to what kinds of things could be forced on people by threatening them with an onerous "tax." This decision essentially authorizes Congress to do almost anything as long as it is labeled a "tax." Greg Sargent at the Washington Post cites "Broccoli Tyranny," a phrase coined by New York University law professor Barry Friedman who wrote a brief supporting Obamacare. "They can't make you eat broccoli, but they can tax you for not eating it," Friedman says. Obamacare can be distinguished from local and state mandates to attend public schools and pay for public schools, since the Tenth Amendment grants the states powers not specifically granted to the federal government.

The dissent, written by conservative Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, argued that the individual mandate is a regulatory penalty, not a tax.  They observed that in a few prior cases, the Supreme Court has held that a "tax" imposed upon private activity was so onerous as to constitute a penalty. Americans who do not purchase health insurance will be fined up to $1900 per year. If that is not an onerous "tax," I don't know what is. The penalty for noncompliance is up to a year in jail or a $25,000 fine.

Daniel Fisher at Forbes Magazine argues that Roberts was not actually ceding power to Congress, but  amassing more power for the Court, reminiscent of the power play by Chief Justice John Marshall in Marbury v. Madison. By siding with the liberals on the court on the narrow question of whether the mandate was a tax, Roberts was able to assign writing the majority opinion to himself. He then made two two far reaching decisions restricting Congress. He ruled that the individual mandate was not authorized by the Commerce Clause – a setback to liberals, who have vastly expanded the scope of the Commerce Clause to authorize all kinds of government regulations. Roberts reasoned that because it compelled individuals to become active in commerce by purchasing a product, not simply regulating existing commerce, it fell outside of the scope of the Commerce Clause. Roberts also limited a massive expansion of Medicare. While not quite striking it down, he held that it would be unconstitutional for the federal government to withhold Medicaid funds for states that failed to comply with the expansion provisions.

Not all legal scholars think this is a triumph for the judiciary over Congress. Professor Friedman believes using the Tax Clause instead of the Commerce Clause is bad news. He said, "This is far more devastating to federalism and the balance of power between states and the national government," he says. "You can now tax pretty much anything." Nick Dranias, a constitutional lawyer, lamented, "It is a turning point in history when the federal government can use the taxing power (the power to destroy) to accomplish regulatory ends denied to it under its enumerated powers."

There is speculation that Roberts ruled this way in order to help conservatives strategically, to leave Obamacare hanging around Obama's neck for the upcoming election. By asserting that Obamacare is funded by taxes, it now becomes just another tax increase that the Democrats will have to defend. If it is a tax, it may be the biggest tax increase in history. It is so unpopular it will drive more people out to vote, especially doctors. A Rasmussen poll this month found that 52% of likely voters want Obamacare repealed. Obama is trying to avoid speaking about it in his reelection efforts; this victory puts him in an awkward position. Mitt Romney has said the first thing he will do when he becomes president is sign an Executive Order exempting all 50 states from Obamacare.

Did Roberts rule this way for tactical reasons, or did he sell out to the left?  One connected D.C. insider is skeptical of Roberts' motives and believes he ruled that way because he is just another Washington politician. The Volokh Conspiracy legal blog wondered in May whether Roberts was pressured to uphold the individual mandate.

The problem with "free" health insurance for everyone is that it does not exist. Instead, as has happened in Canada and European countries which have socialized medicine, people are put on waiting lists or lotteries in order to receive treatment. It is not free if you die before receiving it.

NFIB v. Sebelius will go down as one of the most significant rulings coming from the Supreme Court. Instead of continuing 200 years of lumping government expansion of power under the Commerce Clause, the Supreme Court has now turned to the Taxing Clause to authorize massive new regulations. ESR

Rachel Alexander and her brother Andrew are co-Editors of Intellectual Conservative. Rachel practices law and social media political consulting in Phoenix, Arizona. She has been published in the American Spectator, Townhall.com, Fox News, NewsMax, Accuracy in Media, The Americano, ParcBench, and other publications.






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