The Constitution Is What They Make It

The Founders’ fear of a powerful central government has been betrayed by the Court

 “You are free to not eat broccoli, but if you don’t the government will impose a penalty on you. This penalty is really just a tax and since the government has the power to tax for all sorts of reasons, they can tax you if you don’t eat broccoli.”

By Jeff Harding

This is the logic of Justice Roberts argument in the Obamacare case that was handed down today.

This should not surprise us because the Constitution is whatever the Justices wish it to be. Now they have handed the government another mandate to regulate our behavior. As we know they can and do regulate our behavior already. For example, if you smoke, they will tax your habit heavily. It is not a giant leap to force you to do something they want you to do by penalizing you for not doing it. According to today’s ruling, there is nothing in the Constitution preventing them from doing this.

The technical details of the ruling are interesting but very disappointing. Roberts’ justification of the Obamacare Act relied on the taxing power of the federal government as well as the general welfare clause.  Roberts shot down the government’s reliance on the Commerce Clause to mandate our behavior. He wrote, “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular [interstate] transactions.” Some clever commenters are saying, “Aha, that sneaky old Roberts. He always wanted to limit the wide powers of the Commerce Clause and this is how he did it.”

This limitation of the Commerce Clause may or may not be significant. Only future cases will answer this question. Based on the history of the Court, I have my doubts that this will impose any new restrictions on the government’s broad powers to regulate the economy.

The argument that a penalty was really a tax was, to say the least, a novel approach since the Administration thought it was a penalty and not a “tax” (the statute clearly points this out). Thus Justice Scalia’s famous query during argument that the government could force us to eat broccoli under the government’s theory of the Commerce Clause was cleverly turned aside by appearing to support the logic of Scalia’s broccoli argument yet upholding the law under the taxing authority.

The tax argument by Roberts is a good example of finding means to justify and end.

"None of this is to say that the payment is not intended to affect individual conduct.  Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new.  Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry."

Robert’s final words on the subject:

"But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.  Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."

Robert’s logic is tenuous: none of the examples of taxation he cites impose a “tax” on something someone doesn’t do. If I wish to buy expensive heavily taxed imported goods, that’s my choice. Under his logic they could “tax” me for not buying domestic goods because it serves the goal of fostering “the growth of domestic industry.” Roberts just makes it up to fit his intended outcome.

The Court’s dissenters make quick work of Justice Robert’s invention (turning a penalty into a tax). Justice Kennedy’s dissent on behalf of Scalia, Thomas, and Alito:

Our cases establish a clear line between a tax and a penalty: “[A] tax is an enforced contribution to provide for the support of government; a penalty …  is an exaction imposed by statute as punishment for an unlawful act.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty.  But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

It’s not a tax, it’s a penalty.

This use of the taxing power was hailed by most legal scholars this morning as a proper conclusion by Roberts. Most whom I heard couldn’t understand why anyone would think it would not pass constitutional muster. Most legal scholars see nothing wrong with expanding federal power to implement social policies they believe are beneficial. This is the “living constitution” theory which has guided legal scholarship for many years, most specifically since FDR’s New Deal. But it is an old argument going back to the Federalists and the Jeffersonian Republicans.

What Justice Roberts has done may be another “switch in time to save nine.”* Perhaps it is a bit hyperbolic to so suggest this, but clearly he wanted to uphold Obamacare and take the Court out of the political and policy spotlight by this legal sleight of hand. Left-wing commentators are saying how crafty the Justice is to uphold this worthy social policy on the one hand, and yet hew to his supposedly conservative roots with his Commerce Clause arguments on the other. Most of these people could care less about the Constitution: to them the end justifies the means in every extension of federal power.

This is the problem with progressives who think the government has the right to regulate the economy in any way Congress deems it, and the Court is full of progressives. Justice Ginsberg in her opinion said, “The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”

The Constitution has been gutted by the Supreme Court, and their butchers work continues. The Founders’ fear of a powerful central government has been betrayed by the Court. Our original constitutional limitations on federal power have been ground down by redefining the Constitution to suit government goals. A Court can now find constitutional power for almost anything the government wishes to do. 

With but a few exceptions we now closely resemble the Nanny states of Europe. And those countries have powerful central governments with few limitations on their power. Now with government-run health care, it would be difficult to distinguish the U.S. from, say, France. After 225 years, we are “them”. Thank you, Justice Roberts for doing your part.

*It is ironic that the justice who switched his vote in the famous “switch” case ( West Coast Hotel Co. v. Parrish) was also a Roberts, Owen Roberts.