The Supreme Court rules that the government can’t make you buy something, but it can punish you if you don’t.
The Supreme Court has issued its odious ruling that OamaCare’s individual mandate, the legislative decree that all individuals shall purchase a government approved health insurance plan, complies with the Constitution. This ruling could well be interpreted as a final evisceration of Constitutional limits on Congressional power over The People. In it the Court has offered a formula to help future Congresses justify commanding individuals to do virtually anything.
Chief Justice John Roberts wrote the majority opinion. In what will likely become one of the his opinion’s most often quoted sentence Justice Roberts downgraded the Supreme Court from guardian of the Constitution and of individual rights to enabler of power grabs by elected politicians:
It is not our job to protect the people from the consequences of their political choices.
Justice Roberts’ majority opinion would seem to confirm this stunningly indifferent attitude toward the duty of the Court.
The opinion began well enough. Indeed it began with such an effective rebuttal to the Administration’s main case that TV networks initially reported that ObamaCare’s individual mandate had been struck down – before reporters read the rest of the opinion.
Justice Roberts began with a reminder that under the Constitution the Federal Government is supposed to be restricted to a few, enumerated powers. He then acknowledged that politically motivated interpretations of the Commerce Clause over the past century granted Congress much more power over the business and personal lives of The People than the plain language of the Constitution provides (in Justice-speak “our”, “we” and “us” includes all previous courts, back to 1790):
The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”Art. I, §8, cl. 3. Our precedents read that to mean that Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.”
With his reference to “our precedents” Justice Roberts seems to acknowledge that the actual words of the Commerce Clause and the contemporaneous writings of the founders, including Federalist 22 don’t begin to support the broad, nearly limitless powers commerce clause precedents have conferred on Congress.
Based on the definition of the word “commerce” it’s obvious the clause was intended to refer to transactions only, not persons or things. The word “affect” is not in the Commerce Clause and it does not empower Congress to regulate an activity simply because in the opinion of politicians it “affects” some sort of commerce. Indeed, such an interpretation is dangerous to liberty because it’s hard to think of any human activity that couldn’t be said to, somehow, “affect” commerce. (Anticipating the human activity many readers will immediately think of, I’m cynical enough to imagine a motivated politician could claim even that activity “affects” commerce by distracting the parties from shopping or watching commercials.)
Justice Roberts Continued, appearing to work his way toward declaring the individual mandate Unconstitutional:
Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders…Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits.
He continued with Several paragraphs demonstrating that all previous commerce clause precedents involved Congress reaching out to regulate existing, commercial activity and then drew this distinction:
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce…Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
As we have seen, President Obama and the Progressive movement he represents strongly desire for the political elite to make lots of decisions for us instead of leaving them to each of us as individuals. Justice Roberts showed how the Administration’s Commerce Clause theory could apply just as well to a host of other purchases commanded by government to “solve” other problems identified by politicians and then concluded that the Commerce Clause does not give Congress authority to command that every person buy a government approved health plan:
The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.
So far, so good. But unfortunately Justice Roberts’ immediately turned to tortured logic and discarded the limited government principles he had just put forth in order to contrive a rationalization for finding the individual mandate Constitutional:
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.
He mentioned several other federal taxes as examples but in every case an activity or purchase was taxed. In no case was there a tax on inactivity, nor was there a tax on opting not to purchase something. Yet he didn’t apply the same standard he used to invalidate the Commerce Clause justification. Ultimately, Justice Roberts ruled that the penalty mechanism Congress created to enforce the individual mandate was a tax and thus Constitutionally permissible.
Some Conservative commentators say that even the ruling’s Commerce Clause opinion fails to set precedent because it is “dictum” or an opinion of the court that is not essential to the specific ruling, that Congress’ taxing authority empowers it to compel us to buy health insurance. However, deep in his discussion of the tax justification Roberts did include this:
The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.
The word “holds” makes it a “holding” which does establish a precedent that the Commerce Clause does not empower Congress to regulate inactivity or to command someone into commerce in order to make her subject to regulation.
Unfortunately however, nothing stops future litigants before the court from arguing that the Commerce Clause language was mere dictum. And, as Justice Roberts demonstrated in this very opinion there will always be some Justices who will use any means to contrive an outcome they desire but cannot reach through proper Constitutional interpretation.
The Bottom Line
This ruling would appear to provide Congress with the means command us to do anything as long as there is a monetary penalty for non-compliance. It would appear also that the politicians don’t even have to use the politically toxic word tax when they write the law because the Supreme Court just demonstrated that it is willing to back-fill, to rename it a tax and rule it Constitutional, no matter what misleading term is written into the legislation.
This ruling sets terrible precedent. It makes the November election and aggressive political action beyond the election all the more critical and urgent.
In our next post we’ll consider the political consequences and the belief of some of our Conservative colleagues that this ruling is a blessing in disguise.