No doubt most people have learned of the Supreme Court’s ruling on the healthcare law that was released yesterday. The justices upheld the individual mandate portion of the Patient Protection and Affordable Care Act of 2010, also derisively known as “ObamaCare,” by a 5-4 vote, ironically with Chief Justice John Roberts aligning his opinion with the liberal progressive side of the Court and Justice Anthony Kennedy dissenting along with the three remaining conservative justices.
But more interesting than the makeup of the vote were the individual elements of the ruling itself. Continuing a rich history of erroneous and unethical rulings, the Court upheld the notion that the Taxing and Spending Clause in the Constitution is virtually unlimited and allows the federal government to essentially utilize taxation as a mechanism of behavior modification:
Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.
Obviously from an individual rights standpoint this rationale is completely absurd but it follows in the footsteps of tax policies that have been long established in the United States. Already the Congress taxes cigarettes and gasoline under the rationale of behavior modification but the aforementioned words are far more troubling than simply taxing debatably harmful (I am being generous for sake of the argument) commercial products. Given that it is universally held that Congress cannot “authorize, forbid, or otherwise control” religion, for example, this unethical ruling seems to grant Congress the power to tax certain individuals who either engage in a certain religious activity or choose not to engage in a different religious activity. Can anyone truly find it constitutional to tax individuals who choose not to engage in church tithing or who are practicing Muslims? But that is an issue for another time, when the Court inevitably expands this flawed precedent to the further detriment of individual freedom(s)…
For our immediate purposes, the Court reasoned that Congress could legally tax individuals if they chose not to participate in commercial health insurance because a tax is not a “penalty,” and failing to participate is not a punishable crime – mere semantics where issues of government propriety are concerned. The Constitution clearly provides that no one may “be deprived of life, liberty, or property, without due process of law” (emphasis added) which must involve indictment, jury and public trials, and direct access to witnesses and evidence. But despite this clear use of taxation as a punishment without due process, notwithstanding the Court’s interpretation, this policy has a well-established place in American tax law. For example, there is no clear distinction between levying a specific tax on an individual that chooses to forego a minimum level of health insurance (as defined by law/regulation, of course) and a mortgage interest tax deduction. After all, individuals that choose to rent or disengage from home finance by paying off their loan(s) are effectively taxed at higher rates than those who continue to actively engage in that particular form of commerce. The individual mandate tax must now be viewed as a tax deduction: to avoid the tax one must purchase health insurance, similarly to how one must obtain a mortgage in order to avoid taxes that are otherwise waived via interest deductions. This is a perfect example of how seemingly benign infusions of special interests in the function of government always lead to applications incrementally destructive to personal liberty. Perhaps the millions of Americans now outraged at ObamaCare’s infringements on individual rights will remember this the next time they are enticed to support inequitably applied tax policies that serve their own immediate interests.
What further compounds the incorrect ruling is the way the Court set about changing the meaning of the words Congress used in the bill and what the bill’s architects, both members of Congress and President Obama himself, are on the record as stating: the individual mandate was enforceable via a penalty, not a provision of a tax deduction policy. The Court grossly overstepped its bounds by ignoring the plain language rule of statutory construction. By the Court’s own admission, mandating health insurance under threat of penalty is unconstitutional so it chose to interpret the mandate as a mere coercive tax vice a penalty (as if such a distinction practically exists). As the dissenting opinion correctly reads, “The Court today decides to save a statue Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax.”
Although incredibly disappointing with respect to natural liberty, particularly the inherent prerogative to be left alone to live one’s life as s/he sees fit, the ruling did contain some significantly positive aspects. In invoking Congress’ power to tax, the Court concurrently rejected the constitutionality of the federal government’s attempt to force individuals to engage in commerce as a precursor to regulating it, pursuant to the Interstate Commerce Clause: “The individual mandate [if enforced by penalty vice a tax]… vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.”
This ruling sets an incredibly powerful and important precedent going forward; it essentially clarifies that only commerce activity can be subject to regulation, not commerce inactivity. While cradle-to-grave progressives celebrate the immediate political and social implications of the ruling, perhaps the hidden gem confers a larger, more meaningful victory to proponents of minimalist government. As the ruling variously reads:
The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous (emphasis in original).
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority (emphasis in original).
Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.
The Framers gave Congress the power to regulate commerce, not to compel it… (emphasis in original).
Additionally, the Court upheld some aspects of federalism in rejecting the extortionary notion that the federal government can deny statutory federal financing for current or previously established programs if the states do not accept Medicaid expansions under the new law. It remains to be determined how such an affirmation of federalism will affect longstanding policies such as the universal minimum drinking age across the states, which is not a federal law but is nonetheless mandated to the states under threat of withholding federal highway funds.
This inconsistency should be readily apparent to everyone; the federal government cannot threaten the states with punitive repercussions for not behaving as it wishes but apparently can threaten its citizens in such fashion. But as “shared responsibility payment[s]” are now officially considered constitutional forms of taxation, it is a sure bet that the very next step along this road is a single-payer, publicly funded healthcare system similar to Europe’s or Canada’s. Some would argue this was the long-term goal all along for many of the more liberal proponents of the law. Since evidence is mounting that indicates ObamaCare will be far more expensive than the deficit-neutral promises it was sold under, we can all bet that a European-style Value Added Tax (or some variation) is soon on the horizon as well.
Some have suggested the language and tone of the ruling indicates that Chief Justice Roberts “flip-flopped” at the proverbial last minute to help make the majority. Still others have hinted that he intentionally affirmed the law under the tax rationale to peg the individual mandate with that nasty little term that all of the bill’s proponents – and most smart politicians – tried to avoid in order to originally get it passed. The theory goes that by ruling the non-penalty penalty constitutional as a tax, it keeps the issue alive through the election season and labels President Obama as a promise-breaking tax hiker. I am not sure I give the Chief Justice that much credit as a political mastermind but either way the politicians responsible for this monstrosity now have no choice but to own it for what it legally is. While not exactly proof of a vast conspiracy theory, the Chief Justice did state in the decision that “…our Nation’s elected leaders… can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”