Well, yet another Republican Supreme surprise! How come Dem Supremes never give us surprises? In other words, who are the real ideologues? Actually, Roberts has often sided with the Court’s Lefties, e.g. in the Arizona decision earlier this week. What’s more, Rush Limbaugh was told several years ago by an “insider” to watch out for Roberts. Rush’s theory is that the CJ went into activist mode so that the Roberts Court will be just as famous and noteworthy as the Warren Court. Who knows? Who cares? What we have to do now is deal with the mess the Chief Justice (CJ) has left us with. Nevertheless, a few words about the CJ’s “reasoning.”
From the Wall Street Journal: “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions,” the chief justice wrote. Four dissenting conservatives, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, agreed. Bait and switch. Yes, you are right, but it doesn’t matter because they can still do it. Everyone made fun of the plaintiffs for their Commerce Clause argument and the government for their tax levying argument. Well, it seems the CJ had the last laugh. His Cesarian Hypocrisy – Barack Obama (HCH BO), while Obamacare was being debated, kept shouting: “The mandate is not a tax!” Of course, he made the IRS responsible for collecting the “penalties” and, then, in court, as his backup (and saving) argument, he said Congress’ tax levying power allows the mandate. HCH BO continues to earn the ‘H’ in my epithet. Well, at least the Republicans can now say, with the imprimatur of the Supreme Court, that Obamacare will be paid for by the largest tax increase (falling mostly on the middle class) in the nation’s history.
Again from the WSJ: “Neither the label of ‘penalty’ nor the fact it was intended to influence behavior mattered, [the CJ] wrote. The penalty functioned like a tax—and other taxes, such as those on cigarettes, are enacted principally to create incentives rather than raise revenue, he said. Conservatives and, especially, Libertarians have been saying that the taxes should NEVER be used to ‘influence behavior’ but used only to raise sufficient revenue for the government’s legitimate activities.” Well, the chickens have come home to roost! The CJ can legitimately point to both parties’ long history of using the tax code to “form” society as precedent for his ruling. Still, there is a big difference. In the past, Congress has either given tax breaks (i.e., rewards) for doing things it wanted people to do or, more rarely (as with the cigarette tax) penalized people for doing what it didn’t want them to do. Either way people still had a genuine choice. They could either decline the reward, accept the penalty, or not accept it by not doing the “discouraged” activity. Now, for the first time in history, Congress has been given power to tax people for NOT doing what it wants them to do, in this case, buy health insurance. In striking down the Medicaid part of Obamacare, the CJ wrote that it would put a “gun to the head” of states, while saying participation in the expanded program should be voluntary. It seems, in CJ’s opinion, Congress can’t put a gun to the heads of the States, but it can put a gun to the heads of the American people.
What the CJ has allowed Congress to do reminds me of the Islamic Jizya. This is the tax Christians and Jews must pay in Islamic countries in lieu of converting to Islam. In other words, Christians and Jews have to pay for the privilege of not converting, making them, very much, second class citizens. Similarly, say Congress and the CJ, you don’t have to buy health insurance, put you have to pay a tax for not doing so. As another example, when the Mafia tries to do what the CJ says Congress can do, people call it a shakedown or, more accurately, theft by extortion. (BTW, the middle class and poor, whom HCH BO claims to care the most about, will be hurt the most. The rich can afford to pay the blackmail – I mean tax. The middle class and poor cannot.)
Where will Congress’ new power to tax non-activity (in essence to tax something that does not exist) end? As John Steele Gordon writes on yesterday’s Commentary blog, “Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?” When one recalls that the unfunded liabilities of the Federal Government are literally astronomical, even if Obamacare is repealed, armed with the CJ’s opinion, what taxation mischief might future Congresses engage in, especially when one notes the four Lefties on the Court swallowed HCH BO’s Commerce Clause argument whole? The mind boggles!
There is one more Constitutional “nicety” the CJ overlooked. He says that the mandate is tax. Fine. Tax bills, according to the Constitution, are supposed to originate in the House of Representatives. The problem is, the mandate originated in the Senate. Details! Details!
Finally, I wonder how today’s decision will affect the Constitutional challenges to the HHS contraception/abortifacient mandate. Since the individual mandate is a tax, can Catholic institutions who don’t follow the HHS’s mandate avoid the penalty by means of their tax exempt status, or is the penalty for not following the HHS mandate not a tax? In the words of that great jurist Humpty Dumpty, “When I use a word, it means just what I choose it to mean – neither more nor less.”
My last words: END THE TYRANNY! ELECT ROMNEY