July 2, 2012 by Jim Edsall
On June 28, 2012, the United States Supreme Court ruled that the mandate to purchase health insurance in the Patient Protection and Affordable Care Act (“ObamaCare”) is constitutional. Chief Justice John Roberts joined the liberal wing of the court to form a majority upholding the law, and how he reached that conclusion is highly problematic for all Americans. Writing the majority opinion, Roberts declared that “penalties” imposed for failure to purchase health insurance are not permissible under the Commerce Clause, but that they are constitutional as a “tax”. In so doing, he strayed far beyond the limits of the role of the court, re-writing a statute in the name of deference to the legislature, and disregarding precedent established by previous tax cases.
By this ruling, Roberts greatly expanded the power of Congress to impose punitive penalties on people who do not behave as they wish. The government can now punish you with a tax if you don’t buy an energy efficient house, or a GM car, or, yes, even broccoli. Liberals who applaud this ruling, beware – one day a different Congress and President could use this power in ways that you would not like. A law could now be passed declaring that unless a person joins the military and serves a minimum of two years he or she will be charged $2000.00 per year until they change their mind and join. Under the precedent set by John Roberts’ ruling, such a law would be “constitutional”. The government wouldn’t be telling anyone that they have to join, just that if they don’t they would have to pay for their “non-participation” and for being a “free rider”. They can even call it a “penalty” to avoid the political fall-out of calling it a “tax”. The government would just take it out of their tax refund, just like with ObamaCare.
If you are not already bothered by the effect of this decision, consider the twisted reasoning by which it was reached.
Roberts held that the ObamaCare penalties are not a tax under the Anti-Injunction Statute allowing the court to proceed with ruling on the case. He then turned around and declared that the penalties are a tax for the purposes of constitutionality. The dissent derided this as “verbal wizardry…carried deep into the forbidden land of the sophists.”
Roberts declared that not purchasing insurance is inactivity, so Congress could not regulate it under the Commerce Clause, but then declared that Congress can punish that inactivity using the taxing power. To justify this, he stated that tax laws are often used to “affect conduct”, such as providing tax deductions for purchasing a home. However, that is an example of a tax incentive to encourage behavior. That is entirely different from a tax penalty to punish inactivity. The one is a carrot, the other is a sledgehammer.
Having established that not purchasing insurance is inactivity under the Commerce Clause, Roberts then declared that choosing to go without insurance is activity equivalent to “buying gas or earning an income.” Buying gas and working are clearly taxable activities. Shockingly, under Roberts’ rule, not buying insurance is now just as taxable as buying gas.
Roberts claimed, without citing any law or precedent, that no one would dispute that Congress could impose a penalty for failure to purchase energy efficient windows and call it at “tax”. In their scathing dissent, the four conservative justices showed that by taking that position Roberts was completely disregarding existing tax law. Under previous case law, a “penalty” was imposed in order to punish action or inaction that the government wants to discourage, while a “tax” is collected to raise revenues for the treasury. The two have always been “mutually exclusive”. The ObamaCare statute does not include the word “tax” in describing the penalties, and they are not referenced in the revenue provisions of the statute. Congress had the opportunity to identify the penalties as revenue and to call them a “tax”. They failed to do so. On that basis, the statute should have been overturned, and the issue remanded to the Congress. Instead, Roberts effectively re-wrote the law, saying that since Congress failed to call it a tax, he would call it a tax for them.
Thus, John Roberts created the penaltax.
Giving Congress this expanded taxing power is at least as dangerous as sustaining the mandate under the Commerce Clause would have been, if not worse.
Some conservatives have applauded John Roberts for showing “judicial restraint” rather than “judicial activism”. However, under Marbury v. Madison, it was the court’s fundamental duty to review this law and strike it down if it did not withstand constitutional scrutiny. In this case, Justice Roberts actually engaged in judicial activism rather than the restraint he claims to have shown, taking it upon himself to re-write the statute in disregard of existing law.
Worse still, Roberts’ late-hour decision to side with the four liberal justices appears to have been political. The court had been chided by President Obama at the 2010 State of the Union address over the Citizens United case allowing political expenditures by corporations and unions. Then, in April of this year Obama warned the court not to overturn ObamaCare, since it had been passed by “democratically elected Congress.” Roberts certainly was also aware of residual bitterness among liberal Americans over the Bush v. Gore case. Reasonable questions arise as to whether Roberts, rather than have his court viewed as a conservative court, chose instead to contort the law to avoid appearing political, caving to liberal political pressure.
Congress is vested by Article I, Section 8 of the Constitution with the power to write the laws, not the judiciary. What other statutes might Roberts re-write in the future? What other precedents might he disregard? We should all be able to depend on the court to rule on the basis of precedent, and to respect the principle of enumerated and limited powers. All Americans – conservative, liberal, and in between – should be concerned about the dangers of this ruling.
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AUTHOR’S NOTE: Those of us who want to repeal and replace ObamaCare have a chance this Fall. We can elect a Republican President, hold the GOP majority in the House, and elect a majority of Republicans to the U.S. Senate. ObamaCare was passed using the budgetary reconciliation process, so repeal will only require a majority vote in the House and Senate.
The author is an attorney in North Carolina, and the recipient of the Distinguished Professional Achievement Award in Public Laws (Constitutional Law, Common Law, International Law, and Legislation) from Regent University School of Law. Virginia Governor Bob McDonnell is a fellow alumnus.