Roberts Invented A Way to Save Obamacare

The strained and contorted opinion offered in upholding the Constitutionality of Obamacare in NFIB v. Sebelius raises questions that may plague the republic for years to come.

True to expectation, and in strong conservative language, Roberts wrote passionately that the individual mandate is an unconstitutional contortion of the commerce clause.  Roberts reaffirms and strengthens US v. Lopez by making it clear that the commerce clause can be used for “activity,” not inactivity, essentially that Congress cannot create commerce for the purpose of regulating that commerce.

With a neck-snapping turnabout, Roberts justifies the individual mandate as a tax.  Setting aside that the law was written attached to the commerce clause, and that the President has vehemently denied that Obamacare is a tax, Roberts, permits the individual mandate as a tax.  Doing so, Roberts may be shutting the valve on future commerce clause abuses as commentators like George Will, Ezra Klein, and Charles Krauthammer have suggested, but this seems unlikely.  Rather it seems more probable that Roberts has loosened the ability of Congress to abuse the commerce clause by making “pre-existing activity” the minimum threshold.  At the same time, Roberts has created a new “tax” loophole that will permit a deluge of coercive mandates.

This tax loophole created by Roberts is problematic to more than just the continuance of limited government.

First, since the Obamacare tax is not apportioned equally among the states (as the Constitution requires of all federal taxes) but applies to individuals based on their resistance to the compelling force of the tax.  This begs the Constitutionality of the tax and hopefully invites future challenges.  Roberts rationale is that since this individual mandate tax is “not like [any] other direct tax under this Court’s precedents.  It therefore need not be apportioned” is the worst sort of judicial activism.  This judicial overreach creates something out of nothing.  Even the activistic Roe v. Wade attempted, however feebly, to attach the new “right” to “penumbra” and “emanations” of established law.

Second, Roberts writes seemingly contradictory proscriptions.   He simultaneously affirms that Congress is not permitted to “compel” the activity of individuals, while offering the taxing authority to do just that.

Directly in the majority opinion Roberts writes that the individual mandate tax “has no negative legal consequences” except a payment.  Having thus poured grease on a slippery slope, later in NFIB v. Sebelius Roberts overturns the Medicaid expansion provisions of Obamacare on the grounds that the tough financial penalties unduly compel state expansion of health coverage.  Explanation of the legal justification for this apparent contradiction is elusive.  Put bluntly, Roberts – with the four most liberal Justices – offers better protections to state government than American individuals.

Worse, there is only one discernible, fundamental difference between a tax intended to compel the actions of a person and a financial penalty intended to compel state compliance.   The tax for non-participation in the health insurance market is set to be 2.5 percent of income.  The price to the states would be 10 percent of their overall Medicaid budget.  Thus, implied by Roberts, Constitutional justification lies somewhere between 2.5 and 10 percent.  Of the former, Roberts wrote that “the payment is not so high that there is really no choice,” and of the latter being described as “dragooning” by the Chief Justice.   Do you feel your liberties protected by this farcical legal doctrine?  When some future Congress increases the tax for non-behavior to 4 percent will it then become unconstitutional?  What of 6 percent? Conversely, if the penalty to the states was lowered to 8 percent would it then become Constitutional?

Chief Justice Roberts and his four abettors reminds us that the national government possesses only enumerated powers, these being so clearly defined as to nearly render the Bill of Rights moot.   Among these limited powers is the ability to tax which Roberts has expanded to be used to force action, and the disregard to the directive to apportion equally among the states.  The only guidance offered is that the tax be somewhere in a vague spectrum between strong enough to bruise and not so much as to cripple.

The dissenters to the majority opinion offer two particularly devastating critiques in addition to agreement with Roberts, et. al. that the individual mandate is a violation of the commerce clause.

The argue persuasively and cite precedent that if a majority agrees that the law – as written – is unconstitutional, the court has no ability to re-write the law to make it legal.  “We cannot rewrite the statute to be what it is not” writes the Dissent.  Roberts responds with quotes that suggest the Court must endeavor to salvage what it can from an unconstitutional statute, but this argument clearly supports the notion of the severability of clauses, not the wholesale rewriting of the law, which is in fact a usurpation of the legislative prerogative.

The second mortal blow of the dissent is that the individual mandate is not a tax, but rather a penalty.  The difference is established by US v. Reorganized CF&I Fabricators.  “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.”  Is non-participation in Obamacare an unlawful act?  Yes, because Congress cannot inflict a penalty for a lawful act (Powhatan v. Appomattox).  As the very authors of the statute concur and forward identical justification, Roberts again has advanced an entirely new theory of jurisprudence.

This all leads to the another disturbing development in the case.  Was Roberts bullied into upholding Obamacare?

Though the truth may never be fully known, it has already been revealed that Chief Justice Roberts began writing a majority opinion with Scalia, Alito, Thomas, and Kennedy to overturn Obamacare.  It is also known that unlike most of his colleagues, Roberts follows the political news and is very protective of the reputation of the Court.  We also know that Roberts changed his mind, and thus moved a 5-4 decision to a 4-5 decision.

Between the end of oral arguments and the release of the decision, President Obama made public and pointed comments effectively daring the Court to a political duel.  We do not know the absolute truth, but it seems probable that Obama’s efforts bore fruit.  The notion that a sitting President could bully the head of an allegedly co-equal branch of government and be successful is a poor portent for the continuation of system based on checks and balances.

The survival of Obamacare surprised just about everyone.  There was never a reason to hold anything but the firmest confidence that the individual mandate in Obamacare would be struck down by the Supreme Court.  The use of federal force to require an individual to purchase a private product would be such an outrageous abuse of the enumerated powers of the Constitution that its survival had been incomprehensible.

Underscoring the certainty of the death of Obamacare was the political climate against the statute.  Obamacare was pushed through the United States Congress in a manner best described as “sketchy.”  The hyper-partisan legislation led to a national backlash and a historic “shellacking” of Democrats in the 2010 elections, and the preponderance of lower courts forcefully overturned the individual mandate.  Even to liberal jurists, Obamacare threatened to fundamentally change the relationship of the individual to the state.

When it was announced, the NFIB v. Sebelius decision came like a punch to the gut.  It is easy to argue that the diminution of the individual under the leviathan is a mortal blow to the very idea of a free republic.  Even if repeal is possible, the legal precedents manufactured by Roberts will long haunt us.

Finally, many wonder how the Obamacare decision will affect the 2012 Presidential election?  Frankly, it does not matter.  More than ever, I hope Obama is removed from office, and I do agree with those arguing that the survival of the unpopular law is a hammer for Republican candidates – but this is irrelevant.  The Roberts opinion in NFIB v Sebelius will outlive the next election, and in all likelihood, several administrations.  The damage has been done

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