The Power to Mandate
Why You Should Deplore Roberts' Decision
by Thomas Del Beccaro

The United States was a nation of laws. Unlike any other Country, we began with a Constitution that set firm boundaries – not for us – but for government. Sadly, and actually, the Supreme Court decision on ObamaCare has changed all of that. In its wake, we are a changed Nation.

At the end of the day, legalisms aside, ObamaCare stands. Even if you never want to leave your home, the Government can now require you to either buy something or pay the government for your decision not to buy it. How the Supreme Court got there is as troubling as them granting that taxing power.

Keep in mind that after our Revolution, our Country was mired in a Depression that rivaled the Great Depression and we were deeply in debt. Even so, this Nation that fought a war over taxation gave the federal government precious few options for taxing people. It was so limiting, and anti-tax sentiment so deep, that anyone pushing for an income tax was deterred for a Century.

To this day, taxes remain a lightning rod of political danger. So much so that no Democrat, least of all our President, said that the individual mandate of ObamaCare was a tax. The legislation never would have passed as a tax. Mindful of that, the Democrats said that failing to getting your own insurance would result in a “penalty.”

Not just once did they use that term – they used it 18 times in the legislation. That was how it was sold. That was how it was passed – but not how it was upheld.

The Supreme Court Upholds Cynicism.

In order to even consider the merits of the case, the Supreme Court said that the individual mandate penalty was not a tax. Because if it was a tax, by law, they could not have even heard the case until someone actually paid the tax.

Ok, it was not a tax.

But wait! Once clear of that legal hurdle, the Supreme Court, just pages later, decided it was a tax in order to uphold the law.

So let’s be clear: Obama said it wasn’t a tax, Congress said it wasn’t a tax, the Supreme Court said it wasn’t a tax and then the Supreme Court said it was a tax.

Got it?

As a lawyer of 25 years, I understand nuances within the law exist. This, however, amounts to legal cynicism of unprecedented heights. Most Americans rightfully decry the games lawyers play. They are rightfully suspicious of the games politicians play. They see the system as a rich man’s game – subject to the most well paid lawyer and, therefore, necessarily unfair. They are, by and large, not wrong.

Although America is not unique in suffering from such cynicism, it uniquely suffers from that problem because ours was a system that started as a government of laws not of arbitrary rulers. Arbitrary rulings hurt us more than others.

The manner in which ObamaCare was passed and now the way this Supreme Court ruled on ObamaCare just doubled down on that problem.

Our Supreme Court is a modern day version of a council of elders - a respository of wisdom whose currency is trust. With this ruling, the Supreme Court raised cynicism to standing law and diminished their stature, and therefore our system, in the process.

The Age of the Virtue Tax.

As for the merits of the ruling, you all should be scratching your head as you channel Rumpelstiltskin.

We used to live in a place where your home was your castle – inviolate from government intrusion.

Yet, we read from page 39 of the Roberts’ opinion:

“Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,” a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax.”

Really Mr. Roberts? Since when? Was I asleep that long?

Now I know Congress has outlawed me from buying certain light bulbs – and no our Founders would never dare do that.

I know Congress is taxing me so it can buy certain light bulbs.

But unless I woke up 20 years from now and I am in Cuba, I was unaware that Congress could tax me because I am not buying certain light bulbs.

How about you? Did you know you could be taxed for doing nothing?

That point is what is so very important about this case.

Before Robert’s decision, our system of government taxed you for doing something: for earning income, owning property, for buying gas, for using the telephone, etc. - a myriad of taxes that our Founders would deplore but at least authorized a method for doing so.

Again, in the past, you are taxed for doing - not for inactivity.

Despite Roberts’ "window "claim, as Scalia, Alito, Kennedy and Thomas would say: never - never - has there been such a case as this that taxes for doing nothing. If there was, Roberts would have cited it.

There is now however. This case says Congress can “tax” you if you don’t buy something.

So call this the age of the “virtue tax.”

You have been aware of the “sin” taxes.

Congress taxes certain items it does not want you to buy – and no, I don’t think our Founders would be thrilled by that either. Cigarettes, alcohol – and now the wrong type of fuel, oh let’s say: gas, are highly taxed to deter you from buying them.

Unable to outlaw certain products, government instead highly taxes them. But a least you were acting when you incurred the tax; you were buying.

Knowing of that political/economic dynamic, our historically most prominent Chief Justice John Marshall wrote that “the power to tax involves the power to destroy.” He said that because a high enough tax can kill of a product or an activity.

Now, however, we have a Supreme Court Justice that believes that “the power to tax involves the power to mandate” – all in the name of the perceived virtue of any given day. Even when we don’t act – we can be taxed for the life others now want us to live.

If you do not think that is a sea change – then you have not understood the American Experience at all.

All of which brings us to: America Lost.

There are those who say Roberts made this decision because he no longer wants the Court to be used to decide such political matters. Along that line of thinking, they say that Roberts has thrown this back in the lap of voters and handed Romney an issue.

In the wake of the decision, it is clear voters will decide the fate of ObamaCare this Fall. The majority will decide its fate– but that is not what the America experiment was about either.

America was not an experience to be determined by the majority. It was never a pure democracy. There would be voting yes. But the point of Constitution was to put beyond the power of voters the ability to enact certain laws. Our individual freedom would be protected because we would be protected from the “excesses of democracy.”

In fact, prior to our Constitutional Convention, the out-of-control legislatures of the individual states, elected by simple majorities, were passing an endless array of laws – many of them detrimental to our economic health.

Our Founders, Madison among them, wanted to make sure America would not fall victim to the “tyranny of the majority.” They believed that the actions of the states represented an “excess of democracy” and they were a central reason our Founders pushed for our Constitution – a Constitution that would limit law-making and curtail run away majorities.

Not long after the adoption of our Constitution, Senator Daniel Webster issued us this warning:

“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.

Sadly and for years now, we have lived in an overregulated state. We have a government that passes a myriad of laws our Founders would once again consider to represent excesses of democracy.

Prior to Robert’s decision on ObamaCare, Webster’s warning applied to government curtailing the way you acted. Now, our Congress, elected by a majority of voters, has no boundary. It can tax you for not acting. Frankly, what significant avenue of authority is not granted the federal government at this time?

Our Supreme Court was supposed to protect us from such laws by upholding a Constitution that was to protect us from such laws. The Robert’s decision, in a very real way, abdicated that necessary function.

In the final analysis, this decision:

(1) granted the federal government unprecedented power,

(2) weakened the power of the Supreme Court,

(3) weakened our Constitution, and therefore

(4) weakened our Country.

The American Experience cannot withstand this change to our Constitution in the long run. Yes tomorrow will be much like today. There will not be a rush, especially while Republicans control the House, to pass a series of Virtue Taxes at the federal level. That is an analysis of the minute hand of history.

Eighty years after the New Deal and fifty after the Great Society, we have a government of indeterminable size and scope –not to mention debt. Those programs were sold as ensuring public prosperity and now they have ensured overwhelming debt that is impoverishing us.

Fifty years from now, the US will be interminably worse and this ruling will play a major role. It opens a new door through which even more federal centralization of power will enter. That is the hour hand of history that will toll for the American experience.

To preserve the American Experience, we need a Constitutional Amendment that states quite clearly that government cannot regulate or tax inactivity. If we do not fight for that, we will have accepted government as our Master and disappointed our Founders and History.

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More Reading:

Question: Didn’t the Robert ruling curtail the Commerce Clause by ruling Congress could not compel the individual mandate because Congress cannot regulate non-activity?

Answer: Yes. But should not be such a huge victory. It should have been obvious. The fact that he got four liberal Justices to agree to it as a price for upholding ObamaCare will be beneficial later. The price to get that agreement, however, is unacceptable.

Question: Who benefits more politically: Obama or Romney?

Answer: In the short term – Obama. If it was overturned, it would have been a huge embarrassment and added to a string of bad months for him. It also gives him a bump among his lackluster supporters. A month for now, however, that short-term advantage will become Romney’s. More people are unhappy about the ruling than happy because more are against the law than for it. The revitalization of Tea Party, if it needed it, is a result of the ruling. Finally, ObamaCare is also a job-killing machine. So the economy was hurt by the ruling as well. Since that is Obama’s greatest weakness and is the governing dynamic of most elections, this ruling will help Romney.

Question: Was this ruling an example of an activist judge?

Answer: Yes and for two reasons. First, it is an unprecedented interpretation of our Constitution. On page 21 of their dissent, Scalia et. al. stated that this case does something that the Supreme Court “never – never” has done before. They are factually correct. Changing law or creating law is the very definition of an activist judicial decision.

Second, however beneficial, there was no reason for the Supreme Court to make a ruling on the Commerce Clause. It is the job of judges to make the most narrow ruling possible and not rule on anything else that isn’t absolutely necessary. Judges are not supposed to pontificate on potential other theories or findings. Countless rulings from Judges say something like the following: “Because I find that X law must be struck down (or that Y should lose) because of Z reason, it is not necessary for me to consider the other theories offered.”

The only ruling “necessary” to uphold ObamaCare was that it was constitutional as a tax. The ruling on the Commerce Clause was gratuitous and, frankly, irresponsible.