Mandate upheld: what now?

posted at 10:41 am on June 28, 2012 by Ed Morrissey

After months and months of focusing on Anthony Kennedy as the weak link in the conservative chain at the Supreme Court, it turns out that Chief Justice John Roberts was the one the Right needed to fear.  With the more centrist Kennedy dissenting, Roberts signed off on the individual mandate in ObamaCare, not as part of Congress’ power under the Commerce Clause, or even the ludicrous reference to the “Good and Welfare Clause” from some Democrats, but from the more mundane and substantial power to tax.  The opinion actually ruled that the mandate violates the Commerce Clause, but as a tax that no longer matters.

It’s an interesting argument, but one that should have Americans worried.  Basically, this is a tax that you have to pay to private companies.  For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II].  The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing.  It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.

Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

By the way, don’t forget when Obama insisted that this wasn’t a tax, via Patterico:

So what now?  Mitt Romney and Republicans can now run on repeal as a big issue in the campaign.  They should emphasize the tax argument when they do, because this tax hits everyone.  The ruling may alleviate some of the bad polling the ACA has received, but probably not by much.  It’s going to remain deeply unpopular for the next few months.  On top of that, the decision to uphold the law also means that the fight is still on over the HHS contraception mandate.  We can expect the Catholic bishops to keep up the pressure on the Obama administration’s attempt to define religious expression for the purpose of controlling and limiting it — and we can probably expect the challenge to it to reach the Supreme Court, too.

This started off as a political fight, though, and it’s now clear that it has to get resolved as a political fight.

Update: Bill Whittle explains why ObamaCare won’t work:

Expect the GOP to be making these arguments on the campaign trail over the next few months.

Update II: I clarified what I meant in the second paragraph by editing it a bit.  My argument is this: the tax isn’t just on non-compliance, which is what Roberts and the court ruled constitutional.  The law forces people to give money to private industry, in the form of buying health insurance.  That’s a tax too, imposed by force on Americans, in this case the force of the penalties and the legal consequences of not paying them.


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Final vote on the contempt charge against Holder going on in the House. CBC starting to walk out with others. Final Vote:

Yea: 255 No 67 Pres 1 NV 110

bluefox on June 28, 2012 at 4:41 PM

The courts rejected the use of the Commerce Clause and the Necessary and Proper Clause, IN THIS NARROW CASE. This doesn’t represent a Supreme Court rethink of the Commerce Clause. All the existing abuses of CC will continue, and new ones will be created and perhaps challenged in court and may pass or fail on their own merits.

slickwillie2001 on June 28, 2012 at 3:21 PM

I will agree with you that it doesn’t seem to roll back Wickard at all, but I don’t think the argument is so narrow as not to produce some precedent for economic mandates in the future:

Our precedents recognize Congress’s power to regulate “class[es] of activities,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), not classes of individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153 (“Petitioner is clearly a member of the class which engages in‘extortionate credit transactions’ . . .” (emphasis deleted)).
The individual mandate’s regulation of the uninsured as a class is, in fact, particularly divorced from any link to existing commercial activity.

It says the mandate assumes a power to regulate based on a lack of activity, but the commerce power can only classify people based on being active in a market. Additionally,

The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. See, e.g., Consolidated Edison Co. v. NLRB, 305 U. S. 197 (1938) (regulating the labor practices of utility companies); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (prohibiting discrimination by hotel operators); Katzenbach v. McClung, 379 U. S. 294 (1964) (prohibiting discrimination by restaurant owners). But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases, including those cited by JUSTICE GINSBURG, post, at 20–21, involved preexisting economic activity. See, e.g., Wickard, 317
U. S., at 127–129 (producing wheat); Raich, supra, at 25 (growing marijuana).

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. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.

So the “everyone buys this eventually” argument does not win, either.

I won’t quote the part that addresses the gov’t’s efforts to call health insurance an exceptional case, because it takes up an entire page, but suffice to say, the gov’t rejected the “exceptional case” argument, meaning it addressed the effect of the Commerce Clause as a whole, and not only in this case.

The Schaef on June 28, 2012 at 4:43 PM

I was shocked at first but feel really energized now.

The power to decide is now in the hands of the American VOTER.

That’s the “power to the people” and it’s what the founders wanted.

There’s real poetic justice in this and I think in the long run it’s a win. Democrats now and in the future speak the truth about
taxes they want to access. It’s really not that bad. Government using the commerce clause for whatever they want is no longer an option.

Jocelyn on June 28, 2012 at 4:46 PM

I was shocked at first but feel really energized now.

The power to decide is now in the hands of the American VOTER.

That’s the “power to the people” and it’s what the founders wanted.

Jocelyn on June 28, 2012 at 4:46 PM

Not really. That’s why they didn’t create a democracy. They expected the Senate to be the deliberative body that would outlast the populist sentiments of the House. This is one reason why Senators were to be elected for longer terms than a Representative.

It is true, though, that the power rests in the people’s hands, and that is the power to invoke our right of nullification.

Dante on June 28, 2012 at 5:11 PM

Dante –

You’re right. The Senate was supposed to be a firewall against monstrosities like this.

Jocelyn on June 28, 2012 at 5:42 PM

The American I know and loved ceased to exist today. 5 unelected people find a law constitutional based on an arguement that was never made. I haven’t the wherewithal to leave the country and I’m not certain where I would go if I did so like millions of people through history I watch from the sidelines as my freedom and personal liberty are stripped from me.

Dante – Senators were supposed to be the firewall and they were never suppossed to be “elected” The senate was the federal representatives of the STATES and the house of the PEOPLE.

IMHO nothing short of returning to the constitutional roots will return this country the freedom that was taken away today.

How about we pass a law that says in the effort to protect society from criminals the purchase of a handgun and classes in it’s use are mandatory. This is completely justified as a “tax” needed to pay for protecting the civilian population from the criminal element.

It pains me to feel this way but right now I want CJ Roberts damned to hell. A rightous person would never have voted this way.

conservativecaveman on June 28, 2012 at 6:19 PM

“If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom — go from us in peace. We ask not your counsels or your arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that you were our countrymen.”

Samuel Adams

Resist We Much on June 28, 2012 at 6:24 PM

I’m listening to Mark Levin and he is explaining why this ruling is a disaster. I don’t know why Roberts did what he did, but from what Mark is explaining, I don’t think he did either. It wasn’t Constitutional.

I know there are some here on HA that think Roberts did the Country a favor and he was so smart. However, I fail to see it.

bluefox on June 28, 2012 at 6:52 PM

I see Lucy pulled the football on me yet again.

When will I ever learn?

Cleombrotus on June 28, 2012 at 7:04 PM

I see Lucy pulled the football on me yet again.

When will I ever learn?

Cleombrotus on June 28, 2012 at 7:04 PM

I feel so much sympathy now for Arizona. Why? They were reamed up the ying yang and I wasn’t feeling the pain. Now? I feel their pain.

athenadelphi on June 28, 2012 at 7:17 PM

Truly -
Is our recourse Pitchforks and Torches?

When will we go to the streets and execute our recourse?

Other societies have done this, usually leaving a dead elected “monarach” in the street.

gonnjos on June 28, 2012 at 7:45 PM

Now would be the time to start bringing suits against anything remotely appearing to be a stretch of the Commerce Clause.

claudius on June 28, 2012 at 8:07 PM

When I think of John Roberts, I really warm to Judas Iscariot.

sandbagger on June 28, 2012 at 8:14 PM

I have a hard time seeing it as a good thing that Roberts substituted an expansive tax power for an expansive Commerce Clause.

Imagine being robbed at gunpoint by someone holding a sawed-off shotgun. Then a policeman shows up and tells the robber, “That’s illegal!! Here, use my 9-mm Glock.”

Would you be grateful for his intervention?

tom on June 28, 2012 at 8:23 PM

Roberts will turn out to be worse than Earl Warren. You should never trust a SOB appointed by a RINO.

they lie on June 28, 2012 at 8:24 PM

U.S. Constitution 1789-2012 R.I.P.

Who is John Galt on June 28, 2012 at 8:25 PM

Doesn’t this manner of “upholding” ObamaCare automatically lead to new lawsuits?

Such as Equal Protection law suits for those given waivers?

And Equal Protection law suits for states that pay to set up a “health insurance exchange” while other states get to avoid it?

And a lawsuit that the ObamaCare tax was not submitted in the House as clearly required by the Constitution, and therefore is invalid?

I think among the other results of this bizarre ruling is that the whole ObamaCare issue was not settled, but thrown into bigger turmoil than ever.

tom on June 28, 2012 at 8:35 PM

I’m listening to Mark Levin and he is explaining why this ruling is a disaster. I don’t know why Roberts did what he did, but from what Mark is explaining, I don’t think he did either. It wasn’t Constitutional.

I know there are some here on HA that think Roberts did the Country a favor and he was so smart. However, I fail to see it.

bluefox on June 28, 2012 at 6:52 PM

You know the Alinsky rule which has to do with making your opponents live up to their own standards?

Do you believe GHWB’s “No new taxes” pledge ended up being a fatal albatross around his neck? Do you believe that 0bamessiah can easily run away from His emphatic insistence that 0bamacare was not a tax, if the GOP decides to unrelentingly attack Him using today’s decision as a weapon?

Note that I’m not asking you to accept that argument, only to think about it as a credible one…

Bizarro No. 1 on June 28, 2012 at 8:37 PM

U.S. Constitution 1789-2012 R.I.P.

Who is John Galt on June 28, 2012 at 8:25 PM

Do you have the map to Galt’s Gulch? I’m thinking about moving there.

Decoski on June 28, 2012 at 8:38 PM

You sad sacks already got your spin on. ITS A TAX! Hahahaahahahahahahahhahahaah. Unflappable jerks for the win.

That is not going to fly. Can you imagine the debates. He’s already ahead in every battleground state. Wait till peeps get a load of Willard on the stump. This is going to be an amazing summer. I’ll be driving around with the air on full blast since gas is so cheap! Hahahaa.

tommyhawk on June 28, 2012 at 11:02 AM

I might respond to this, if it were comprehensible.

tom on June 28, 2012 at 8:49 PM

I might respond to this, if it were comprehensible.

tom on June 28, 2012 at 8:49 PM

Do you believe 0bamessiah might sound as coherent as tommyhawk if He’s asked whether or not He agrees with Roberts that 0bamacare is a tax? That interchange would be a lot of fun for me to see! :)

Bizarro No. 1 on June 28, 2012 at 8:58 PM

Watching how defensive/obnoxious/evasive Juan Williams is being while responding to questions about 0bamacare’s relationship to taxation, this issue is not a difficult one to royally embarrass the Dems with! :)

Bizarro No. 1 on June 28, 2012 at 9:12 PM

Was the law legally implemented as a tax by Congress?

Philly on June 28, 2012 at 11:08 AM

Taxation (and all financial measures) must originate in the House. To pass Obamacare, the Senate took an existing bill passed by the House, gutted it and replaced the contents with Obamacare, then passed the law, the “shell” of which originated in the House.

de rigueur on June 28, 2012 at 11:10 AM

Sounds like grounds for a lawsuit….

tom on June 28, 2012 at 9:32 PM

The remedy for a bad law is to repeal it. That remedy is still available.

rockmom on June 28, 2012 at 1:13 PM

That remedy isn’t available if you must depend on the useless Republican Party to get it done.

I don’t know whose agenda the Republican Party follows, but there is little in their agenda that I want.

RJL on June 28, 2012 at 10:36 PM

bluefox on June 28, 2012 at 6:52 PM

You know the Alinsky rule which has to do with making your opponents live up to their own standards?

Do you believe GHWB’s “No new taxes” pledge ended up being a fatal albatross around his neck? Do you believe that 0bamessiah can easily run away from His emphatic insistence that 0bamacare was not a tax, if the GOP decides to unrelentingly attack Him using today’s decision as a weapon?

Note that I’m not asking you to accept that argument, only to think about it as a credible one…

Bizarro No. 1 on June 28, 2012 at 8:37 PM

Trying to catch up:-) Yes to #1 & #2. No to #3.
On #2, that no new taxes pledge harmed his re-election. #3-It doesn’t matter what B.O. does or how he answers this even if it’s used as an attack. What is important is what Roberts did today. He helped B.O. and said the Mandate is Constitutional as a Tax. No one ever said it was a tax. Where in the Constitution is the Tax Clause he found this “new” tax authority? The dissenting opinions had it right, he had it wrong.

bluefox on June 28, 2012 at 10:40 PM

Roberts is a total scumbag. I hope he get’s cancer and has to appear in front of a government dealth panel to get treatment. That would be justice!

Dollayo on June 29, 2012 at 12:45 AM

Mandate upheld: what now?

NOW we go vote for the biggest liberal supporter of the Individual Mandate because He Is Not 0bama!

See how stupid the voters are today!

America ALWAYS gets the government it DESERVES.

DannoJyd on June 29, 2012 at 4:08 AM

Supreme Court –Supreme Crap. Tomato. — tomotto

drfredc on July 1, 2012 at 10:14 AM

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