Green Room

Eyes on the ball, folks: SCOTUS has ruled Congress can make us buy stuff

posted at 5:47 pm on June 30, 2012 by

A surprising number of conservative commentators have come out cheering the ObamaCare decision because it ruled that the Commerce clause in the Constitution – Congress’s power to regulate commerce across the 50 states – doesn’t empower our legislators to force us to buy things (in this case, health insurance).

Of course, Congress can require those who propose to engage in regulated activities to purchase things, as a price of doing business.  But ObamaCare forces us to buy insurance just because we woke up one day and were citizens of the United States (and earning a certain income and not covered by insurance our employers have to buy).

The real decision

SCOTUS has said Congress can do that.  Focusing on SCOTUS’s repudiation of the Commerce- clause justification is pursuing a gigantic red herring.  Who cares what the Commerce clause allows, if SCOTUS says Congress can make us buy stuff anyway?

The Commerce clause has been made irrelevant by this ruling.  Chief Justice Roberts found another way to justify Congress making us buy stuff.  No one will ever have to invoke the Commerce clause again to propose a law that makes us buy stuff.  Regardless of what stuff we have to buy today, any Congress in the future can make us buy other stuff.  All Congress has to do is impose a monetary penalty if we don’t buy the mandated stuff, and SCOTUS will call it a “tax.”

The victory for the Commerce clause is the Pyrrhic one here.  Another such victory, and we are lost.

Tax versus mandate

A purchase mandate and a tax are two different things.  It seems silly to have to lay this out, but apparently there are a lot of people who are confused.  What distinguishes a tax from all other requirements is that its first-order effect is producing revenue for the government – not because the citizens engage in any particular activity, but because the government needs revenue, and chooses one or another basis for levying a tax to produce it.  To gain tax revenue, the government surveys what the citizens do and chooses to tax some of it.  A tax is not something that arises from government-mandated activity, nor is it levied because of what people choose to do.  You may choose to buy milk and have to pay a sales tax on it (in some states), but the tax isn’t imposed because you buy milk, it’s imposed because the state or local government needs revenue.

There are other ways – non-tax ways – in which we send money to the government for various things.  We pay fees, for example, to operate businesses or get driver’s licenses.  We pay speeding fines.  We buy hunting licenses.  We pay fees to register private vehicles and boats.  We get fined for particular transgressions, such as littering or polluting.  All of these ways of handing money over to the government are contingent on us choosing to do something.  If we don’t choose to do it, we don’t fork over money to the government.

Taxes are a different matter.  Their existence doesn’t depend on us wanting to “do” things, or doing wrong things, for which a fine is imposed; they exist because government needs revenue.  Taxing income, sales, cigarettes, liquor, gasoline, property, etc is intended to produce revenue, on a regular and somewhat predictable basis.

The purpose of the ObamaCare insurance-purchase mandate is not to produce revenue for the government.  It is not a tax, by any valid definition of “tax.”  It doesn’t tax sales.  It doesn’t tax goods.  It doesn’t tax income.  It doesn’t tax property.  It doesn’t tax activity (e.g., federal taxes on commercial airline flights or landline services).  It mandates that certain citizens buy something from commercial vendors, and it fines them if they don’t.  In that way, its closest analogue is the requirement of the various states that drivers maintain auto insurance.  That’s not a tax, and has never been held to be one.  And even that analogue is imperfect, since no one who doesn’t own a vehicle has to maintain the insurance.

I really wish Republicans would stop cynically chanting that Obama has broken his pledge on taxes with the ObamaCare legislation.  (And for the Republicans doing it foolishly, because they don’t understand or care that there is a significant difference in law and our philosophy of government between a tax and a purchase mandate:  you guys stop it too.)  This battle can’t be won if we concede that any old way of being ordered to send money somewhere at the government’s direction equals a “tax.”

Get this if you get nothing else

Understand this:  it doesn’t matter if ObamaCare is repealed next year.  Repeat as necessary until understood.  The SCOTUS ruling is on the books.  Congress can make you buy anything, as long as it fines you if you don’t.  The concept of constitutional limits on the power of government has been effectively removed from our guiding idea of law and jurisprudence.

As the vice president would say, this is indeed a big effing deal.  We have reached the end of the quiescent consensus on which we conducted most of the 20th century:  the consensus by which we tacitly agreed that the encroachments of government – with big surges under Wilson, FDR, LBJ, and Nixon – weren’t a menace to constitutional protections for our liberty and rights.  The consensus was that we had those protections, and could therefore afford to hover at the precipice in the certainty that nothing could push us over it.

But now something has.  If we abide by our judicial tradition, this SCOTUS ruling will govern the rulings of the future.  Congress has been accorded a colossal power.  All it has to do to use it is impose a fine if we don’t buy whatever Congress says we have to.

What we will have to think about

Here are some questions we will have to grapple with.  What is our view of jurisprudence?  In the 19th century, Americans did not see judges as infallible, or the courts as the sole and final arbiters of what the law means, as if Congress just dispatched some monkeys to produce our laws on a bank of typewriters, and we had to wait for the Supreme Court to organize the unintelligible mess for us and tell us what it meant.  SCOTUS was never intended to be a Delphic oracle.  We have come to treat it as one, however, and now it has handed down a ruling that will destroy our concept of natural rights and limited government.  What are we to do about that?

Can we discipline ourselves to speak as if words have meaning, and the content of the law matters?  Republicans have behaved just like Democrats by immediately jumping on the “Obama broke his promise on taxes” bandwagon.  In this instance, he didn’t break his promise on taxes.  He and Congress imposed a mandate that violates the American principles of limited, constitutional government.  That’s not a broken promise; it’s a bad use of the executive and legislative power.  Call it what it is, not what seems convenient for campaign sloganeering.

Words and concepts matter.  There is no accountability, for government or anyone else, if they don’t.  Can we come to grips with the damage we do by letting the sentimental, imprecise use of words become our form of governance?

The biggest question we have to answer for ourselves is whether we really believe in limited government.  If we do, how do we approach our current problem?  Our national tradition over the last 100 years gives us no solution.  By that tradition, we are required to abide by a SCOTUS ruling that makes the character of Congress the only thing standing between us and a fatal expansion of government power.  (David Brooks lauded that outcome very specifically on Thursday.)  In other words, we have become ancient Athens.

The Framers didn’t mean for that to be the case.  They wrote limits on power, separation of powers, and checks and balances into the Constitution precisely so that the character of the legislature (or indeed, the character of the other two branches, in their separate capacities) would not be the sole determinant of everything that happened to us.  They took as their example of legislative bodies run amok the ancient Athenians, and intended – with great and sincere determination – to prevent transient legislative majorities from bankrupting and destroying the new nation.

Do we now have any remaining feel for that purpose, in our consciences as Americans?  Do we no longer agree with the proposition of constitutional limits?  Is John Roberts, born in 1955 – and therefore educated starting in the 1960s and the years afterward – an example of what the American feel for constitutionalism now is?

Where do we go from here?

Suppose we do have a better feel for it than the Chief Justice.  What is the way to proceed, to invalidate the SCOTUS ruling on ObamaCare?  This is an important question, and there are drawbacks with either of the most likely methods.

One is for the Supreme Court to rule differently on a case trying similar issues in the future.  This method would have the virtue of leaving the judiciary to correct itself.  But it would also be likely to involve issues that are not perfectly identical or even analogous, which would make application of the ruling uncertain.  If the judiciary behaves the way it usually has, correcting the ObamaCare ruling for any useful purpose would be a lengthy process requiring a number of separate rulings on related matters over time.

We should not despair of a different Supreme Court ruling differently on the same matter in the future.  Supreme Courts throwing out precedent – e.g., on the interpretation of the 9th and 10th amendments – is how we got to where we are today.  It can happen.  But it’s a big philosophical question whether that’s the best way to correct the ObamaCare ruling.  The judiciary has not, over time, been nearly as unified and single-trending as today’s shallow education leads Americans to think, but there has nevertheless been a certain coherence to the body of jurisprudence, even where many Americans continued to disagree with specific rulings.  A spectacular reversal might be popular, but what would it say about the integrity of our idea of law?

I’m not enamored of that possibility, but there are issues with a constitutional amendment as well.  As big an undertaking as it is, I see an amendment as the quickest and most effective way to clarify that Congress does not have the power to levy a purchase mandate of the kind embedded in ObamaCare.  Probably the biggest drawback with an amendment is the precedent it would set for adding such clarifications to the Constitution.  How many would we end up needing, to fend off all the federal mandates that may creep up on us?  A prohibition on a purchase mandate seems very general, but there’s no telling how many permutations of a sort-of-almost-not-quite purchase mandate Congress could come up with, to get around the amendment – and the people would still have to funnel money by mandate to Congress’s chosen goods or services.

That said, an amendment may be the way to go.  I am quite sympathetic with those who don’t want to just keep adding to the Constitution, but we have added very little to it in the much-changed political environment of the last 80 years.  The Constitution was written in a world in which many of the things people want to do with government today were unimaginable.  Those things have now been imagined, and it may in fact be time to update the Constitution.  That’s what we did with the 13th, 14th, and 15th amendments:  update the Constitution to reflect our national posture on emerging developments.  The 14th amendment may have been abused in the 20th century, but it was good law, in my view, clarifying the minimum that it meant to apply the law equally in a land of former slaves.  The Civil War amendments were added because big things had changed.

Big things have certainly changed in the last 80 years, and the chief result of legislation and jurisprudence has been ignoring or finessing the Constitution’s limits on government.  My preference for updating the Constitution involves affirming limits on government – in particular, the federal government – in the context of modern ideas about using it for absolutely everything.

I am not sure that a single amendment, or two or three, would accomplish everything that is needed.  I’ve been thinking about a private citizens’ “constitutional convention” for a number of years now:  a convention to approve and propose a small set of amendments to the US Constitution.  The idea would be to get legislators and presidential candidates to endorse the proposal, and a critical mass of them to push it in Congress, and perhaps prompt another official constitutional convention, which would adopt them.  (I believe others are thinking about this as well.  Please chime in if I haven’t mentioned your effort.)

Obviously this concept could have dangers with it, but it resonates with me because of my sense that we can’t keep going down the same path and hope for a course correction.  Leaving Congress to focus on thousands of minute regulations, with executive agencies doing basically whatever they want, and with the media picking over all the proposals and screaming bloody murder about some while hailing the Second Coming as regards others, isn’t working for us.  We need to get law and government, and our idea of law and government, back onto a more accountable footing.

No one will do this for us.  Those who take up the challenge will be called names and railed against, no matter how lawfully and peacefully we go about it.  We can expect the shrillest and most vituperative of opposition.  I have offered one suggestion, but I firmly believe that many heads produce wiser counsel, and I would very much like to hear other suggestions as well.  Working, initially, outside of the regime of politics – Democrats, Republicans, sentiment, cynicism, vote-getting and horse-trading – is essential if we are to have integrity in definitions and prescriptions.  The process must be about limiting government, and how to do it.  But ultimately, the point is to garner political support for an updated American affirmation of limits on government.

There are undoubtedly multiple ways to go about this.  But there is only one thing that will give us the time to embark on it, and that is defeating Obama at the polls in November.

J.E. Dyer’s articles have appeared at The Green Room, Commentary’s “contentions,Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.

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I very much agree. But as devil’s advocate:

Roberts found that this penalty functions as a tax. It’s collected by the IRS and is “triggered by specific circumstances” if not exactly a tax on an “event.” As you say, the purpose of a tax is simply to raise revenue. Why not simply raise revenue from people when there is a confluence of factors? Must the Court read it as a penalty? Roberts noted twice, that the statute “need not be read” so as to be unconstitutional, so he did not. So ultimately, why limit the government’s power to raise revenue if no such general limitation on tax powers has heretofore been found?

As I said, I agree with you. I think Richard Epstein, writing in the NYT and elsewhere is also correct in saying it doesn’t make sense to separate the power of taxation from the power to regulate interstate commerce. But the above critique is the natural response from the left to what you’ve written. Thank you.

For, hopefully, people’s amusement:
http://www.youtube.com/watch?v=wTypjaozPMM&feature=plcp

Crispian on June 30, 2012 at 6:11 PM

In Roberts’s argument that the mandate exceeded the limits of the Commerce clause, he was speaking for himself and not “For The Court” so it can’t be used as precedent.

But if the other judges had entered into his argument it still wouldn’t matter. Who can imagine a Democrat congress limiting the scope of legislation because of this type of ruling?

They will keep expanding the commerce clause whenever they have the votes. They will get away with it, every time, unless someone can fight it all the way up to the Supreme Court again.

halfbaked on June 30, 2012 at 6:55 PM

Does Roberts have any idea how stupid his ruling looks to most of America, or is he just banking on staying inside the Washington/New York/Boston cocktail party circuit from now on?

RoadRunner on June 30, 2012 at 7:11 PM

JED, could you parse this for me/us? I keep reading it looking for something to salvage from the decision.

This is why: Roberts does not say that the government may now regulate anything it likes by calling the regulation a tax. He says this mandate can be read as a tax in these circumstances — that is, in light of the fact that it would be unconstitutional on any other ground and the court is supposed to avoid finding statutes unconstitutional if it can — and on these grounds: because it is administered by the IRS through the tax code and operates in many respects like a normal tax. Only if future regulatory schemes can meet all these criteria would they be valid under the taxing power. Yet Roberts does not give a single example of any such scheme — and we know for a fact, because they have told us repeatedly, that members of Congress would never have voted for this regulation if they had believed it was a tax.

http://dailycaller.com/2012/06/28/john-roberts-surprising-decision/

marinetbryant on June 30, 2012 at 7:12 PM

Look, it all boils down to this, folks:

They can make us buy/do/say anything – only if we let ‘em.

The real question raised by all this kerfuffle is – how far can they push the citizens until the bulk of said citizens utilize the 2nd Amendment?

Hoping it’s not in my lifetime but it may well be.

RedNewEnglander on June 30, 2012 at 7:41 PM

All I have to say is; over my dead body!
I will not buy their insurance, I will not pay a tax, I will not buy a D*** electric car. It will not happen.
Live free or die.

odannyboy on June 30, 2012 at 7:43 PM

Why the jimmy-gee-wiz is this still in the Green Room?

Axe on June 30, 2012 at 8:16 PM

Who cares what the Commerce clause allows, if SCOTUS says Congress can make us buy stuff anyway?

Roberts took out his two headed coin, called tails, and flipped it. The socialists won.

But he thinks he outsmarted them.

The problem with very intelligent smart people like Roberts is that sometimes they over think and over analyze and outsmart themselves, especially when they are faced with and afraid of making an obvious but bold and decisive decision. To avoid criticism they try to be too clever.

But it seems the only criticism Roberts was concerned about was what would come from the left. Apparently he shrugged off the criticism that would come from the right.

Another possibility is he actually likes much of Obamacare in principle, if only they had formulated the mandate as a tax. He fixed that flaw himself.

farsighted on June 30, 2012 at 8:31 PM

Why the jimmy-gee-wiz is this still in the Green Room?

Axe on June 30, 2012 at 8:16 PM

It doesn’t sing the praises of Roberts the Brilliant Strategist?

It is considered 11th grade level analysis?

farsighted on June 30, 2012 at 8:34 PM

Roberts affirms that not only is using the the power of taxation to do social engineering a very good thing, he unshackles Congress and encourages them to do more and be creative about it, by providing an example.

farsighted on June 30, 2012 at 8:38 PM

It is considered 11th grade level analysis?

farsighted on June 30, 2012 at 8:34 PM

lol — then someone should copy and paste Yoo making the same points. :) And not in the WSJ green room, either.

All right; letting it go.

Axe on June 30, 2012 at 8:51 PM

Don’t know if this would pass muster, but it’s a suggestion:

http://teresainfortworth.wordpress.com/2012/06/30/proposed-a-new-amendment-to-the-constitution/

TeresainFortWorth on June 30, 2012 at 8:57 PM

Sorry – should have included this with my comment:

“No branch of Government may compel any Citizen to participate in Commerce, nor may any Citizen be penalized or taxed for choosing not to participate in Commerce.”

That’s my humble submission for a new Constitutional Amendment.

http://teresainfortworth.wordpress.com/2012/06/30/proposed-a-new-amendment-to-the-constitution/

TeresainFortWorth on June 30, 2012 at 8:58 PM

If you like that one, since it’s only 27 words and would be the 28th Amendment, use the hashtag #27for28 on Twitter.

Like I said, it’s just a suggestion, but I think that something that is “non-controversial” like that might be fairly easy to get members of Congress to sign on to.

I mean, would YOU want to be the congresscritter who said that you disagreed with the concept that a citizen SHOULDN’T have to pay a tax just for existing?

TeresainFortWorth on June 30, 2012 at 9:03 PM

halfbaked, I disagree about the Commerce Clause as precedent. There were 5 justices who took the position against the Commerce Clause. Roberts was quite clear that it was only by not clearing that hurdle would he seek some other possible (and according to him, less natural) reading.

Put another way, he said a mandate is not constitutional. 5 members of the Court said a mandate is not constitutional. He could only uphold the mandate, such as it is, by READING it as a tax, which he found merely possible. In justifying it as a tax – and not a penalty which would be unconstitutional as such – he held that a tax is different in nature as there is a choice whether or not to pay and is not simply a means (among possible others) of punishment.

If Congress passes a law putting people in jail for not buying insurance, that cannot be read as “tax” and would fail the analysis offered by Roberts.

Crispian on June 30, 2012 at 9:17 PM

marinetbryant on June 30, 2012 at 7:12 PM

Marinetbryant, the operative sentence is this one:

“Only if future regulatory schemes can meet all these criteria would they be valid under the taxing power.”

The “only” is a deceptive qualifier; Congress can write 300 laws tomorrow that meet all the criteria Roberts used to classify the Obamacare mandate as a form of “tax.”

It is shortsighted to the point of foolishness to imagine that Democrats won’t use the power now conferred on Congress in just that way. The real question, now that the Obamacare mandate has been certified as a “tax,” is why the Democrats — and many of the usual RINO suspects — wouldn’t do so.

If Congress passes a law putting people in jail for not buying insurance, that cannot be read as “tax” and would fail the analysis offered by Roberts.

Crispian on June 30, 2012 at 9:17 PM

But Congress doesn’t want to put people in jail. It wants to force people to buy “health insurance,” and make money off any people who decline to. What is going to stop the next Democrat-controlled Congress from doing that with any purchasable thing that occurs to it? Please be specific.

J.E. Dyer on June 30, 2012 at 9:30 PM

Incidentally, although it’s sad that so many pundits seem to live in “progressivism capture” now, and can’t see outside the box of the 20th century’s memes-n-themes about government, it is very heartening that so many of the “rank and file” commenters at the conservative websites can engage in very robust and intelligent argument on this topic.

J.E. Dyer on June 30, 2012 at 9:41 PM

TeresainFortWorth — interesting proposal. I hope everyone takes a look at it. This process needs a kick-start. Maybe the Koch brothers can fund a prize for the best amendment proposal on the most important topics.

J.E. Dyer on June 30, 2012 at 9:43 PM

Crispian on June 30, 2012 at 9:17 PM

One problem. There is no precedent binding actual vote declaring the mandate in violation of the Constitution.

Roberts tried but he cannot have it both ways. It is still an open issue. Lower courts are not legally bound by the decision, nor are future Supreme Courts.

The same is true of his assertion the Obamacare mandate is a tax. The four lib justices do not agree, and he voted with them.

CJ Roberts is not a dictator. He cannot rewrite legislation, pick and choose among opinions, selecting this part and rejecting that part, and make his own personal synthesis the law of the land. He can try, but no one is legally bound by it.

farsighted on June 30, 2012 at 9:54 PM

farsighted on June 30, 2012 at 9:54 PM

I think you have a good point on the issue of the mandate not having been bindingly ruled to be beyond the Commerce power.

That said, however, the practice of government in the US has become almost bizarrely tolerant of off-the-wall precedents, Roe v. Wade being one of the best examples, but by no means the only one. It is unlikely that an administration will attempt to defend an individual mandate again using the Commerce clause. Why would it? Just design the mandate the same way as the Obamacare mandate, and the precedent will be there for interpreting it as a “tax.”

In any case, I agree with your points about the quality of hte jurisprudence here.

J.E. Dyer on June 30, 2012 at 10:02 PM

J.E. Dyer on June 30, 2012 at 10:02 PM

“It’s down to the people now — as it should be. But, meanwhile, a little less deference to judges wouldn’t go amiss. The U.S. Supreme Court is starting to look like Britain’s National Health Service — you wait two years to get in, and then they tell you there’s nothing wrong. And you can’t get a second opinion.”

Steyn. :)

Axe on June 30, 2012 at 10:09 PM

It is unlikely that an administration will attempt to defend an individual mandate again using the Commerce clause. Why would it? Just design the mandate the same way as the Obamacare mandate, and the precedent will be there for interpreting it as a “tax.”

J.E. Dyer on June 30, 2012 at 10:02 PM

Roberts declared that the Obamacare mandate penalty is actually a tax.

I don’t think any other justice explicitly agreed with him about that.

If future admins decide to argue their mandate is a tax they can point to Roberts’ decision. However, I suspect future justices, and even current justices, are not bound to honor that assertion.

I doubt Scalia, Alito, or Thomas would. Kennedy is always a wild card. Whether or not Ginsburg, Kagan, Souter, and Sotomayor would would depend on the specifics of the case.

Seems Roberts assertion that a mandate is a tax is still an open issue. But the argument that a mandate is a tax would probably be the first argument next time, rather than the third as it was this time. A Commerce Clause argument would be second or third.

farsighted on June 30, 2012 at 10:46 PM

As big an undertaking as it is, I see an amendment as the quickest and most effective way to clarify that Congress does not have the power to levy a purchase mandate of the kind embedded in ObamaCare.

Thank you, thank you, THANK YOU!!!! I’ve been saying this since the day the ruling came down, that we need an amendment to close the Roberts loophole (that’s what I’d call it, and I’d call the amendment something like the Roberts Amendment). That’s the only way to plug up this huge hole once and for all.

Finally, a blogger with a reach greater than mine has posted it, thanks again. I hope the idea catches on and spreads. Repealing Obamacare only solves the short term problem that this ruling left us with, the long term problems is the Roberts loophole, and that needs to be sealed off, stat.

thirteen28 on July 1, 2012 at 12:03 AM

TeresainFortWorth on June 30, 2012 at 8:58 PM

Bravo, very well done! Hope the idea spreads.

thirteen28 on July 1, 2012 at 12:13 AM

What this means is that, for both Republicans and Democrats, Liberals and Conservatives, the best deterrent to possible new coercive law and taxes is divided government, i.e. gridlock. Repeal Obamacare, don’t replace it, and always, ALWAYS, focus on Congress and the White House are held by opposing parties.

Jurisprudence on July 1, 2012 at 2:32 AM

Well FINE! So be it.

Now HANG THIS TAX AROUND THE DEMOCRATS’ NECKS AND MAKE THEM WEAR IT!

mountainaires on July 1, 2012 at 6:33 AM

Excellent, JED! First rate.

Understand this: it doesn’t matter if ObamaCare is repealed next year. Repeat as necessary until understood. The SCOTUS ruling is on the books. Congress can make you buy anything, as long as it fines you if you don’t. The concept of constitutional limits on the power of government has been effectively removed from our guiding idea of law and jurisprudence.

Unwittingly or not, Roberts has done enormous damage to the Republic, and the path to restoration is anything but clear.
I find it quite depressing.

petefrt on July 1, 2012 at 6:45 AM

In Roberts’s argument that the mandate exceeded the limits of the Commerce clause, he was speaking for himself and not “For The Court” so it can’t be used as precedent.

halfbaked on June 30, 2012 at 6:55 PM

I agree with you and Mark Levin; Roberts’ comments about the Commerce Clause were dicta, not a holding, and dicta is not precedent. Hence the Roberts opinion will have little, if any effect on future applications of the Commerce Clause.


Mark Levin: Not-So-Fast on Commerce Clause

petefrt on July 1, 2012 at 7:00 AM

Seems Roberts assertion that a mandate is a tax is still an open issue. But the argument that a mandate is a tax would probably be the first argument next time, rather than the third as it was this time. A Commerce Clause argument would be second or third.

farsighted on June 30, 2012 at 10:46 PM

Roberts’ great accomplishment now is that at oral argument, future arguments will be made in a different order. That’s quite a lofty achievement in comparison to throwing away 236 years of liberty.

Difficultas_Est_Imperium on July 1, 2012 at 9:41 AM

“No branch of Government may compel any Citizen to participate in Commerce, nor may any Citizen be penalized or taxed for choosing not to participate in Commerce.”

TeresainFortWorth on June 30, 2012 at 8:58 PM

I like it. In today’s day and age, however, the first thing that comes to mind is “the right to bear arms”, “well regulated militia”, etc, and both how clear the 2nd amendment is and how intentionally vague the left tries to construe it.

Perhaps a overly clear definition of ‘commerce’ and what it is/isn’t would be a nice addition?

Midas on July 1, 2012 at 10:40 AM

You will be taxed for much more…like global warming and other things.

tomas on July 1, 2012 at 10:49 AM

It is shortsighted to the point of foolishness to imagine that Democrats won’t use the power now conferred on Congress in just that way.

J.E. Dyer on June 30, 2012 at 9:30 PM

This is the other distressing point of the fiasco.

The Supreme Court gives Congress powers?

Not according to my copy of the Constitution.

Peri Winkle on July 1, 2012 at 11:31 AM

It seems that as long as the SCOTUS twists and mangles the plain language words of the Constitution, it matters not what amendments are added. They will find a way (pretzel logic, of course) to get from point A to point B, regardless of what the Constitution says.

These last few days have made that abundantly clear.

I’d like to see an amendment that allows for a process to facilitate the recall of incompetent Justices who blatantly defy the Constitution. It would necessarily need to be a very high bar to reach, but there needs to be some recourse. I’m just spitballing here; perhaps a 70% majority in a popular vote would suffice. I haven’t really thought about this until now, so the process to instigate the recall vote isn’t clear; a certain percentage of petition signatures from x number of states would be one option.

There’s got to be something better than the status quo.

hillbillyjim on July 1, 2012 at 12:46 PM

JE, well done. As have the commenters in response. We’ll see what happens as this issue percolates. I think we’re overdue an amendment or two as well as the repeal of the 17th.

AH_C on July 1, 2012 at 2:04 PM

We are already taxed more if we do not get married. We are taxed more if we do not have children. We are taxed more if we do not have a mortgage on our house. If we have no children, or we send our children to private school or homeschool, we still pay school taxes.

The idea that this is the very first time government has ever taxed us more for not doing something is ludicrous.

rockmom on July 1, 2012 at 2:44 PM

If Congress passes a law putting people in jail for not buying insurance, that cannot be read as “tax” and would fail the analysis offered by Roberts.

Crispian on June 30, 2012 at 9:17 PM

So can you go to jail for not paying the tax levied against you for not buying insurance. Of course! It’s called tax evasion. See how easy it is to twist the law to get your “fail”…

dominigan on July 2, 2012 at 1:57 AM

“No branch of Government may compel any Citizen to participate in Commerce, nor may any Citizen be penalized or taxed for choosing not to participate in Commerce.”

That’s my humble submission for a new Constitutional Amendment.

http://teresainfortworth.wordpress.com/2012/06/30/proposed-a-new-amendment-to-the-constitution/

TeresainFortWorth on June 30, 2012 at 8:58 PM

I like it. But I think more is needed. I also propose repealing the 16th and 17th Amendments. The Federal Government has grown out of control because it was given the power to go after citizens directly instead of through the States.

The way the government used to work was that the House represented the “wish list” of the people. But since funding for new endeavors was divided up and sent to the states as a bill, the Senate acted as the brakes since it was made up of Senators selected by the State legislature.

We must never forget the larger problem of how this leviathan came to be. The only way to truly reign in the Federal Government is to take back the sources of revenue and return them to the states. In that way, it is easier to track and restrict encroachments on our liberty.

dominigan on July 2, 2012 at 2:09 AM

This author GETS IT.
The ruling would more accurately be called
The John Roberts Enabling Act of 1933 2012
(ref.: http://en.wikipedia.org/wiki/Enabling_Act_of_1933).

MORE anathema to our Constitution is that Robert’s Law of Coersion equates taxing inactivity/non-choice with activity/choice.

THAT is Kafka WRIT LARGE.

Czar of Defenestration on July 2, 2012 at 6:32 AM

We are already taxed more if we do not get married. We are taxed more if we do not have children. We are taxed more if we do not have a mortgage on our house. If we have no children, or we send our children to private school or homeschool, we still pay school taxes.

The idea that this is the very first time government has ever taxed us more for not doing something is ludicrous.

rockmom on July 1, 2012 at 2:44 PM

No, it isn’t ludicrous. Everything you mentioned is either a state function, or a reward FOR doing something. You’re not taxed more for not having kids, you get to deduct from your reported income for kids. You get to deduct mortgage interest to encourage home ownership, but I don’t get a penalty for not having a mortgage.

In neither of those cases I just mentioned does the government say “have a child, or pay more in taxes,” or “buy a house or pay more in taxes.” If I CHOOSE not to have a child or buy a house, I’m CHOOSING to not have my taxes lowered for very expensive things. In no way do the deductions come close covering the cost of children or home ownership.

The property tax is state and local, and not a federal issue. There is also a strong case for these state and local entities that an educated community is good for all who live in them, therefore all benefit. Property taxes are also for many other government functions, like fire, police, etc. So if it makes you feel better if you have no kids and pay property tax, think of it going there . . .

The difference with Obamatax is this: Rather than rewarding you for a choice, it increases your taxes for not giving money to a private entity.

This is the heart of it and the biggest area JR’s opinion falls short: What would a mandate look like?

As I see it, there are two ways the government can FORCE you to do something:

1) Charge you a fine for not doing what they want (they can call it a tax, penalty or fine, it’s ALL THE SAME, a financial penalty). They often make the second way below a punishement for not paying.

2) They can imprison you.

What John Roberts just stated is that the first way of making you do something is perfectly valid. He gave the federal government permission to say you MUST do something or pay a tax.

Let’s go back to the child income deduction. Right now, if you choose to have a child the government gives you some credit against your income. Let’s face it, children make it harder to pay your taxes because they cost money. But government also has an interest in seeing our population grow.

Now let’s say Democrats decide the only way to save Social Security, for instance, is to increase our population, beginning now, so that in twenty years more people will be working to support it. Now they pass a bill that says that every woman must have at least 4 children by age 30 or be subject to a “social security penalty”, because their refusal to have enough kids is affecting the cost of social security on everybody else.

That’s the difference between encouraging and coercing.

It’s the difference between “if you clean your room I’ll give you ice cream” and “if you don’t clean your room I’ll spank you”. You have a choice either way, but one is coercive.

PastorJon on July 2, 2012 at 1:52 PM

Basically Roberts has ruled the federal government can make you buy something under threat of prison. You can pay the fine (tax) to stay out of prison, or pay money to a private company for more insurance than you probably need, but in the end you have no choice – pay the insurance company, pay the IRS, or go to prison. He has given the IRS another level of power, and Congress the power to weild it.

PastorJon on July 2, 2012 at 2:01 PM

TeresainFortWorth on June 30, 2012 at 8:57 PM

Just now reading this article. I think your suggestion is great!! Brief and to the point. Like your website and the info on it too.

bluefox on July 3, 2012 at 2:17 PM

Thanks for a well thought out article J.E. on this complicated issue. You’ve hit the points of what has been done with his ruling and possible solutions. All good as we ponder what to do next.

Yes, this needs to go front page!!!

bluefox on July 3, 2012 at 2:20 PM