Free Markets, Free People
George Will has a column out today declaring that conservatism won “a substantial victory” yesterday:
Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.
I’m sorry, I’m just not feeling it. What part of the “tax” isn’t “pregnant with rampant statism”? Why did John Roberts feel compelled to save the mandate by helping the administration identify it as a tax?
And more importantly, since when did taxation go from simply being a means for funding the functions of government to a means of incentivizing/controlling behavior? To me that’s what approving the mandate as a tax has sanctioned. We make fun of the nannies who want to control what we do, eat, say, etc. This precedent just sanctioned a method of doing so. It says it is okay to coerce desired behavior through taxation.
Perhaps, as Will opines, it will limit the Commerce clause which is already insanely overstretched in application. Maybe it finally does draw a much brighter line around the clause, at least marginally.
However, the downside is worse than any upside. The ruling essentially sanctioned the state’s requirement to purchase health insurance and gave it the okay to “tax” those who don’t comply. I’m sorry, you may want to play the word game with them and call it a tax, but it is clearly identifiable to me as a penalty.
That’s just wrong.
One of the more interesting ironies is that within the same ruling the Court found that the Federal government was being coercive toward the states by requiring they comply with the new Medicaid mandates or lose their current Medicaid funding.
How is that anymore coercive than the “tax” required to be paid if an individual decides not to purchase health care insurance?
Taxation as a mechanism of control and/or enforcement of desired behavior is as coercive as the part on Medicaid which was struck down by the court. At least in my opinion.
There may indeed be a silver lining in the ruling as Will outlines. But a “substantial victory”? It sounds like David Axlerod trying to spin the Wisconsin results as a huge win for Obama and trouble for Romney, doesn’t it? If this was a “substantial victory”, then so was Pearl Harbor.
Commerce clause idiocy– deciding not to act same as acting, thus can be regulated and action mandated (ObamaCare ruling)
Another federal judge has found for the Constitutionality of the individual mandate. But if ever you’ve wondered what tortured logic looks like (made in an effort to justify something that just doesn’t fit) then you’ll be amazed to read the following from the ruling:
As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality. [emphasis added]
Our thoughts are now actions. There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.
Excuse me while I sit down and ponder all of that for a moment. Anytime you make a choice not to act you are "acting". Therefore, the court has now decided, any decision to not to act (related to commerce) is an act and you can be therefore required to do what the government says you must do.
Or, more succinctly, you have no real choice regardless of what you decide, so sayeth the court.
If I decide not to buy a car, I’m acting, and if the government wanted to require me to buy a car, under this ruling, it could.
That’s just absurd (but Government Motors will most likely be putting together a heck of a lobbying effort to carry this ruling out to its logical end).
Oh and borrowing again from Jacobson, a little reminder of where all this “legal thought” is supposedly grounded:
The Congress shall have power…. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
Having made it up as they go, the Obama administration is now arguing that the mandate to buy insurance coverage under Obamacare is a perfectly legal tax.
That, of course, after the President denied it was a tax in order to sell it:
“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”
When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”
You can tell he was a constitutional expert when he taught, can’t you?
So much so that the Department of Justice, in a brief defending the law, claims it to be a "valid exercise of the Congressional power to impose taxes:
Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.
Except Congress doesn’t argue that at all. Instead it relies on the Commerce Clause as its justification for the mandate:
Congress anticipated a constitutional challenge to the individual mandate. Accordingly, the law includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority.
And then, per the White House, if any additional authority is needed – other than the power to define and then levy taxes (Congress) or the commerce clause, why just consult the General Welfare Clause. They have more Constitutional ways to make you buy something you may not want than you can imagine:
“The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law,” Mr. Pfeiffer said. “To the extent that there is any question of additional authority — and we don’t believe there is — it would be available through the General Welfare Clause.”
One has to assume they just plan on overwhelming the Court with as many “viable alternatives” as it takes to get their way.
One Yale professor says the tax argument – the one Mr. Obama denied – is the strongest argument:
Jack M. Balkin, a professor at Yale Law School who supports the new law, said, “The tax argument is the strongest argument for upholding” the individual-coverage requirement.
Mr. Obama “has not been honest with the American people about the nature of this bill,” Mr. Balkin said last month at a meeting of the American Constitution Society, a progressive legal organization. “This bill is a tax. Because it’s a tax, it’s completely constitutional.”
Smoke, mirrors, deceit and debt. That’s what you get for trusting a snake-oil salesman with your health care. Oh and this:
“This is the first time that Congress has ever ordered Americans to use their own money to purchase a particular good or service,” said Senator Orrin G. Hatch, Republican of Utah.
If this survives the court challenge, it won’t be the last – trust me on that.
The irony, of course, is the Constitution was written to limit government and keep it off our back. Instead it is now being used to expand government and intrude more and more deeply in our lives.
And that may be exactly what will happen when, inevitably, much of the law and regulation pushed by the Obama administration and passed by the Democratic Congress are challenged in court – a poor tactical choice may come back to haunt the administration.
You probably remember the incident. I remember remarking at the time that such a public embarrassment could come back to haunt Obama. And that may end up being the case:
But the year’s most important moment may have come on the January evening when the justices gathered at the Capitol for President Obama’s State of the Union address.
They had no warning about what was coming.
Obama and his advisors had weighed how to respond to the court’s ruling the week before, which gave corporations the same free-spending rights as ordinary Americans. They saw the ruling as a rash, radical move to tilt the political system toward big business as they coped with the fallout from the Wall Street collapse.
Some advisors counseled caution, but the president opted to criticize the conservative justices in the uncomfortable spotlight of national television as Senate Democrats roared their approval.
Chief Justice John G. Roberts Jr. is still angered by what he saw as a highly partisan insult to the independent judiciary. The incident put a public spotlight on the deep divide between the Obama White House and the Roberts court, one that could have a profound effect in the years ahead.
A public challenging of the integrity and independence of the court was more than a rookie mistake. It was dumb politics. It was an unforced error by Obama that may indeed have “profound effect” on the court’s rulings.
The court may have had to sit there and take it at the time, but once back in their seat of power, it is they who are all powerful and can wreak havoc on the administration’s regulation regime and legislation.
That’s not to say the conservative side of the court will intentionally go after the administration’s agenda items – damn the law- but it may mean that they cut the administration no slack whatsoever and commit themselves to very strict interpretations of the Constitution that leave little latitude for meaningful legislative change to satisfy the court.
So what does that mean practically? Take health care reform and the possible coming government arguments that the mandate to buy insurance is a) a tax or is b) covered by the interstate commerce clause.
Of course the court then has to decide on whether it is indeed a tax, if that tax is Constitutionally legal and whether Congress has the power to levy it.
Or, it will have to decide if such a mandate is indeed Constitutional under the commerce clause.
Given the incident during the State of the Union address, is there anyone who believes the administration’s arguments will be given the benefit of the doubt when it comes to a ruling on either question? If, in fact, it could conceivably go either way, I think most believe the way it will go will be the way least favored by the administration at least on the conservative side of the house.
Of course you’ll hear charges of “judicial activism” if that happens, but I’d be more likely to find a more narrow definition of the commerce clause or Congress’s taxing power to be anything but activist in nature.
It’ll be interesting to watch this all unfold. It’ll be a while before any of this reaches SCOTUS, but when it does, the fireworks generated will be much better than anything seen on the 4th of July.