In case you are not familiar with the nuances of what occurred yesterday at the Supreme Court, here is the bottom line: the majority (five justices) determined that the mandate that requires (almost) every American to purchase health insurance is not constitutional in one way, but it is constitutional in another way. The sense in which it is not constitutional is that it is not an act consistent with Congress’s constitutional power to regulate interstate commerce. The court has spoken clearly: requiring Americans to engage in economic activity is out of bounds insofar as the commerce clause is concerned. That’s the good news.
The bad news, however, is that the majority determined that Obamacare’s mandate that all Americans buy insurance or pay (what used to be called) a penalty is indeed within the constitutional power of Congress when that penalty is redefined so as to be considered a tax. In other words, the court says that Congress can require us to buy insurance or pay up if we don’t so long as that “paying up” is considered a tax and thus legitimately falls under Congress’s power to tax.
As I see it, there are two enormous problems with this decision, which was apparently orchestrated by the chief justice, John Roberts.
(1) It is abundantly clear that the “penalty” that was written into this law was intended to be just that: a penalty for failure to comply with the law, not a tax. The administration sold it to the public as a bill that did not include a new tax. The government argued before the Supreme Court back in march that the penalty was not a tax. The government’s strategy was to justify the law on the basis of Congress’s power to regulate interstate commerce. When Justice Roberts saw that this argument would not work constitutionally, he deliberately rewrote the law to make it fit his understanding of the Constitution. Judges should not be writing tax policy, but that is essentially what the Supreme Court did in this case. Congress wrote a bad law, and instead of throwing it out, Justice Roberts said, in effect, “If we as judges do a little rearranging here, we can cram this thing into a Constitution-shaped box.” This is judicial activism.
(2) Even supposing this thing formerly known as a “penalty” is a tax, what gives Congress the power to tax certain individuals for not doing something? As far as I’m concerned, it makes little difference what constitutional power Congress is asserting when they force Americans to buy a product. It’s still tyranny no matter what section of the Constitution you point to to try to justify it. It brings me little comfort that the court placed clear limits on what qualifies as the regulation of interstate commerce, because at the very same time it widely expanded Congress’s power to confiscate our wealth under its power of taxation. Justice Roberts, seeing Congress beating us with a bat, ran over to the scene, promptly took the bat away and handed them a whip instead, saying, “Here, use this. It’s within your Constitutional power.”
The upshot of all of this is that the government is inching ever closer to total control of our lives. We are a long way down the road to serfdom. If Congress has this kind of power over us, what can’t they do? What won’t they do?
What should we do? I agree with Douglas Wilson’s call for state governments to refuse compliance with this federal overreach:
There is now, in principle, no limiting principle on the congressional power to tax, and the absence of such a limiting principle has been upheld by the Supreme Court. Even if Obamacare is repealed (as I now believe to be likely), this is now just a policy decision — the constitutional green light has been given. If Congress is deemed to have the constitutional authority to tax you for not doing whatever it is they dictate (eating brocoli, wearing blue tee-shirts, whatever), there is no other name for this than despotism. The fact that it is a nanny despotism helps not at all. The fact that their exercise of this authority is currently in abeyance matters not at all.
And so this means that we should resort to Calvin’s doctrine of the lesser magistrate, and call upon our state governors and legislatures to simply refuse to comply with Obamacare. The time has come to just say no. This is because there is no form of government more fundamentally anti-Christian than a government that recognizes, in principle, no limit to what it can require. Absolute claims are the prerogative of Deity. If this decision is allowed to stand, there is no longer any limiting principle inside the Beltway whatever. It is time for the ruling class to discover that there is still a limiting principle outside the Beltway, enforced by those who believe that the only real limiting principle is at the right hand of the Father.