Thursday, June 28, 2012

The Answer We Got Today

So we're in for an interesting campaign season, then....

I don't think anyone thought the scenario would play out quite the way it did, but the Supreme Court today did let Obamacare stand on a 5-4 vote, with Chief Justice John Roberts providing the deciding vote. You'll have no trouble finding news articles about the case and probably more analysis than you ever would have time to read. But since you're here, I'll share my thoughts.

The greatest fear I had was that the Supreme Court would accept the idea that Obamacare was constitutional because of the Commerce Clause and the jurisprudence surrounding that particular clause, especially the case of Wickard v. Filburn, which I have referenced a number of times. As it turns out, Roberts and the other justices in the majority (Sotomayor, Kagan, Breyer and Ginsburg) ruled that the key portion of the law, the individual mandate, was constitutional because of Congress's power to levy taxes. There's no point in disputing that power, since it's right there in Article I
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
Uniformity is an interesting issue where this law is concerned, but Congress's power to levy taxes is beyond dispute. Roberts and his colleagues were certainly within their right to see the law as constitutional on that basis. As always, just because you can do something doesn't mean you should. And we have every right to hold Congress and President Obama to account for their handiwork. And I urge my fellow citizens to do so in November.

The good news, potentially, is that the abuse of the Commerce Clause might be coming to an end because of this case. Writing for the Washington Post, Brad Plumer offers a fairly straightforward explanation:

In its decision Thursday, five justices, including Roberts, ruled that the health reform law’s requirement for all Americans to purchase health insurance runs afoul of the Constitution’s Commerce Clause. Basically, the court ruled that Congress can regulate existing interstate commercial activity, but it can’t directly force people to enter into a market (by, say, requiring them to purchase health insurance). “The power to regulate commerce,” Roberts wrote, “presupposes the existence of commercial activity to be regulated.”
That could be huge, as Tom Scocca of Slate points out:

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well).

Scocca quotes the opinion to explain this (italics in original):

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. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
This is about as ringing an endorsement of enumerated powers as an evil-hearted conservative like myself could ever hope for, truth be told. And because it spells out that you cannot compel someone to engage in commerce, it kicks Wickard and another odious decision, Gonzales v. Raich, right in the teeth. While the court cases that will follow this case will take time, I could easily see a day in the future in which these cases are essentially defanged. That would be a great thing.

It's pretty simple, really. Benjamin Franklin summed it up nicely at the beginning of the Republic:

QUOTATION: “Well, Doctor, what have we got—a Republic or a Monarchy?”
                                “A Republic, if you can keep it.”
Just so. If we have learned nothing more from cases like Raich, or Kelo,  it's this:  you cannot rely on the Supreme Court to be a personal deus ex machina and save your ass from tyranny. You have to do it yourself, with the tools you have, which include your voice and your ballot. It's up to us to have our say. And you can do that in November. We have a Republic, if you can keep it. And one way to keep it is to go to the ballot box. So get to it.


Gino said...

vote early, vote often... its how elections are won.

Anonymous said...

It's kind of hard for a someone who believes in a strict interpretation of the constitution and our other laws like myself to argue with Roberts interpreting the law in a strict manner, making it equally difficult to argue with the ruling.

One thing that is frustrating is that activist judges legislate from the bench on a daily basis, throwing out legisltation on a continual basis based on their political views. Roberts has clearly placed himself above the fray, and I think that partisans from both sides will have trouble arguing that he is probably one of the only judges left that doesn't use the "end justifies the means" argument for interpreting the law.

The other item that I draw from this judgement is that clearly anything that is charged by the government is a tax. You can use terms such as penalty, user fee, revenue enhancer,or any other flowery political lie/term you want. In the end, if it generates revenue for the government, it has been interpreted as a tax. I sincerely hope that those who support limited government use this when politicians who support largesse try to use other terms to make it seem as if their "revenue ehancers" aren't raising taxes. If we've learned anything, we now know that A tax by any other name is still a tax. Additionally it does appear that the government can impose a tax on us for any reason including our actions and inactions. It's up to us to make them pay for their actions & inactions in the voting booth.