Friday, November 29, 2013


Chief Justice Roberts’ opinion upholding Obamacare reasoned that this burdensome and unpopular law was legal because the Constitution, as amended, allows Congress to assess taxes. This regulatory construct was appropriate use of government authority because Congress can levy taxes.

Before concluding Congress had the authority to impose this burdensome law, he acknowledged "the National Government possesses only limited powers; the States and the people retain the remainder." Explaining the limits of Federal Governmental authority, he wrote, "rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government's powers." 

Although the U.S. argued that Congress had authority to impose Obamacare under the Commerce Clause, Chief Justice Roberts concluded no such power existed. "If the power to 'regulate' something included the power to create it, many of the provisions in the Constitution would be superfluous." He explained, "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." This was too vast a grant of authority, and clearly exceeded the limited purpose of the Commerce Clause in the Constitution.

This naked grab for power to control the citizens was rejected by Roberts. The argument advanced by the U.S. would carry the nation far away from a government of limited powers. "Indeed, the Government's logic would justify a mandatory purchase to solve almost any problem."

And yet, Justice Roberts upheld the law! The foolish are often blinded by their power to reason through a problem, reaching carefully constructed errors while thinking themselves wise. 
In deciding this was a Constitutionally permissible law, Justice Roberts reasoned, “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many re­spects. The ‘[s]hared responsibility payment,’ as the statute entitles it, is paid into the Treasury by “tax­payer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the pay­ment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it ‘in the same manner as taxes.’ Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017. Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Patient Pro­tection and Affordable Care Act (Apr. 30, 2010), in Selected CBO Publications Related to Health Care Legislation,2009–2010, p. 71 (rev. 2010). It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax.’ But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Con­gress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Con­gress’s choice of label on that question. That choice does not, however, control whether an exaction is within Con­gress’s constitutional power to tax.”

In my view, this reasoning is deeply flawed. Any number of things may "look like a tax in many respects." But taxing is merely incidental to the real and primary objective to control behavior. Roberts is saying the abuses and expansive control over the citizens which is not authorized through the Commerce Clause may be usurped through the power to tax. In other words, the Federal Government can achieve in two steps what it cannot achieve in one. Directly, it cannot regulate commerce in such an oppressive and expansive way; but indirectly, under the guise of a tax, it may utterly control and subjugate the citizens without regard to limits on Federal power.

This reasoning allows an oppressive intrusion into every individual and family’s healthcare choices because there is merely an incidental effect that can be viewed as a tax. Does that mean other, similarly intrusive government regulation can now be adopted by an increasingly out-of-touch Federal Government over an unwilling population because the regulatory scheme has an incidental tax? The reasoning justifies continuing intrusions, regulations, and mandating behavior by citizens which the citizens themselves oppose, so long as the Federal Government is shrewd enough to include even an incidental component which relies upon the power to tax. Hospital costs alone in 2011 were $387.3 billion. Total healthcare is estimated at 17.9% of the US GDP, or a total of approximately $2.8 trillion (assuming today's GDP of $15.6 trillion--which will likely increase by the 2017 date used by Roberts). That makes the tax component of this regulatory scheme less than 2/100ths of 1% of overall healthcare spending. As a consequence of that tiny, de minimus component of this part of the economy, the Federal Government now gets to assume 100% control over 17.9% of the entire economy, impose unwanted control over individual choices, dramatically alter relationships between citizens and their doctors, control doctors income, decide who can receive what treatment, increase scarcity of supply, remove religious choices, require me to pay for maternity care even though there is no rational connection between requiring me to make that purchase and my need for the coverage, and allow non-physician regulators to impose health-care decisions, even deciding to restrict access to life saving treatment? An incidental tax permits these things to be imposed by an imperial, distant and unresponsive Federal Government? This is Constitutional? This is an appropriate use of the power to tax? It does not impermissibly expand limited powers in a way which threatens rights of privacy, right to contract, right to property, nor involve improper taking? 

Chief Justice Roberts will be remembered as the intellectual architect of the totalitarian state which the Constitution was designed to prevent. He has managed to undo, by his flawed reasoning, all the limits which the enumerated powers were designed to prevent. He joins a chorus of those in government, business and religion who seek to destroy man's agency. 

As we learned through the Declaration of Independence, when the rights of citizens are abused, there comes a point at which they properly decide they are no longer willing to submit. A decent regard for liberty by a citizenry who consent to be governed requires them to constantly consider whether their government has become destructive, rather than conducive, of liberty. When a long train of abuses and usurpations lead citizens to conclude the end in sight is absolute despotism, then it is the right, even the duty, to throw off such government. We are now being regarded as the property of a government entitled to control our choices, rather than free citizens whose consent is first required before any control is permitted. When citizens consented to be taxed, they did not consent forever after to permit the Federal Government to exercise control over lives based on the thinnest of connections to taxing. This law is not a revenue bill. It is an improper usurpation imposed by an imperial, aloof and usurping band of overlords who have lost regard for the will of the governed.

Chief Justice Roberts was wrong. His decision reflects a trend in tyranny which, unless repudiated, will end in the destruction of either individual rights or the union of this nation. This scheme was the product primarily of a Senator, Harry Reid of Nevada, who controlled the Senate, got the required votes by dispensing favorable treatment to several individual states to acquire votes, and got the required support for the 1,900 page bill without most Senators having read it beforehand. The current national leadership's view of the proper role of government is repugnant to me. If our liberties are lost, or the union ultimately destroyed, it will long be remembered that a Latter-day Saint was directing the legislative muscle to adopt this invidious scheme. 

We have a limited form of government. Unless the limited Federal Government returns to abide within those limits, it will destroy itself or the liberty of its citizens. We are at a tipping point. I hope there remains enough wisdom in our country to avert what will follow from the present, ill-advised course if it is allowed to continue.