COLORADO SPRINGS, July 8, 2012 – In the week since The Supreme Court decision on Obamacare, opinions about the ruling have been mixed. I’ve read quite a few and heard others at the Western Conservative Summit in Denver and thought to share a sampling, mostly from Colorado sources far from the D.C. Beltway, of what is being said.
It’s over. The Republic is dead
Libertarian friends tell me that it’s all over. The Republic is dead. Congress can tax anything you do or don’t do. It’s the “eat your broccoli or pay a fine (tax)” argument that we heard during oral arguments. It’s time to move to Argentina, Ecuador, Costa Rica, or just move around.
Mike Hollar, author of The Constitution Made Easy, writes this:
“IF we win this election, and IF Romney and the Republicans keep their promise to repeal and not replace Obamacare, then we must hold a conservative majority in at least one House, or hold the White House, forever thereafter.
“This is because SCOTUS has paved the way for Congress to do with us as they please, provided that they tax us for doing it to us. As it concerns health care, if there is ever another day when Dems and Rinos hold both Houses and the Presidency, they will immediately re-enact some version of Obamacare.” [Emphasis in original]
I think Mike would characterize himself more as a constitutional conservative than libertarian, but shades of political philosophy aside, the point about the taxing power is the same: that Chief Justice Roberts has flung wide open the gates of Congress’ taxing power.
DEATH AND TAXES
The Independence Institute filed amicus briefs regarding the Medicaid mandate and the Necessary and Proper Clause. Often forgotten in the debates over the individual mandate and the tax versus penalty argument are the rulings on these issues. The Court agreed with them on both these issues.
Constitutional Law scholar Dave Kopel of the Independence Institute wrote this:
“Of course we were disappointed that the Supreme Court upheld the individual mandate under a different theory—not that the mandate is a “Necessary and Proper” regulation of interstate commerce, but instead that the mandate is merely a tax.”
The distinction is significant. It is not merely putting a best face on the ruling. We heard plenty of that coming from D.C. conservatives, including the dinner presentation from Hugh Hewett at the Summit. That’s not what this is. Kopel continues:
“While the socialists are celebrating the individual mandate that they love and that most Americans loathe, let’s consider the bottom line, according to Lyle Deniston, the most-esteemed and most senior Supreme Court journalist in the United States:
“The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.””
Yes, the ruling does expand the taxing power—that’s undeniable—but actually exercising that power, in the short term at least, is very problematic. In the longer term, though, it will be used.
It is inevitable: after all, we are talking death and taxes here.
JUSTICE ROBERTS FAILS TO DO HIS JOB
So what do we do now or when this issue comes up again?
Roberts tried to balance too many competing interests rather than just doing his job. All of the good things that might come out of this ruling, like the limiting of the Commerce Clause, could have been accomplished by striking down the law.
He should have just done that.
The Wall Street Journal put it this way: “His ruling, with its multiple contradictions and inconsistencies, reads as if it were written by someone affronted by the government’s core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.”
As I wrote last week, the Supreme Court is not the Constitution; it is merely a creation of the Constitution. It is not a law-making body—that is role of Congress.
What the Supreme Court rules today can be undone in multiple ways.
First, a subsequent ruling of the Supreme Court can overrule a previous one. This ruling continues the Court’s attack on Wickard v Filburn, the 1942 decision that opened up the Commerce Clause. Much of what the federal government does today is done in the name of interstate commerce. All of that is now in jeopardy.
Further challenges of various parts of the Obamacare law are still possible—even probable.
Whenever the “broccoli power” is actually exercised by Congress, it can be taken to the Supreme Court and ruled unconstitutional by a future court, thus bringing the federal government’s taxing power back under control in the same way the Commerce Clause is being contained.
Second, a law passed by Congress can invalidate a Supreme Court ruling. Since the Court has ruled the PPACA law constitutional, the Congress can repeal it. (The reverse would also have been true.)
This is the approach that the opposition is now taking. If, as Mike Hollar says, the left is removed from power in November, the law will be repealed.
Third, an amendment to the Constitution can be made. Since the individual mandate as a penalty or as a tax seems blatantly unconstitutional, I’m not sure what form such an amendment would take. But it is a path that could be taken.
Fourth, states can ignore the Congress and the Supreme Court – a kind of “state interposition,” which is not “nullification.” An example of this are state medical marijuana laws which directly violate explicit law within the Federal Controlled Substance Act of 1970 and the Supreme Court decision in Gonzales v. Raich (2005).
We have such a medical marijuana law in Colorado.
Finally, the law itself is flawed in the way it structures compliance. If a state does not enact a health care exchange law, the federal government cannot force them to. There is no mechanism for the federal government to funnel federal money to the state except through the exchanges. Governor Scott in Florida has already said he will not comply. Our neighboring states of Kansas and Oklahoma have defeated attempts to set up state exchanges in the past two years.
Unfortunately for Colorado, Republican leadership in the House, which could have blocked such legislation here, instead cooperated with Democrats to pass an exchange.
The ruling in this case is long and complex and the opposition to Obamacare is large and growing. But one thing is certain:
The time for debate is not over: it is only beginning.
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