Was the Roberts health-care ruling really a ‘substantial victory’ for limited government?

Equal Justice

Maybe George Will is correct in calling Chief Justice John Roberts’ upholding of Obamacare a “substantial victory” for supporters of limited government. I’m trying real hard to believe that. I would like ever so much to believe that.

And who knows, maybe the ruling would be a big win in a world where the present and future Congress — and the present and future Supreme Court — were somehow filled with vat-brewed clones of Roberts — cautious, careful, temperate men and women mindful of history, tradition, experience and precedent.

But I worry that activist judges who inhabit reality as we know it will kick through Roberts’ barriers around the Commerce Clause like it was old drywall and snap the shackles he’s created for it as would old-time circus strongmen.

As for Congress, the animating force of today’s liberal legislators is one that is both extractive and redistributive in the service of expanding and financing the Welfare State. Handing it a possibly more expansive taxing power is unexpected gift.

And it is one unlikely to be wasted by innovative politicians on the left. As the Wall Street Journal puts it, “The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it call them something else and judge call them taxes.” Richard Epstein on this point:

The earlier portion of the Chief Justice’s opinion noted the huge expansion in federal power that could arise if the government were permitted to regulate various forms of inactivity. What possible argument then could be put forward to say that the same risks do not apply to the expansion of the taxing authority to those same forms of inactivity, in ways that it has never been exercised before. The two examples that the Chief Justice gives are the tax on buying gasoline or earning income. Both of those are obvious activities that have long been regarded as acceptable bases for taxation. But not buying health insurance is not an activity. I am not aware of any tax imposed on individuals for not buying gasoline and not earning income, or not taking a bath or not working in a home office. To allow this to stand as a tax is to accept the same kind of absurdity that was rejected in connection with the commerce power. Intellectually shabby, to say the least.

What else will American be required to do or else suffer a tax? I’m sure climate change activists and Occupy radicals will be giving the Roberts opinion and its “verbal wizardry” — the scathing words of Alito, Kennedy, Scalia and Thomas — a particularly close reading in coming days.

The power to tax is not only the power to destroy but also, in the wrong hands, the power to a bit more easily recreate America into a European-style entitlement state — or anything else a government of men rather than laws decides.

5 thoughts on “Was the Roberts health-care ruling really a ‘substantial victory’ for limited government?

  1. I’m astounded that anyone would think the ACA/SCOTUS decision has any conservative elements whatsoever. It strains credulity to argue that Roberts preserved limited government. If that were true, why did he “correct” the law from a commercial mandate to a tax? If anything, that is doing the very opposite of what he purportedly intended. The court took action on a law the Congress never intended; Roberts essentially re-wrote the law for the Congress. That is an over-reach of astronomical proportions.

  2. There is a severe problem for our republic and all of its citizens. The Constitution does not protect our lives and liberties if (as now) it may be interpreted as a piece of complex philosophy. It must be predictably understood by a reasonably intelligent person as a limitation on government. When government is unlimited, then the populace only has the option of electing its next dictator, so long as elections are permitted.

    The Constitution is supposed to provide a fundamental agreement among the people of the US, independent of political whim and the political desire to accumulate power. This is no longer the case; the veil has been lifted.

    Possibly the Constitution died in 1942. The federal government wanted to control the market in wheat. A farmer Filburn was prevented from growing wheat because it might affect the market in wheat, even if he only used the wheat within his farm. The SC upheld the power of our government to do this under the strangest application of a single short sentence of the Constitution:

    . Congress shall have the power “To regulate Commerce with foreign Nations,
    . and among the several States, and with the Indian Tribes;”

    The intention was to guarantee free production and trade trade between the many states of a new nation. The interpretation in 1942 applied regulation in detail to any individual with the temerity to produce anything. This was directly opposite to the intent of that short “commerce clause” sentence.

    The Constitution is now a soothing pacifier, communicating a false liberty to people, while the real power of our country is being used to control our lives in the finest detail. When ObamaCare came before the SC, five justices were able to see a complex philosophy which allows the government to tell us to do anything, or pay a tax. That is not a limitation on government; it is only an economic enforcement mechanism no different in effect from a civil fine.

    Four justices saw that the entire law was an unconstitutional power grab, telling doctors, insurers, and the public exactly what they were suppposed to do.

    Five saw a permissible implementation of detailed power. Four saw a clear violation of fundamental rights. “The law” is a quaint anacronism when it can be interpreted in such conflicting ways. There is no longer any law, only the contest of political power, factions, and favoritism. The US is now a country with no fundamental agreement about personal freedom.

    This is an interesting experiment. Do we need the fundamental agreement which the Constitution represented? People respected the law because they understand the factional war which occurs in a purely political system. Now that the Consitution is dead, welcome to that war. Choose up sides, because the rules are only what the party in power says they are. Elect your next dictator wisely, because he will have complete control over you by mutual agreement.

    Russia gives a reasonable estimate of what our future will be like: an oligarchy (rule by elite political families) living off of a populace which is much poorer than we are now. No one will be independent of government control and connections. No one will be able to complain. Freedom of contract, to produce, and to trade by personal choice will disappear under detailed regulation for your own good.

  3. The socialists can now do whatever they please, and coerce us into compliance, if they call the penalty for non-compliance a “tax”. That is an insane, absurd notion, a gift to the tyrants from the traitor Roberts. The limits in the constitution are dead. Voters must give themselves the power to remove “justices” from the court.

  4. It is unfortunate that media and public discussion has never focused on the taxing power of Congress in the lead up to the decision. Congress quite clearly has the power to tax like this and has been depriving us of our freedoms for years with its taxing power. The conservative argument against ACA was semantic based on the fact that Congress called the tax a penalty. Taxes which are penalties are unconstitutional regardless of what they are called. Thus, if Congress had enacted a true mandate equal to the cost of insurance, it might well have been considered a penalty even had Congress called it a tax instead of a penalty. Some may think this all semantics, but it is not. It is cutting through verbiage to look at reality. That is what Roberts did

  5. We know you despise Obamacare, and agree with the vast American public who openly spit on it, so I’m curious. In light of double-digit rate increases on the part of our glorious American health insurance companies for the last 30 years or so, making the finest health care in the world unobtainable for increasing numbers of us, specifically which solution to this growing problem would you suggest. After all, its all well and good to criticize the good efforts of others. Its quite another to come up with something orignal yourself that might work. Can you? No truly expecting a reply, from you, Robme, or the Republican Party. We know what you want – status quo.

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