One of the Worst Supreme Court Decisions in American History


ACRU Staff


June 29, 2012

This column by ACRU Senior Legal Analyst Ken Klukowski was published June 28, 2012 on

Chief Justice John Roberts provided the critical fifth vote to uphold Obamacare in its entirety, in a case that will go down as one of the worst and most consequential cases in American history. Now the Taxing Clause of the Constitution trumps the Commerce Clause as the greatest grant of authority to the national government, one that is without any limits that a court can enforce.

We will have more columns on this decision in NFIB v. Sebelius, but this first legal analysis column goes to the central issue in this infamous and terrible decision. Roberts’ opinion was joined by the Court’s liberals, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

John Roberts will now be compared by many to David Hackett Souter. The initial criticism of Roberts was that his pedigree was superlative–he was a legal rock star–but that we didn’t have adequate evidence that he was a conservative. Although ironically Roberts is showing a form of rigid judicial restraint in not deciding a matter that he thinks the Constitution entrusts to elected politicians, it has the decidedly ultraliberal effect of giving the central government terrifying power over the lives of every American.

Roberts notes that those who fail to purchase health insurance pursuant to the individual mandate must pay a financial penalty, which is to be reported on their tax return. The mandate is codified in Title 26 of the United States Code, the title which is the Tax Code. The penalty will be enforced by the IRS, though the statute also says enforcement cannot include criminal prosecution for imprisonment.

Roberts wrote, “It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax.'” But he said the Court follows a “functional” approach to such questions, regardless of the words Congress chooses. “Our precedent demonstrates that Congress had the power to impose the exaction in [Obamacare] under the taxing power, and that [this section] need not be read to do more than impose a tax. That is sufficient to sustain it.”

So long as it’s a tax, Roberts says it’s constitutional. He suggests in the opinion that there might be limits (maybe if Congress imposes a $100,000 penalty for not buying health insurance?) but does nothing to explain what they are to those of us who now must live under this previously-unrealized authoritarian power.

And the law doesn’t even have to call it a tax. I guess words don’t matter anymore in a legal system that’s based entirely on words. (Not to mention, of course, that President Barack Obama and Democrats in Congress swore to us repeatedly that the individual mandate is not a tax. Don’t get too hung up on words.)

The only way this opinion could have been worse would have been if Roberts had joined the liberals on the Commerce Clause. Roberts thoroughly demolishes the argument that “commerce” is whatever Congress says it is, in an analysis that none of the liberals joined.

Cold comfort, though. Under today’s majority holding, Congress can take anything it couldn’t do through the Commerce Clause and the Necessary and Proper Clause, attach a penalty to your not doing it, then have a court declare this penalty a “tax” and rope the entire governmental command within the reach of the Taxing Clause. Henceforth the national government has the power through this approach to command you to do anything not specifically protected by the Bill of Rights or other liberty provisions in the Constitution.

The four dissenting Members of the Court–Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and, yes, moderate Justice Anthony Kennedy–took what to my knowledge is the unprecedented step of issuing a joint dissent authored by all four of them. They wanted to speak with one voice and in solidarity with each other.

The dissenting justices correctly declared:

We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty… we have never–never–treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.”

Applying that principle here, the dissent adds that the individual mandate “imposes not a simple tax but a mandate to which a penalty is attached…demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate–a distinction that would make no sense if the mandate were not a mandate.” For example, if you are a low-income American, you are still commanded to buy insurance (possibly through joining Medicaid) but will not suffer any penalty (henceforth bizarrely called a “tax”) if you defy the law.

For reasons we might explore in a future column, the dissenters would separately strike down the Medicaid expansion in Obamacare unconstitutional, as exceeding Congress’ power under the Spending Clause and therefore an unconstitutional violation of state sovereignty under the Tenth Amendment.

Then they went to the issue of severability. “The two pillars of this Act are the individual mandate and the expansion of coverage under Medicaid. In our view, both of these central provisions of the Act–the individual mandate and Medicaid expansion–are invalid. It follows, as some of the parties urge, that all other provisions of the Act must fall as well.”

So we were one vote shy of completely striking Obamacare from the books. We were denied that by a justice appointed by a Republican president–reinforcing the painful reality that far too many Republicans are not conservative.

Today the Supreme Court reinforced its ancient maxim that “the power to tax is the power to destroy.” According to Chief Justice John Roberts, that statement is far more important and literally true than we ever imagined. It may now destroy the finest healthcare system in the history of the world unless we repeal it legislatively.

Although this line is often abused, the 2012 election just became the most important in our lifetime, and the stakes just went way up. The only way to stop Obamacare now is with a one-page repeal bill that must be passed by the House and Senate. Because it would reduce the deficit you can pass it with 51 votes as a reconciliation bill in the Senate; you don’t need 60 votes. Then President Romney can sign that bill into law, and do what the Court should have done today in eradicating Obamacare in its entirety.



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