As I stood on First Street in front of the Supreme Court of the United States in our nation’s capital at 10 a.m. on June 28, 2012, I knew I was witnessing history. But not in a good way.
In a Barnum and Bailey atmosphere, hundreds of cameras, protestors, and just passers-by awaited the long-anticipated decision. The court was preparing to finally announce whether the funding mandate—the heart of the Affordable Care Act, now enshrined in the American vernacular as Obamacare—would be declared unconstitutional.
The legal decision had the potential to validate or drag down the largest single piece of legislation in the history of American lawmaking. Drafted behind closed doors, ramrodded through Congress, nobody—and I mean nobody—had read it when then Speaker Nancy Pelosi told us that we first had to pass it to find out what was in it.
Apparently America’s citizenry has become so numbed to outrageous politics that even this did not raise an eyebrow—let alone guffaws and calls for tar and feathers that one might expect.
But that was all in the past. Reporters from across the nation jockeyed for position, as did the gaggle of politicians and activists angling to get proximity to the biggest media outlet. The court building glared white, and a 100 degree temperature matched the rhetoric that activists threw at one another in front of the 33 steps leading up to the great chamber.
Finally, the announcement came. The Obamacare mandate had been KO’d: Chief Justice Roberts wrote that such use of the commerce clause was unconstitutional. Fox News reported the headline. But then, no—wait: Within two minutes not only was Obamacare not down for the count, it was the clear victor.
“And Congress’s choice of language—stating that individuals ‘shall’ obtain insurance or pay a ‘penalty’—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance,” wrote Chief Justice Roberts. Although the word tax never appeared in the individual mandate, the Roberts’ majority substituted the word “tax” for the word “penalty” 18 times and made Obamacare the clear winner.
Unfortunately, the America we know and love is the clear loser. It is the loser, not as a result of Obamacare per se, but because, while we can rid the nation of Obamacare legislatively (if we the people so choose), we cannot get rid of the SCOTUS decision.
Over the last few days, Chief Justice Roberts has been rehabilitated by the media from being portrayed as a right wing legal hack to a scholarly visionary who has restored integrity to the Supreme Court. Media pundits, legal experts, constitutional scholars, and political grand poobahs on high have regaled us with a torrential flood of analysis of what “he” was thinking and when.
That may be as entertaining as debating how many angels can fit on the head of a pin, but for us lowly plain folk, maybe it’s time for some plain talk and common sense. The Roberts’ opinion introduced a profoundly dangerous concept into American jurisprudence: It is legal to use taxing authority to coerce citizens to participate in government schemes regardless of whether the citizen is engaged in unlawful conduct.
I am no lawyer, but didn’t I just read that using the commerce clause to justify the individual mandate was declared unconstitutional? Well, if all those arguments are irrelevant, then the court has ruled that just the power to tax is enough to justify penalizing citizens for not doing whatever our government wants them to do.
It is ironic that Roberts, who seems to hold his distant predecessor Chief Justice Marshall in high esteem, failed to consider Marshall’s agreement with Daniel Webster. In arguing McCulloch v. Maryland, Webster said, “An unlimited power to tax involves, necessarily, a power to destroy.”
Will we now have penalties for not performing abortions in Catholic hospitals? Or parents having too many children? Or penalty taxes for refusing to perform same-sex marriage? Sound far fetched?
It only took eight years to go from penumbras and emanations justifying contraception in Griswold v. Connecticut (1965) to exterminating babies via abortion in Roe v. Wade (1973). It took even less time from Lawrence v. Texas (2003) to legalizing same-sex marriages in Massachusetts (Goodridge v. Dept. of Public Health) that same year.
Consider this: In the history of the world, there has never been a weapon developed that has not been used. And the power to tax is indeed a weapon like no other.