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A Constitutional wreck

Roberts turns penalty into tax

The following article by Hadley Arkes, professor of jurisprudence at Amherst College, appeared on July 3 on The Catholic Thing blog site.

There had been warnings: At private gatherings, friends had seen certain conservative members of the Supreme Court looking rather downcast and discouraged. Some of us drew the dark inference that these were signs of what was to come with the decision of the Supreme Court on Obamacare (NFIB v. Sebelius). We clung to hope, but we braced ourselves.

Well, as it turned out, we read the body language the right way. The jolt might have been lessened by forewarning, but it was a shock nevertheless as we discovered that the result was produced by John Roberts swinging over to join the four liberal judges.

And yet the result had not been regarded earlier as implausible. Two months ago, I was at dinner, at Harvard, with two renowned friends, one a professor of law, the other a federal judge, and none of us could be certain as to where Justice Scalia would come down in this case.
It seemed entirely possible that Scalia could say, “Look, the lines of jurisprudence here on the Commerce Clause have been in place for seventy-five years. If you want to be rid of Obamacare, you’ll have to defeat it politically. We’ve argued that the judges should stand back. Don’t ask us now to do your political work for you.”

The astonishment came from the fact that it was John Roberts who now delivered a message of this kind, while Scalia was firmly on the other side.

The price for the Chief Justice joining the liberal side was that he could set down an opinion even clearer than the opinion offered by Justices Scalia, Kennedy, Thomas, and Alito in dissent: that the Commerce Clause could not be used to compel people to engage in the very commerce that brought forth the powers of the government to regulate it. The government could not issue a mandate to compel people to purchase medical insurance.

Some commentators have found a redeeming part of the judgment in this part of the opinion. But here, I’m afraid, some of our friends have been telling themselves fairy tales. For what Roberts set forth in the first thirty pages, he made into a virtual nullity in the remainder of his opinion, the part that provided the ground of his judgment.

The Administration had insisted that the Patient Protection and Affordable Care Act (aka Obamacare) did not raise taxes. But Roberts held that the penalties contained in the Act, the penalties for failing to buy insurance, did indeed form a tax, not a penalty.

The magical effect of a “tax” in this case was that it allowed the federal government to soar beyond all of those niggling limitations thought to be found in a government of limited powers. After all, the taxing power had been used for such things as encouraging people to buy homes. (Though people were not taxed for failing to buy a home.)

As Roberts pointed out, it was not strictly necessary to use the taxing power only for revenue: Congress had levied taxes in the past to discourage the import of slaves, but also products from abroad competing with products made in America.

The Administration admitted that the penalty for not buying medical insurance was indeed a penalty, not a tax. But the Chief Justice saw his task as moving beyond the titles that the president and the Congress were willing to give to their handiwork. The question of whether an Act of Congress is constitutional should not depend, he said, on whether “Congress used the wrong labels.”

But it was more than a matter of labels. John Roberts was appealing to a maxim not contained in the Constitution: that unelected judges should make an effort to find a constitutional ground for legislation before they fly to striking down a law made by legislators elected by the people.

That maxim, however, had to flow from a deeper principle about rightful government depending on “the consent of the governed.” In that case, it made the most notable difference that Obamacare managed to secure its passage – and the “consent of the governed” – only when it was “justified” to the public as something other than a tax.

If the Court had respected the discipline that comes with government by consent, it would have sent the measure back and essentially invited the president and Congress to come before the Court again with a bill that had been explicitly offered in Congress as a massive program in taxes – and on that basis secured its passage.

But the odd result is that John Roberts, with his own inventiveness, produced a decision that the Obama Administration has now repudiated. Obama and his aides have emphatically denied that the law brought a raise in taxes. The Administration has refused to respect the very terms on which John Roberts managed to sustain its defining “achievement.”

If there is any redeeming part to this wreckage it is that the decision induced a clarity of mind among the pro-lifers. If the Court had swept away Obamacare in a stroke, Catholics and Evangelicals might have been lulled into the assumption that the Court had solved overnight the problem of those mandates on contraception and abortifacients.

No. That threat to religious freedom will be averted only by voting out this Administration and repudiating its works. The question is back in the political arena where it belonged in the first place.

To read original blog posting, Click here.


Posted Friday, July 06, 2012 12:23 AM By Dan
That Obama hates this reasoning of Roberts as much as conservatives is gratifying to this reader. The issue of taxes is an albatross around Obams's neck, or so it seems to me, and provides fuel for Romney in the debates. Only now the Republicans had better articulate a plan of their own, and very very soon.

Posted Friday, July 06, 2012 1:23 AM By Don Guillermo
The irony is that without any penalty or "tax," Obamacare would have been ruled unconstitutional under the commerce clause. Supposedly, the tax makes it constitutional now by creating an option for people not to engage in commerce. The reasoning is absurd. Since when are people taxed for NOT doing something, especially when their right not to do it is protected by the Constitution? This is what happens when judges reject natural law and presume that they rather than God confer rights.

Posted Friday, July 06, 2012 2:37 AM By MAX
Obama said it was not a tax, the Democrats (who held the House and Senate when Obamacare was passed) said it was not a tax but a penalty. In fact they removed the word tax from the bill and inserted "penalty". Apparently Justice Robert's wants to start legislating from the bench and redefine the exact wording and intent of the Legislative branch.

Posted Friday, July 06, 2012 4:23 AM By AnnAsher
I hope we do end up with Romney in the whitehouse. Then when nothing substantive changes, I hope people really wake up. Romney will not repeal Obamacare - he won't defend the Church.

Posted Friday, July 06, 2012 5:51 AM By LARRY from R.I
If the Court had respected the discipline that comes with government by consent, it would have sent the measure back and essentially invited the president and Congress to come before the Court again with a bill that had been explicitly offered in Congress as a massive program in taxes – and on that basis secured its passage AMEN AMEN AMEN AMEN AMEN AMEN

Posted Friday, July 06, 2012 6:10 AM By Abeca Christian
If we can't form our consciences freely, if we allow liberals to form them instead, then we have lost and we are slaves to these agenda's. The few who do think outside of the box will always be and continue to be cornered until they have no more fight in them, thus causing conformity. Therefore all those who still hold common decency for the common good, must unite, no matter what our differences are, we must unite on what we hold deal and that is our freedom! We must remember how precious this freedom really is, our children are already being indoctrinated into the liberal views, they are slaves to these lies, they are so dependent and told what to think without reason. I pray for God's help for this mess is bigger now and it is out of control. Only God can repair it, may He bless us with wisdom and knowledge and with the courageous leadership to do right!

Posted Friday, July 06, 2012 6:24 AM By Ted
Roberts's motives are really not clear. It can, however galvanize support for conservative candidates running for the House and Senate, as well as for Romney. It doesn't matter if Obamacare is constitutional if it gets repealed next year. That is all that is left to opponents. Get the vote out. Communicate to the elderly that, yes, their health care will be rationed, and decisions made by government hacks, not them and their physicians. It is a major diminution of freedom and an unbelievable expansion of government. Vote, folks. The time is November. Kick the Democrats to the curb, and get people in office who will fix it, not just talk about doing it.

Posted Friday, July 06, 2012 6:33 AM By Prof.Helen
I read this very strange opinion and if words had Constitutional protection the Chief Justice would be guilty of "cruel and unusual punishment" for what he did to the language, both legal and ordinary.So it is what it is. REGISTER , COM MITT AND VOTE for the defenders of Life and the Constitution.

Posted Friday, July 06, 2012 6:46 AM By JLS
Arkes uses words like "deep", "deeper" and so forth, but he offers no insight into the nature of the situation. As Roberts has said, he simply handed the whole hot potato back to Congress, ie back to the voters. And at the same time he provided the possibility for Congress to give a tax break in case it is not repealed, and in case it is replaced by, say, a RomneyCare Plan.

Posted Friday, July 06, 2012 8:19 AM By JMJ
Another benedict arnold with the name of John Roberts. This shows us just how much power Obama has when he can control such a man as this. Will we have an election in Nov.? Will it be a honest one, unlike in 2008ad? Will God say enough is enough and punish us as a country? What was His message with that horrible electrical storm over D.C. that knocked out power for so many people last week? For these answers and more questions to come; stay on your knees and pray, pray and pray some more. +JMJ+

Posted Friday, July 06, 2012 8:26 AM By MD
I’m hoping this decision is the catalyst to remove Obama in November. As Archbishop Chaput said this morning on EWTN, we have to be in this for the long haul and have to fight for life in America and around the world. There is great hope here. God Love You.

Posted Friday, July 06, 2012 8:43 AM By jp
Call it like it is.....the law is now "Ro-bamacare." Thanks for nothing Mr. Chief Justice!

Posted Friday, July 06, 2012 8:55 AM By Catherine
Thank you Ray Hunkins for your own excellent comments made to the original blog posting. Your post is worth repeating on CCD's site. "Excellent, Professor. Two Points: First, no solace can be taken in the Chief Justices's ruminations about the Commerce Clause. He was writing for himself. It is all dicta. Second, if the hypothesis concerning the Chief Justice caving in to pressure is true, he turned his back on his self-described duty to "call balls and strikes." I am reminded of a great quote from Winston Churchill on the subject of courage: "One ought never to turn one's back on a threatened danger and try to run away from it. If you do that, you will be in double danger. But if you meet it promptly and without flinching, you will reduce the danger by half. Never run away from anything. Never!" I hope it is not true but if the Chief Justice succumbed to pressure, or placed approbation ahead of duty, he failed his duty to his Country. He failed a test of courage. In making nominations to high office, the President, and the Senate in its advice and consent role, should vet for courage, the most important because it is the one on which all others depend." Bravo to Ray Hunkins!

Posted Friday, July 06, 2012 9:30 AM By JLS
Congress has the authority to set aside this issue from the jurisdiction of the SCOTUS.

Posted Friday, July 06, 2012 9:38 AM By Juergensen
So what the government cannot mandate under the commerce clause it can mandate in the guise of a tax: Purchase a green vehicle or pay a $1000 annual tax; Purchase one pound of broccoli per week or pay a $500 annual tax; Purchase a side of vegetables with every burger or pay a $400 annual tax. Roberts might as well have sided with the liberals on the commerce clause, for the end result is the same: government power to mandate behavior where there was none. Actually, ruling that the government can mandate behavior under the guise of a tax grants the government far broader powers than had Roberts voted with the liberals and held that the government can mandate behavior under the commerce clause, which is far more restrictive than the government's taxing authority. As such, Roberts actually EXPANDED government powers more than even the abortionist liberals on the court were going to.

Posted Friday, July 06, 2012 10:10 AM By ANNE
AnnAsher - hopefully Romney won't actively support and encourage the killing of innocent babies in the US, at the UN, and through our foreign aid as Obama does. Obama is the most evil President we have ever had.

Posted Friday, July 06, 2012 10:13 AM By Tee
In reading all of the above, the thought occurs that regardless what the WE think, leaders of both "parties," those running this show, want whatever one prefers to call it, Obamacare, PPACA. They want the medical control of our lives. They now have it and they will keep it despite all of our strategies to have it removed. May God have mercy on those not able to defend themselves. May God give others the courage to step up and defend the indefensible by whatever means possible. And in our "if it feels good do it" culture, that will not be many.

Posted Friday, July 06, 2012 10:45 AM By Bob One
I thought that this article had too much of a "political" tinge to it that I would have expected from this site, a religious site. Though I agree with the SCOUS findings, I think that we ought to limit politcal articles to political blogs and keep religious blogs about religious issues. Except for the contraceptive and abortion sections of the Health Care plan, everything else supports the teaching of the Church, doesn't it?

Posted Friday, July 06, 2012 12:41 PM By Delilah
Obamatax. That is good news. He said that he would not raise taxes. Roberts also said that we can't expect the Supreme Court to do away with what we the people elected ie: the Representatives in the House, the Senators in the Senate and of Obama. Although many of us did not vote for Obama, we were silent. There was no noise from the bishops, the pulpit or the laity in 2008. Roberts in a sense was saying you get what you pay for. Pax

Posted Friday, July 06, 2012 2:39 PM By art
This tax all of you are obsessing over affects four million people.

Posted Friday, July 06, 2012 2:49 PM By Kenneth M. Fisher
Delilah, 12:41 PM, You are stating "There was no noise from the bishops, the pulpit or the laity in 2008." and that simply is not true. There were many who spoke out, including some bishops, many priest, and many of the laity. The truth is that most preferred their Demoncrat Party and their welfare checks over the Truth. God bless, yours in Their Hearts, Kenneth M. Fisher

Posted Friday, July 06, 2012 3:02 PM By Kenneth M. Fisher
Abeca, When I recently spoke at a Tea Party Rally, I told those present that the usual politics won't save us, that we have to get on our knees and ask God to forgive us, and then He will send us decent moral leaders who will lead us, with His help, out of this mess. God bless, yours in Their Hearts, Kenneth M. Fisher

Posted Friday, July 06, 2012 4:49 PM By JLS
Bob One, I do not believe you when you say you "think"; your views are more like rehashing of sound bites than thinking. You are probably a great "feelings" man, but don't kid yourself with the self descriptive "thinking"; it simply does not fit your posts.

Posted Friday, July 06, 2012 4:51 PM By JLS
Excellent but disturbing observation, Juergensen!

Posted Friday, July 06, 2012 4:55 PM By JLS
Constitutional validity depends entirely on an educated, proven economically responsible adult. This element among the voting public is all but overwhelmed by fools who defy wisdom, courage, and judgment. If it keeps going, then in a few terms down the road we no longer will have coke snorters running the nation but bath salt huffers.

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