The day that freedom died

There’s No Such Thing As Free Healthcare: With the Supreme Court ruling that the individual mandate (“minimum coverage”) provision of the Patient Protection and Affordable Care Act is Constitutional under Congress’s taxing authority, the majority opinion written by Chief Justice John Roberts holds the line on the untrammeled expansion of the Commerce Clause of the Constitution (“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”) – but invites the untrammeled exercise of Con­gress’s authority to levy taxes (“Such legislation is within Con­gress’s power to tax.”).

In other words, Roberts substituted the peculiar notion that one can participate in commerce by not buying something for the equally peculiar notion that one can be taxed without engaging in economic activity. As Commentary magazine notes:

If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

Several law school professors hailed Roberts’ opinion as “an extraordinary display of legal dexterity,” “brilliant in a way that parallels Marbruy v. Madison” and “an act not only of judicial statesmanship but judicial creativity,” but Rep. Jeff Landry (R-LA) calls the ruling: “a tragic day for this republic” because it affirms that “our federal government is no longer limited, and … Congress has no limit through its taxing power.” He adds that “the answer is simply to do what we do with all unconstitutional onerous taxes, and that is to repeal it.”

The ruling – and Roberts’ siding with the high court’s ideological liberals – was so surprising that the second-guessing and speculation began as soon as the ruling was handed down, The Washington Post reports:

Some wondered whether Roberts originally had joined the court’s four conservatives, pointing to oddities in the opinion. The dissent offered by the conservative justices with whom Roberts usually sides in ideological disputes — Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — read more like an opinion for the court that had been abandoned, said David E. Bernstein, a law professor at George Mason University. …

Citing “two sources with specific knowledge of the deliberations”, CBS News confirms the speculation that Roberts not only switched sides, and reports that Kennedy (!) spent weeks trying to get him to switch back:

"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate. …

CBS also answers the conservative cri de coeur, “Why, Roberts, why?”:

Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the Court's historic decision. He kept it for himself. …

As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint. …

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation. …

Regardless of his thinking, it was clear to the conservatives that Roberts wanted the Court out of the red-hot dispute.

With Democrats and liberals pre-emptively attacking a decision to strike down ObamaCare as being “partisan and illegitimate,” The Wall Street Journal warns that, “If the chief justice capitulated to this pressure, it shows the court can be intimidated and swayed from its constitutional duties.”

Given that Roberts appears to be more concerned with the reputation of his court than of the erosion of our freedoms, University of California at Berkeley School of Law professor John Yoo berates columnist George Will and other conservatives “are scrambling to salvage something from the decision of their once-great judicial hero”:

[T]he reasoning goes, Justice Roberts's opinion declared that the Constitution's Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. …

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius's limits on the Commerce Clause and expand the taxing power even further.

Yoo advises the next Republican president to “be more careful than the last” and choose a nominee that agrees with “Scalia or Thomas or Alito, not Roberts.”

If there is a sliver of a silver lining behind this dark cloud hanging over the freedom and finances of Americans, by declaring the individual mandate a tax, Roberts may have made it easier for a future – hopefully the next – Congress to repeal it. Now, voters have to do their part to elect legislators who have the stomach to act.