Very little is clear from the so called opinion emanating from the chambers of the US Supreme Court. The opinion of the court written by one justice with no concurrences suggests a nearly unlimited capability by congress to impose taxes, and a 4 and 4 split over the power of the commerce clause. (Art 1, Sect 8, Clause 3)
Setting the ludicrous nature of the capability to coercively tax aside for one second, let’s examine some of the background. We all know of the political pressure placed on the court by the administration and the Democrat party in general to uphold ObamaCare. Well it seems that pressure caught more traction than one would expect. This reminds me somewhat of the pressure FDR placed on the court to uphold his New Deal initiatives, pressure which again was successful in bending the court to the will of the sitting President.
But how did this take shape. Recall the FDR threat to the Supreme Court of his day, was a threat to stack the court, and so remove any idea of constitutional restraint from the court’s philosophy of juris prudence. Fearing such a campaign, the Huges court as a result did begin upholding new deal measures of very questionable Constitutionality. And so in fearing the destruction of Constitutional restraint of law, they became the hand that destroyed it feeling more comfortable doing it themselves and imagining therein being some sort of restraint than risk an FDR stacked court.
Here is what I think: The media campaign against Roberts was making him nervous about public backlash for overriding such a large piece of legislation. Concerned that such backlash could lead to making liberal justice nomination a political point for Democrat election cycles, President Obama’s reelection in particular, he sought to blunt this by punting the question back to the political side. But wishing not to give carte blanche power to the commerce clause, Justice Roberts put himself through a conundrum of logic allowing taxation to be the implementing mechanism, and in doing so, since no one agreed with his position, set himself up to be final arbiter of all such attempts to coercively tax in the future. Omitted from this legal argument is how a tax itself not specifically linked to income is an “Income Tax” per amendment 16 to the US Constitution, or since clearly not an excise tax, how it would meet the requirements of Article 1 Section 8 Clause 1 and Article 1 Section 9 Clause 4 specifically limiting the capability to impose direct tax as follows “all Duties, Imposts and Excises shall be uniform throughout the United States; “ and “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” Within this critical omission of opinion by Justice Roberts is the angst most conservatives have with this decision, “is the power to coercively tax unlimited?” a critical reading of Roberts decision would suggest this to be so.
And so the court yielded no definitive answer to the question of the limits of power of the commerce clause, since insufficient concurrences exist to deliver a majority opinion of the court, and an additional question is raised and also unanswered about the limits of Congress to impose taxes. ObamaCare, now officially ObamaTax is upheld for different reasons amongst those in concurrence. The purpose of courts is to answer questions about law. That is their whole reason for being. The Obamacare case came to the court with many important legal questions attached to it beyond the superficial “Is it Constitutional?” In upholding Obamacare, the court cannot give us a definitive reason why, in failing to do so it could not answer the most important underlying legal question posed it by the case, and beyond even that failure, the proceedings raised another serious legal question that remains unanswered. I would call that objectively, leaning neither from the Conservative or Liberal side, but from the standpoint of law, a total and utter failure of the Supreme Court. We came with questions, we got a ruling that left us more confused than when we came in.
Now that I’ve outlined my disapproval of the legal aspects of how the decision was made. Let us rejoin the spectrum of philosophy and discuss practical impacts of the decision. In failing to set precedent beyond “ObamaTax is Constitutional” opens the door for more coercive penalty legislation in the future. Leaving it to the body politic to oppose such measures as protection will not be forthcoming in the courts. What we do know historically about broadening of federal authority is that you get one chance, once asserted, and by the courts approved, it rarely if ever gets scaled back, but only establishes a new baseline from which to grow. While some may call to focus the political process as justification for that growth, given that the US’ process is representative and democratic in nature, it comes with a number of disclaimers.
1. The opposition of ObamaTax participated in the political process and won the popular opinion on the issue. The bill was passed anyway.
2. Even if enabled by a tacit majority, the majority vote is not itself a inarguable response to tyranny. As a majority of small tyrants can be just as tyrannical as a single big tyrant.
Possible failures of the Republican form of government to protect rights were not unseen by the founders who in Federalist papers outlined the dangers of the oppression by the majority, and so limited the mechanism for change to the Constitution by the very well known, and by design, little utilized amendment process. Hamilton outlines particularly in Federalist 84 and 85, both the reservation of powers (wherein in 84 he warns that the bill of rights might give way to construing the federal government has more power than was actually granted) and the protection of the amendment process wherein three quarters of the states, not some bare popular majority, would have to agree and in so doing manifest the mandate that requires a change to the Constitution. In Federalist 51, Madison outlines that the process of subdivision was specifically intended to keep sufficient majorities from ruling in tyranny.
But all of those notions assume an immutable Constitution. And since Marbury v. Madison that task has fallen to the Supreme Court. Since they are the final arbiter, they are also the final relief for the claiming of rights, for expecting a minority or even plurality to form an overwhelming majority to overturn the Constitution itself via political process was NOT the protection of rights envisioned by the founders.
For the first time, coercive measures have been issued for inactivity, and a crisis created by federal government market interference is used as justification for the need to coerce Citizens of the United States into doing what they may otherwise not want to do.
The court forgets that the social contract in the US contains some riders beyond simple physical protection. Specifically the expository “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and declaratory “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Given a wide authority to coerce individuals with draconian taxation for both action and inaction, or arbitrary penalties which accomplish the same, and I don’t much care which you want to call it, is in fact an usurpation and a design to reduce a people to absolute despotism. And while morally obligated to attempt a political solution to this problem via the mechanisms of our representative government such as new justices to the court, amendments to the Constitution et al, we are under no moral obligation to continue to abide a progressive migration to despotism if the political means to arrest it fail.
This is the place the Supreme Court has brought the Citizens of United States to, where protection of freedom cannot be guaranteed by the Constitution as written for a court that refuses to narrowly construe federal power; Telling the Citizens “If you really want restraint on government power, you should amend the Constitution.” An ever divided and increasingly more polar body politic, blessed with a popularly elected government with too much power. A more unstable mix can be scarcely imagined, and certainly not what the founders thought they gave us.
Much like the Hughes court before him, Roberts fearing destruction of Constitutional principal became destruction’s right hand and carried it out himself.