Sorting Through the Rubble

At Right Reason, John Eastman takes apart Chief Justice Roberts' majority opinion in very clear, precise language.  Among some of the highlights (and lowlights):

...the Chief manipulated the law to treat it as a tax, and then held that the taxing power is broad enough to uphold this law.

There are several problems with that. First, the President and leaders in Congress argued vociferously that the individual mandate was not a tax. Second, Congress did not impose a tax; it imposed a penalty for failure to comply with a regulatory mandate. Third, if it is a tax, the Anti-Injunction Act deprives the Court to even here the case. Fourth, the so-called "tax" did not originate in the House of Representatives, as Article I, Section 7 of the Constitution requires. It originated in the Senate. (Yes, I know: Technically the Senate stripped down a House bill that was languishing there, and then used that bill number as the vehicle for the Obamacare legislation. To say that the bill therefore "originated" in the House is a fraud.) Fifth, the power to tax is to provide for the "general welfare," not effectuate massive transfers of wealth from one group of citizens to another. And sixth, if it were a "tax," it would be a direct tax, but one that is not apportioned according to population, as required by Article I, Section 9, clause 4 of the Constitution.

Eastman points us to a post written by Rob Natelson who argues that Roberts missed a crucial distinction, which would have been evident to the Founders, on the question of taxes:

In Founding-Era parlance a “tax” is a measure adopted primarily for the production of revenue—that is, to raise funds “to pay the Debts and provide for the Common Defence and general Welfare of the United States.” While it is true that the Founders recognized that a bona fide revenue measure could serve the subsidiary goal of influencing behavior, the principal purpose had to be financial for it to qualify as a tax.

[...]

While there were some exceptions (for example, although taxes on ownership of capital and household goods were direct, excises on ownership of luxury goods were indirect) the usual line of distinction was that direct taxes were imposed on status, while indirect taxes were imposed on transactions. A tax that one must pay despite doing nothing is the quintessential direct tax.

Now, back to Eastman on an important point that I had not yet seen voiced:

The signature accomplishment of the Rehnquist Court was to restore the foundational idea that the Commerce power had limits, but it has been clear for some that that accomplishment is meaningless if Congress can simply shift to the Tax and Spend power to accomplish the same unconstitutional ends. 

Many people who lift up Roberts' opinion as conservative, that it finally constructs a limit to the Commerce Clause, have missed the boat.  I thought the Rhenquist Court already did that in U.S. v. Lopez, among other cases.  And that Court struck down the Gun Free School Zones Act in Lopez on the grounds that it violated the already expansive reading of the Commerce Clause established in that infamous case, Wickard v. Filburn.

Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito, argued that for Congress, compelling commerce in order to regulate it is a bridge too far.  But for Roberts, that's like constructing a concrete barrier a mile off of a cliff, when it actually was intended to stop cars from going over in the first place.  Saying that Congress doesn't have that kind of power is really not saying a whole lot in light of the fact that, as Roberts and the four liberal justices hold, the government's taxing power now becomes virtually unlimited.

The solace that can be taken from the circumstances we now find ourselves in:

Is there a silver lining? Yes. But it is not simply that this issue now becomes a rallying cry for those who would seek, following the next election, to repeal Obamacare. No; it must be more than that. It must be a repudiation so strong that the Court's decision itself is repudiated. In 1798, Congress passed the Alien & Sedition Acts, making it a crime to criticize the government. There was a huge outcry against the Acts, but the lower courts upheld them as constitutional. Thomas Jefferson waged his campaign for President in the Election of 1800 largely on repudiating those Acts. He was successful, but the Acts were not just repealed (or more accurately, left to expire). They were repudiated. Jefferson pardoned every one of the conscientious objectors who had been convicted under the Acts, and the judgment of history has been that the Court decisions holding the Acts constitutional were profoundly wrong. That is the exercise of true power by a truly sovereign people. That is the metal of which free men and women must be made if they are to remain free. That is now our charge, and our moment to take our place in the pantheon of American patriots, defenders of freedom, is now. Will we prove ourselves worthy of the task?