Brian Darling

Congratulations to the Supreme Court’s supreme effort to protect their reputation at the expense of the Constitution and the idea of a limited federal government. The problem with the ObamaCare decision is that the individual mandate is not a constitutional exercise of the federal government’s taxing power.


In their dissent, Scalia, Kennedy, Thomas and Alito argued that “in a few cases, this Court has held that a ‘tax’ imposed on private conduct was so onerous as to be in effect a penalty. But we have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power – even when the statue calls it a tax, much less when (as here) the statue repeatedly calls it a penalty.”


As Robert Alt pointed out at Scotusblog , “Yes, under well-established precedent, Congress could have devised a tax to support universal health care. But they didn’t, and the Court engaged in feats of statutory contortion to make it look remotely like it was so.” The explicit language of ObamaCare calls the individual mandate a penalty, not a tax.


Following the decision, Sen. Rand Paul (R-Ky.) said, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our healthcare right.”


You need look no further than the Second Amendment as an example of why Sen. Paul’s analysis is spot on. People have a natural right to keep and bear arms to protect themselves. The Constitution recognizes that right, but does not confer that right to American citizens. We the people have that natural civil right, no matter what the Supreme Court says.


Brian Darling

Brian Darling is Sr. Vice President for Third Dimension Strategies, a strategic communications public relations firm in Washington, D.C. Darling served as Sr. Communications Director and Counsel for Senator Rand Paul (R-KY) from 2012-15. Before his tenure with Sen. Paul, Darling served in three different capacities with The Heritage Foundation. Follow him @BrianHDarling on Twitter.