Rachel Alexander

Conservatives are scratching their heads trying to figure out why Chief Justice of the Supreme Court John Roberts voted with the four liberal Justices on the Court 5-4 to uphold the constitutionality of the most controversial part of Obamacare. Even swing vote Justice Anthony Kennedy voted against it. The Obamacare individual mandate requires all Americans to purchase health insurance by 2014 or face jail time or huge monetary penalties.

The majority decision, written by Roberts, characterizes the mandate as a tax permissible under the constitution's Tax Clause. But what if someone chooses not to buy health insurance, resulting in a penalty of a fine or jail time? How can that be characterized as a tax if you're not buying anything? The Obamacare law does not even refer to its mandate as a tax. Obama declared in 2009 that his health care law was not a tax. By Roberts characterizing it as such, the reach of Congress's taxing power has been greatly expanded.

Using the majority's reasoning, Congress could put in place all kinds of draconian requirements. The possibilities are endless as to what kinds of things could be forced on people by threatening them with an onerous “tax.” This decision essentially authorizes Congress to do almost anything as long as it is labeled a “tax.” Greg Sargent at the Washington Post cites “Broccoli Tyranny,” a phrase coined by New York University law professor Barry Friedman who wrote a brief supporting Obamcare. “They can't make you eat broccoli, but they can tax you for not eating it,” Friedman says. Obamacare can be distinguished from local and state mandates to attend public schools and pay for public schools, since the Tenth Amendment grants the states powers not specifically granted to the federal government.

Rachel Alexander

Rachel Alexander is the editor of the Intellectual Conservative. She also serves as senior editor of The Stream.