Rachel Alexander

The dissent, written by conservative Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, argued that the individual mandate is a regulatory penalty, not a tax. They observed that in a few prior cases, the Supreme Court has held that a “tax” imposed upon private activity was so onerous as to constitute a penalty. Americans who do not purchase health insurance will be fined up to $1900 per year. If that is not an onerous “tax,” I don't know what is. The penalty for noncompliance is up to a year in jail or a $25,000 fine.

Daniel Fisher at Forbes Magazine argues that Roberts was not actually ceding power to Congress, but amassing more power for the Court, reminiscent of the power play by Chief Justice John Marshall in Marbury v. Madison. By siding with the liberals on the court on the narrow question of whether the mandate was a tax, Roberts was able to assign writing the majority opinion to himself. He then made two two far reaching decisions restricting Congress. He ruled that the individual mandate was not authorized by the Commerce Clause – a setback to liberals, who have vastly expanded the scope of the Commerce Clause to authorize all kinds of government regulations. Roberts reasoned that because it compelled individuals to become active in commerce by purchasing a product, not simply regulating existing commerce, it fell outside of the scope of the Commerce Clause. Roberts also limited a massive expansion of Medicare. While not quite striking it down, he held that it would be unconstitutional for the federal government to withhold Medicaid funds for states that failed to comply with the expansion provisions.

Not all legal scholars think this is a triumph for the judiciary over Congress. Professor Friedman believes using the Tax Clause instead of the Commerce Clause is bad news. He said, “This is far more devastating to federalism and the balance of power between states and the national government,” he says. “You can now tax pretty much anything.” Nick Dranias, a constitutional lawyer, lamented, “It is a turning point in history when the federal government can use the taxing power (the power to destroy) to accomplish regulatory ends denied to it under its enumerated powers.”

There is speculation that Roberts ruled this way in order to help conservatives strategically, to leave Obamacare hanging around Obama's neck for the upcoming election. By asserting that Obamacare is funded by taxes, it now becomes just another tax increase that the Democrats will have to defend. If it is a tax, it may be the biggest tax increase in history. It is so unpopular it will drive more people out to vote, especially doctors. A Rasmussen poll this month found that 52% of likely voters want Obamacare repealed. Obama is trying to avoid speaking about it in his reelection efforts; this victory puts him in an awkward position. Mitt Romney has said the first thing he will do when he becomes president is sign an Executive Order exempting all 50 states from Obamacare.

Did Roberts rule this way for tactical reasons, or did he sell out to the left? One connected D.C. insider is skeptical of Roberts' motives and believes he ruled that way because he is just another Washington politician. The Volokh Conspiracy legal blog wondered in May whether Roberts was pressured to uphold the individual mandate.

The problem with “free” health insurance for everyone is that it does not exist. Instead, as has happened in Canada and European countries which have socialized medicine, people are put on waiting lists or lotteries in order to receive treatment. It is not free if you die before receiving it.

NFIB v. Sebelius will go down as one of the most significant rulings coming from the Supreme Court. Instead of continuing 200 years of lumping government expansion of power under the Commerce Clause, the Supreme Court has now turned to the Taxing Clause to authorize massive new regulations.

Rachel Alexander

Rachel Alexander is the editor of the Intellectual Conservative.

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