Citing research that suggests obesity is responsible for 10 percent of health care costs or about $147 billion annually, the Court warns about Congress’s temptation to regulate, saying, “[u]nder the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.” Michelle, put down that phone.
Even the Court, at least at this juncture, decided that would be a bit much: As Antonin Scalia wrote in his dissent joined by Justices Alito, Kennedy and Thomas:
“If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.’”
Roberts’ take isn’t as colorful, but does the job: “The Commerce Clause is not a general license to regulate an individual from cradle to grave.”
That’s great, but who needs the Commerce Clause when you can justify the same thing via Congress’s power to “lay and collect taxes?” The ruling provides an expansive view of the power to tax:
“Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. … No one would doubt that this law imposed a tax, and was within Congress’s power to tax.”
Really? We can be forced to buy a type of window – or else? No wonder the Court thinks it’s okay to tax someone just for breathing and not buying health insurance.
The ruling, as bad as it is, does whack the federal government’s ability to punish naughty states that don’t take more Medicaid candy from the nice men in the parked van with Washington, D.C. plates. The feds can dole out Medicaid money with strings, but “[w]hat Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”
Most importantly, the Court’s shocking decision sets up a scenario similar to the one that produced the Tea Party/GOP tsunami in 2010. Some observers credit Mr. Roberts with Machiavellian intent, saying he has guaranteed Mitt Romney’s election. Others say that the chief justice’s ruling, combined with the immigration decision against most of Arizona’s law, is proof that he has “gone Washington” and is worrying about what’s said at cocktail parties, like many previously conservative GOP appointees before him whose names I won’t mention (Anthony Kennedy, Sandra Day O’Connor, David Souter, John Paul Stevens, Earl Warren).
I hope Roberts is sounder than that, even if this decision rots. His opinion might simply reflect his conservative bent that big issues need to be decided at the ballot box, not in the courts. Indeed, Roberts wrote:
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
No, the Court won’t save us. We must get involved in November’s election as if our children’s and grandchildren’s future hangs in the balance.
That’s not too taxing for freedom-loving Americans, is it?
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