This would be no different than Congress enacting a "requirement" that you "shall" stop your car at a red light on a U.S. Army base and that if you violate this "requirement" you must pay a "penalty." It would be no different, that is, except that Article 1, Section 8, Clause 17 of the Constitution authorizes Congress to make traffic laws for military bases, while the Constitution does not authorize Congress to order individuals to buy products they do not want.
In the initial elements of his opinion, Roberts argued that in crafting Obamacare's individual mandate Congress did give its key words their normal meaning.
First, he argued that the Anti-Injunction Act -- which bars suits aimed at stopping the imposition of "any tax" until the after that tax has actually been applied -- does not apply to Obamacare's individual mandate because the mandate is enforced with a "penalty" not a "tax."
"Congress, however, chose to describe the 'shared responsibility payment' imposed on those who forego health insurance not as a 'tax,' but as a 'penalty,'" Roberts wrote. "There is no immediate reason to think that a statute applying to 'any tax' would apply to a 'penalty.'"
Noting that Congress used the word "tax" elsewhere in the more-than-900-page Obamacare text, Roberts said, "Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally."
In arguing that the constitutional clause that gives Congress the power to regulate interstate commerce did not authorize Congress to enact the "Requirement to Maintain Minimum Essential Coverage," Roberts conceded that the "requirement" did indeed "mandate" and "compel" Americans to do what the government said.
"The Federal Government does not have the power to order people to buy health insurance," he concluded.
And that should have ended it. But Roberts insisted on directly contradicting himself.
"The text of a statute can sometimes have more than one possible meaning," he wrote.
"The most straightforward reading of the mandate is that it commands individuals to purchase insurance," he said. "After all, it states that individuals 'shall' maintain health insurance."
But then he rewrites into a "tax" what he had just said Congress had deliberately written into the law as a "penalty." Having done that, Roberts argues that people need not fulfill the "requirement" the law says they "shall" fulfill so long as they are willing to pay this "tax" for not fulfilling it.
"While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful," wrote Roberts. "Neither the act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS."
Nor may running a red light on federal territory result in any negative legal consequences beyond making a payment to the government.
But would Roberts say failing to stop at a red light on an Army base is not unlawful so long as the penalty is only a fine? He would if he were consistent in applying his Doctrine of Lawlessness.
Or perhaps he would, too, if it had been yet another thing necessary to complete his intellectually and constitutionally indefensible quest to maintain Obamacare's command that you "shall" buy health insurance.
Terence P. Jeffrey is the editor in chief of CNSnews.com. To find out more about him, visit the Creators Syndicate web page at www.creators.com.
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