Retirement and Social Security Reform
Liberty Suffer For Years To Come Under A 'Roberts Court'?
Investor's Business Daily
July 3, 2012
By Ernest S. Christian
What is with Chief Justice John Roberts? Has
he all along been a closet lefty finally forced to show his
hand to save ObamaCare?
If so, why didn't he join with the four openly liberal justices
on the court in what would have been a 5-4 decision upholding
President Obama's buy-insurance-or-else mandate under the
ever-elastic Commerce Clause, thereby infinitely expanding
Washington's power to make us do whatever it wants?
Instead, he and the four conservative justices in a 5-4 decision
refused to expand the reach of the Commerce Clause to accommodate
Obama's mandate. Hooray! If the government can force people
to buy a product, in this case insurance, there would then
be no discernible limit on what else it might require in the
name of regulating interstate commerce.
For one brief shining moment, Roberts stood tall, protecting
Americans' liberties from the ultimate regulatory coup de
grace advocated by Obama.
But then, in a maneuver that left the four conservative justices
astounded and sputtering, Roberts turned around and joined
the four liberals in a second 5-4 decision (opinion by Roberts)
that upheld enforcement of the unconstitutional insurance
mandate as a tax.
He thereby infinitely expanded Washington's power to control
a broad range of behavior not involving interstate commerce
and that would otherwise be beyond government's reach. Odd?
Very! Also scary. The bottom line is simple: Do what the government
says or pay a special tax until you do! What could be more
straightforward (and frightening) than that?
Roberts did not cut back on the government's broad powers
under the Commerce Clause; he merely refused to expand them,
and, instead, concentrated on expanding Washington's power
to discipline us with taxes. At his instigation, government
now has two hugely powerful court-blessed weapons in its behavior-control
Roberts extended himself greatly to save ObamaCare with a
tax-based opinion that, while electrifying in its conclusion,
is uncertain in language and lacking in the compelling legal
analytics normally expected. It can fairly be characterized
as a bit of a curiosity, almost as contrived and offbeat as
Only to Roberts and the liberals is the regulatory penalty
under ObamaCare a tax and, in their minds, apparently only
for the purpose of upholding the mandate.
It is not a "tax" under the Anti-Injunction Act
(the court unanimously so held.) Although the IRS is to receive
and account for the money, the normal rules for the enforcement
of taxes due do not apply. What the chief justice chooses
to call a tax was written and passed by the Congress as a
regulatory penalty, and signed into law by a president who
consistently insisted that it was not a tax.
For the purposes of the World Trade Organization treaty and
decades of international learning and litigation related to
taxes, if the regulatory penalty can be recast as a tax at
all, it is a "direct" tax because it is imposed
on persons, as distinguished from an "indirect"
tax imposed on goods or services.
If a direct tax, and because it is not apportioned among the
states, it should be barred by Article I, sections 2 and 9
of the Constitution, unless further recast as an "income
tax" allowed by the 16th Amendment.
Even if, arguendo, the regulatory penalty is an otherwise
permissible tax (indirect or direct), that does not necessarily
mean that it is constitutional. Roberts seems to be saying
that imposing a special tax on people until they give in (and
do what they are told) is constitutionally innocuous because
any tax, once injected into the private economy, tends to
have some influence on behavior.
One of the more disturbing aspects of his opinion is the failure
adequately to distinguish between a free-market economy's
built-in dynamic reactions to changes in tax rates and, on
the other hand, a deliberate decision by government to impose
a special tax on nonconforming people until they buy insurance,
lose weight, start buying and using birth control pills or
do other things that the government has no constitutional
authority to require.
The question is why did Roberts climb so far out on such a
shaky limb. The opinion he wrote on the status of ObamaCare
under the Commerce Clause is profound and sure-footed. In
contrast, his opinion on the tax issues seems to have been
written by a different person who is far from a master of
the subject, and himself not fully convinced, but feels compelled
to uphold ObamaCare.
It is hard to think of Roberts as an unctuous and anxious
Uriah Heep, concerned about his status among the left-wing
arbiters of intellectual correctness, and yearning for approval
by the New York Times and Washington Post. Possible, but not
Perhaps the chief justice thought that if he deserted the
conservative wing of the court and adopted what he mistakenly
thought was a middle-ground approach, he might shake up -
and eventually end - the liberal versus conservative split
that has long plagued the court.
If so, it is too bad that he chose to do so by producing a
result that is so profoundly disturbing in its implications,
and backed it up with an unimpressive opinion. It is unlikely
that he has enhanced his reputation (and leadership capacity)
among his colleagues on the court or with the public.
It is not necessary for the chief justice to be a reliable
conservative, but it is necessary for him to be a reliable
jurist who reaches decisions well-grounded in the immutable
principles of logic and precedent. Highly flexible "situational
logic" is bad enough in the White House and the Congress.
It has no proper place on the Supreme Court.
The ObamaCare saga may signal a new kind of "activist"
judicial philosophy that, given Roberts' young age and the
advanced years of many of the other justices, may in time
develop into the "Roberts Court." The chief justice
says it is the duty of the court to uphold what Congress and
the president do if it possibly can, and, in this case, he
actively sought to do so, going well beyond what the dissenting
justices and many others seem to think is reasonable.
In the future, instead of the court going to great lengths
to protect individuals from government, as many liberals and
conservatives have done in the past, and instead of trying
to preserve the rightful role of the states in a federal system,
as many conservatives have so often tried to do, the court
under Roberts' leadership may primarily seek to protect the
growing power of the federal government from court challenges
by those who disagree with its decisions.
If that is the course taken by the Roberts court, and if it
refuses to protect people from the excesses of presidents
and members of Congress who by hook or crook have managed
to get themselves elected, liberty will suffer.
It is already clear that Americans are on this Fourth of July
less free than they were on Independence Day last year. If
Roberts' decision in the ObamaCare case is a true harbinger
of what is to come, it is also clear that we will all be far
less free 10 years from now - and, ultimately, not free at
Christian has been a lawyer in Washington, D.C., since
the 1960s, was deputy assistant secretary of the Treasury
for tax policy in the Ford administration, served on President
Reagan's transition team in 1980 and helped draft the original
Reagan tax reforms enacted in 1981.