Obamacare Mandate upheld as a TAX with swing vote coming from Roberts, appointee of “compassionate conservative” G.W. Bush

I need to calm down and read the darn opinion, but it seems that, although the Court was not prepared to uphold the Individual Mandate of Obamacare, either under the Commerce Clause power, or under the Necessary and Proper Clause, that they were happy to uphold it as a TAX!

This is thanks to the swing vote from Chief Justice Roberts, appointee of “compassionate conservative” G.W. Bush. Now its seems that Bush not only gave us Obama, he also gave us the Chief Justice who would be the deciding vote upholding Obama’s worst, most evil piece of legislation.

This is a prime example of the pure evil that compulsory taxation represents.

More later…

UPDATE with some further thoughts:

This also shows how everything is interconnected. Now, to fight for a free market in health care, we need to get rid of compulsory taxation. First steps towards achieving this goal: total repeal of Obamacare, and legislation drastically curbing the taxing power.

This Individual Mandate will destroy whatever free market is left of health care. It’s just a matter of time. Unless the GOP shapes up (i.e., stops this “replace” talk), quick, Obama will win.

Do the “repeal & replace” types have any idea of what they want to replace it with? They need to realize that ANY government intervention in health care will destroy it and, eventually, our entire economy.

We knew that, long-term, we need a moral & philosophical revolution. We were just hoping for a bit of a reprieve while fighting for it.


Some have pointed to a possible “silver lining” with respect to limiting Congress’s power under the Commerce Clause. I scanned the syllabus, and it seems the Commerce Clause holding is based on the activity/inactivity distinction. IF the Court had invalidated the legislation, then having this distinction become part of our jurisprudence, temporarily, might have been worth it. But now we not only still have Obamacare, we also have, even more entrenched, the idea that it’s OK for Congress to regulate anything, so long as it’s “activity” and not “inactivity.” Who would’ve thought we’d have BOTH the mandate upheld, and the activity/inactivity distinction made part of Commerce Clause jurisprudence?

STILL MORE: I’ve read (quickly) the Commerce Clause portion of Roberts’ opinion, partly because I calmed down enough to do so, and partly because I saw a link to a Slate.com piece claiming that Roberts voted in favor of the mandate being a tax, just so he could “gut” the Commerce Clause. I saw no gutting of the Commerce Clause. Roberts explicitly reaffirmed Wickard v. Filburn, which is about as bad as it gets. (It says that Congress can regulate someone who grows his own wheat for consumption, because by not buying wheat on the market, he is “affecting” interstate commerce.) So basically Roberts said today that the only limit he was instituting was that Congress could not do something under the Commerce Clause if there was no existing activity to regulate. This was true before Obamacare, so all he did is say, “this far and no farther.” No gutting, despite the strong “limited government” language in places. And, besides, for all the complaining about what the powers of Congress would be if this was upheld under the Commerce Clause, he went ahead and voted for the same exact thing to be done, as part of the power to tax!

So, so far as I can tell, the only possible silver lining in this opinion is the Court’s holding that strikes down the provision in the legislation giving the federal government the ability to force states to comply with the Medicaid expansion, by means of threatening to withhold a state’s existing Medicaid funding. That the Court said the government could not do. How much will that affect the ability to implement Obamacare? Not sure.

Those who are as upset about this ruling as I am might enjoy Bosch Fawstin’s latest cartoon. Make sure to look and see what’s on Roberts’ forehead.

Check out additional commentary, from The Ayn Rand Center, here.


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26 responses to “Obamacare Mandate upheld as a TAX with swing vote coming from Roberts, appointee of “compassionate conservative” G.W. Bush

  1. Darrell

    My understanding is that the ruling was 6-3 meaning that Roberts wasn’t the swing vote. I’m guessing he joined the majority in order to say is was a tax in order to avoid expanding the Commerce Clause.

    • Oh, great. Fox got something else wrong. Hard to blame them, as they were reading it just as it was released, and thrown for a loop like so many of us. Off to check the opinion. A colleague at Chapman suspected that Roberts might join in, simply to make sure it wasn’t a split decision.

    • Actually, it was 5-4, so Fox was right!

    • Jim Valliant

      Silver lining time: I think that I may have jumped the gun in breaking out my hari kari blade this morning when the news of the Supreme Court decision was released. The Commerce Clause itself was spared. The Chief Justice’s opinion actually ruled that the mandate is unconstitutional under the Commerce Clause. Moreover, the States do not really have to set up those exchanges, either, from what I can read, as there is nothing that the Feds can do to them if they do not. The more I read, the calmer I become. Yes, an evil law was mostly upheld, but it did not make a total hash out of the Commerce Clause.

      • Thanks, Jim. I will need to look at the Commerce Clause section to see the reasoning. I wonder which states will actually try and take advantage of the “escape hatch” the Court may have left for them? Certainly not California…

      • Jim, it looks like the Commerce Clause portion rests on the activity/inactivity distinction. To me this is not a silver lining. I would have been happy for them to strike down the legislation if that was the reasoning, but really this reinforces the premise that Congress can regulate pretty much ANY activity under the commerce clause. And, since they upheld the mandate, it’s not worth the price. Thoughts?

  2. “God damn this king!”

  3. Calming down is hard to do. ooooh-ooh-ooooh-ooh-ooh-ooooh. Oh well, singing isn’t helping either.

  4. This is such a disappointment. Who can people turn to now? Romney?

    • I heard he’s railing on the Medicare cuts in the legislation. He’s pretty much hopeless, too.

      • Unfortunately that’s true. I never once considered Romney a man who would repeal Obamacare if it was instituted… he is, after all, the author of Romneycare. At this point only Johnson has a record that matches his stance, whereas Romney wants to come across as a capitalist but his record speaks of mixed economy and statism.

        I honestly have serious doubts about how Romney is touted as “the man who will save us from Obama” if his principles -or lack thereof- are essentially the same.

        In all honesty, the only course of action I can see is preparing Johnson for the next election by giving him a good performance in this one. I do not think Romney will be any better than Obama in the white house- any man who lacks principles is easy to ‘compromise’, and his extremely religious bend already throws him in the path of altruism and sacrifice.

        I know a lot of people disagree, and their argument is that Romney in the White House is better than Obama in it for a second term. Yet a thought keeps nagging away at my brain that getting distracted by the immediate fight will cripple us in the long-term. Putting Romney in office might be a little better than having Obama there… but what do you do after Romney? You still have poison in the House, and if Johnson isn’t bolstered in this election, there is no guarantee that he’ll have a better chance in the next one (which he could have if he got a good show of numbers in this one, which did it for Paul in the last election… and Johnson as a candidate is worth more than Paul.) I worry that in focusing on the short-term fight we are essentially crippling ourselves out of the possibility of ever having something better than this.

      • Don Watkins posted a link to this article (http://www.nytimes.com/2012/06/29/opinion/a-confused-opinion.html?_r=1). If there’s legal precedent for NOT separating the Commerce Clause from taxation, can this ruling be appealed? Does it work like that?

        • No, I’m afraid this Supreme Court opinion is the final word on Obamacare. Someday the Supreme Court, in a different case, may decide to overrule this, and the precedent on which it rests, but I don’t count on that happening anytime soon.

  5. Stephen Bailey

    The Constitution is flawed. It allows the defendant in legal challenges of constitutionality to function as judge and jury in the court proceedings. The people will FOREVER be beholden to their government as long as it is the government that decides whether or not it has usurped (power) that was never delegated to it by the people who own all power via their individual rights to act. The Supreme Court usurped the power to be the ultimate arbiter of what is constitutional in Madison v. Marbury. Madison failed us by thinking an artificial division of government would protect individual rights. He failed to give us the power to overturn our government. Impeachment, as noted by Jefferson, is a straw man. Elections have been rigged sufficiently to guarantee that it doesn’t matter if you vote someone out, the damage they inflicted on the country is not wiped away by their removal from office. Today, elections only guarantee one thing, that statists will be in the majority.

  6. Jeff

    I’m mad as hell, but the bright side (if this can be called a bright side) is that this will only hasten our economic collapse, which is the only thing that will wake America up.

  7. Mark Wallace

    “the Federal Government is no longer one of limited and enumerated powers.”

    – Clarence Thomas (2005)

  8. Thanks for your reading of the ruling and your updates. From my understanding and the understanding of the Conservative / Tea Party email news alerts I get, they are of the opinion that this decision has made it possible for the US Government to force us to buy anything or to do anything, so long as they tax us for it. Heads, you get chains; tails you get whips — and you have to pay extra for them! Ain’t that nice of them?

  9. You use the expression “compulsory taxation”. This is redundancy in extremis. When will Objectivists stop handling taxation with kid gloves. taxation is pure iniatory force against person and/or property by the institution of government. Yes, the sole functions of government are “securing these rights” –“to life, liberty, and the pursuit of happiness” (Jefferson, 1776, Declaration of Independence) and, arguably, being the final arbiter in disputes which have not been settled through private arbitration/ negotiation, etc. How to pay for this service (these services) is the essential question.

    Many possible solutions are out there already. How many more would surface as a voluntary society emerges is anyone’s guess. I have always felt that the most rational individuals with the most skin in the game would gladly opt for voluntary payment to the government for services (securing of rights through a proper legal system) rendered while contributing a little extra for those individuals whose rights also need securing but lack the funds, time, energy, etc. to contribute. Yes, they’re free riders and the benevolence and self-interest of other rational , productive individuals would take care of them–or not, if this future society deems not to–which I doubt,with the historical evidence of American benevolence and generosity as plain as day for those who choose to see.

  10. The full impact of the Supreme Court decision Re ObamaCare is sinking in: The government can now compel you to do *anything* so long as they do it through the tax code. Previously, they could offer incentives / tax breaks to encourage you to do something (buy a house) or offer disincentives / higher taxes to discourage you from doing something (smoking cigarettes /alcohol); but they couldn’t use the tax code if you didn’t engage in the purchase of something. Now the door is wide open for special taxes solely for the purpose of modifying behavior. Don’t want to get married by age 25? We’ll tax you! Don’t want to buy a house at all? We’ll tax you! Don’t want to go to church? We’ll tax you! Don’t want to send your kids to government schools? We’ll tax you! Don’t want to open your webpage to all views? We’ll tax you!

    The list is endless, and it was all brought to you by Conservatives, who claim to be on the freedom side, but don’t mind modifying the tax code to modify behavior. So, in that sense, no, there was no contradiction of the final ruling coming down from a Conservative who drew out that implication and made it explicit.

  11. Here is an interesting argument against the Supreme Court ruling on ObamaCare that I don’t know if I read somewhere recently or thought of for myself. One of the founding principles of the USA is no taxation without representation, and so the Founders put the power to tax in the hands of the House of Representatives. By arbitrarily changing the words in ObamaCare from “penalty” to “tax” the Chief Injustice is arbitrarily imposing a new tax onto the American people, which he has no authority to do. This is certainly one angle from which to challenge the ruling of the Supreme Court, and yes, I would love to see a great tax lawyer take up the challenge and throw it right back into his face!

  12. Thanks Amy. It was really a comfort to read a rational response on this. By the first morning after the ruling, I was already sick of reading mealy-mouthed conservative responses. For instance, George Will wrote an article in the OC Register that spun this as a victory for the right on the grounds that the Chief Injustice supposedly set some kind of precedent that will impose limits on how far the commerce clause can be stretched in order to violate our rights. And, lots of people are grasping at that because they are too horrified to accept the ruing for what it is. I do think there is some kind of a silver lining though, albeit not the type of silver lining that people have been trying to find in the ruling. Here is what I wrote to a friend on Facebook:

    “True, the SCOTUS did not explicitly declare that Congress can directly force us to act under the commerce clause. But I think it is worse that they upheld the law under the power to tax, because it still enables Congress to force us to act, but in an indirect way that maintains the appearance of some vestiges of freedom that do not, in fact, exist. And the ruling is so horrible that many people are trying to use this vestige to convince themselves that they do not live in a cannibalistic society with no limits on the power of government.

    Congress can force you to do or not do anything it wants by simply imposing an operative tax. If you do not comply with its wishes and it taxes 100% of your income and assets, what it amounts to is do what they say or die. But after all, they are just exercising the power to tax — they are not actually overstepping the bounds of the commerce clause. We can console ourselves with that as we are facing the alternative of dying in the streets or living as slaves to the state. Perhaps the issue with the states’ medicaid funding is a small victory as it it upholds some vestige of “states’ rights”: the sacred right of the individual to be eaten alive by a smaller, more localized collective. I feel a surge of patriotism at mere mention of it.

    In spite of all this, I do not feel as angry or depressed as a lot of people I know because it has only reaffirmed what I had already known to be true about the present state of our society. Emphasis on *present*. And that is what I see as the small silver lining: this decision was the logical consequence of altruism (among other evil philosophical elements) — both its liberal and conservative varieties. Roberts et al just couldn’t stand to strike this down amid cries that “people neeeeeeeeeeeeeeed it!!!” They simply had to find some kind of rationalization for upholding the law and the notion that somehow we can have a society founded on contradictory principles of freedom and altruism. We can’t. This is a perfectly logical and expected outcome of that contradiction and the way to use it to our advantage is to point that out to all the people who are horrified by the law and the ruling but who still maintain that it is our duty to provide “some kind of minimal safety net” (forcibly imposed by the state) for “those who are truly unable to take care of themselves.” There is the principle on which Obamacare was upheld. And despite all intellectual acrobatics to the contrary, this is what determines that there neither is nor can be any limits on the power of government in our current ideological environment.”

  13. Robert Cons

    With the SCOTUS ruling on Obamacare, America has been sentenced to death. Will the November election win an appeal?

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