A surprising number of conservative commentators have come out cheering the ObamaCare decision because it ruled that the Commerce clause in the Constitution – Congress’s power to regulate commerce across the 50 states – doesn’t empower our legislators to force us to buy things (in this case, health insurance).
Of course, Congress can require those who propose to engage in regulated activities to purchase things, as a price of doing business. But ObamaCare forces us to buy insurance just because we woke up one day and were citizens of the United States (and earning a certain income and not covered by insurance our employers have to buy).
The real decision
SCOTUS has said Congress can do that. Focusing on SCOTUS’s repudiation of the Commerce clause justification is pursuing a gigantic red herring. Who cares what the Commerce clause allows, if SCOTUS says Congress can make us buy stuff anyway?
The Commerce clause has been made irrelevant by this ruling. Chief Justice Roberts found another way to justify Congress making us buy stuff. No one will ever have to invoke the Commerce clause again to propose a law that makes us buy stuff. Regardless of what stuff we have to buy today, any Congress in the future can make us buy other stuff. All Congress has to do is impose a monetary penalty if we don’t buy the mandated stuff, and SCOTUS will call it a “tax.”
The victory for the Commerce clause is the Pyrrhic one here. Another such victory, and we are lost.
Tax versus mandate
A purchase mandate and a tax are two different things. It seems silly to have to lay this out, but apparently there are a lot of people who are confused. What distinguishes a tax from all other requirements is that its first-order effect is producing revenue for the government – not because the citizens engage in any particular activity, but because the government needs revenue, and chooses one or another basis for levying a tax to produce it. To gain tax revenue, the government surveys what the citizens do and chooses to tax some of it. A tax is not something that arises from government-mandated activity, nor is it levied because of what people choose to do. You may choose to buy milk and have to pay a sales tax on it (in some states), but the tax isn’t imposed because you buy milk, it’s imposed because the state or local government needs revenue.
There are other ways – non-tax ways – in which we send money to the government for various things. We pay fees, for example, to operate businesses or get driver’s licenses. We pay speeding fines. We buy hunting licenses. We pay fees to register private vehicles and boats. We get fined for particular transgressions, such as littering or polluting. All of these ways of handing money over to the government are contingent on us choosing to do something. If we don’t choose to do it, we don’t fork over money to the government.
Taxes are a different matter. Their existence doesn’t depend on us wanting to “do” things, or doing wrong things, for which a fine is imposed; they exist because government needs revenue. Taxing income, sales, cigarettes, liquor, gasoline, property, etc is intended to produce revenue, on a regular and somewhat predictable basis.
The purpose of the ObamaCare insurance-purchase mandate is not to produce revenue for the government. It is not a tax, by any valid definition of “tax.” It doesn’t tax sales. It doesn’t tax goods. It doesn’t tax income. It doesn’t tax property. It doesn’t tax activity (e.g., federal taxes on commercial airline flights or landline services). It mandates that certain citizens buy something from commercial vendors, and it fines them if they don’t. In that way, its closest analogue is the requirement of the various states that drivers maintain auto insurance. That’s not a tax, and has never been held to be one. And even that analogue is imperfect, since no one who doesn’t own a vehicle has to maintain the insurance.
I really wish Republicans would stop cynically chanting that Obama has broken his pledge on taxes with the ObamaCare legislation. (And for the Republicans doing it foolishly, because they don’t understand or care that there is a significant difference in law and our philosophy of government between a tax and a purchase mandate: you guys stop it too.) This battle can’t be won if we concede that any old way of being ordered to send money somewhere at the government’s direction equals a “tax.”
Get this if you get nothing else
Understand this: it doesn’t matter if ObamaCare is repealed next year. Repeat as necessary until understood. The SCOTUS ruling is on the books. Congress can make you buy anything, as long as it fines you if you don’t. The concept of constitutional limits on the power of government has been effectively removed from our guiding idea of law and jurisprudence.
As the vice president would say, this is indeed a big effing deal. We have reached the end of the quiescent consensus on which we conducted most of the 20th century: the consensus by which we tacitly agreed that the encroachments of government – with big surges under Wilson, FDR, LBJ, and Nixon – weren’t a menace to constitutional protections for our liberty and rights. The consensus was that we had those protections, and could therefore afford to hover at the precipice in the certainty that nothing could push us over it.
But now something has. If we abide by our judicial tradition, this SCOTUS ruling will govern the rulings of the future. Congress has been accorded a colossal power. All it has to do to use it is impose a fine if we don’t buy whatever Congress says we have to.
What we will have to think about
Here are some questions we will have to grapple with. What is our view of jurisprudence? In the 19th century, Americans did not see judges as infallible, or the courts as the sole and final arbiters of what the law means, as if Congress just dispatched some monkeys to produce our laws on a bank of typewriters, and we had to wait for the Supreme Court to organize the unintelligible mess for us and tell us what it meant. SCOTUS was never intended to be a Delphic oracle. We have come to treat it as one, however, and now it has handed down a ruling that will destroy our concept of natural rights and limited government. What are we to do about that?
Can we discipline ourselves to speak as if words have meaning, and the content of the law matters? Republicans have behaved just like Democrats by immediately jumping on the “Obama broke his promise on taxes” bandwagon. In this instance, he didn’t break his promise on taxes. He and Congress imposed a mandate that violates the American principles of limited, constitutional government. That’s not a broken promise; it’s a bad use of the executive and legislative power. Call it what it is, not what seems convenient for campaign sloganeering.
Words and concepts matter. There is no accountability, for government or anyone else, if they don’t. Can we come to grips with the damage we do by letting the sentimental, imprecise use of words become our form of governance?
The biggest question we have to answer for ourselves is whether we really believe in limited government. If we do, how do we approach our current problem? Our national tradition over the last 100 years gives us no solution. By that tradition, we are required to abide by a SCOTUS ruling that makes the character of Congress the only thing standing between us and a fatal expansion of government power. (David Brooks lauded that outcome very specifically on Thursday.) In other words, we have become ancient Athens.
The Framers didn’t mean for that to be the case. They wrote limits on power, separation of powers, and checks and balances into the Constitution precisely so that the character of the legislature (or indeed, the character of the other two branches, in their separate capacities) would not be the sole determinant of everything that happened to us. They took as their example of legislative bodies run amok the ancient Athenians, and intended – with great and sincere determination – to prevent transient legislative majorities from bankrupting and destroying the new nation.
Do we now have any remaining feel for that purpose, in our consciences as Americans? Do we no longer agree with the proposition of constitutional limits? Is John Roberts, born in 1955 – and therefore educated starting in the 1960s and the years afterward – an example of what the American feel for constitutionalism now is?
Where do we go from here?
Suppose we do have a better feel for it than the Chief Justice. What is the way to proceed, to invalidate the SCOTUS ruling on ObamaCare? This is an important question, and there are drawbacks with either of the most likely methods.
One is for the Supreme Court to rule differently on a case trying similar issues in the future. This method would have the virtue of leaving the judiciary to correct itself. But it would also be likely to involve issues that are not perfectly identical or even analogous, which would make application of the ruling uncertain. If the judiciary behaves the way it usually has, correcting the ObamaCare ruling for any useful purpose would be a lengthy process requiring a number of separate rulings on related matters over time.
We should not despair of a different Supreme Court ruling differently on the same matter in the future. Supreme Courts throwing out precedent – e.g., on the interpretation of the 9th and 10th amendments – is how we got to where we are today. It can happen. But it’s a big philosophical question whether that’s the best way to correct the ObamaCare ruling. The judiciary has not, over time, been nearly as unified and single-trending as today’s shallow education leads Americans to think, but there has nevertheless been a certain coherence to the body of jurisprudence, even where many Americans continued to disagree with specific rulings. A spectacular reversal might be popular, but what would it say about the integrity of our idea of law?
I’m not enamored of that possibility, but there are issues with a constitutional amendment as well. As big an undertaking as it is, I see an amendment as the quickest and most effective way to clarify that Congress does not have the power to levy a purchase mandate of the kind embedded in ObamaCare. Probably the biggest drawback with an amendment is the precedent it would set for adding such clarifications to the Constitution. How many would we end up needing, to fend off all the federal mandates that may creep up on us? A prohibition on a purchase mandate seems very general, but there’s no telling how many permutations of a sort-of-almost-not-quite purchase mandate Congress could come up with, to get around the amendment – and the people would still have to funnel money by mandate to Congress’s chosen goods or services.
That said, an amendment may be the way to go. I am quite sympathetic with those who don’t want to just keep adding to the Constitution, but we have added very little to it in the much-changed political environment of the last 80 years. The Constitution was written in a world in which many of the things people want to do with government today were unimaginable. Those things have now been imagined, and it may in fact be time to update the Constitution. That’s what we did with the 13th, 14th, and 15th amendments: update the Constitution to reflect our national posture on emerging developments. The 14th amendment may have been abused in the 20th century, but it was good law, in my view, clarifying the minimum that it meant to apply the law equally in a land of former slaves. The Civil War amendments were added because big things had changed.
Big things have certainly changed in the last 80 years, and the chief result of legislation and jurisprudence has been ignoring or finessing the Constitution’s limits on government. My preference for updating the Constitution involves affirming limits on government – in particular, the federal government – in the context of modern ideas about using it for absolutely everything.
I am not sure that a single amendment, or two or three, would accomplish everything that is needed. I’ve been thinking about a private citizens’ “constitutional convention” for a number of years now: a convention to approve and propose a small set of amendments to the US Constitution. The idea would be to get legislators and presidential candidates to endorse the proposal, and a critical mass of them to push it in Congress, and perhaps prompt another official constitutional convention, which would adopt them. (I believe others are thinking about this as well. Please chime in if I haven’t mentioned your effort.)
Obviously this concept could have dangers with it, but it resonates with me because of my sense that we can’t keep going down the same path and hope for a course correction. Leaving Congress to focus on thousands of minute regulations, with executive agencies doing basically whatever they want, and with the media picking over all the proposals and screaming bloody murder about some while hailing the Second Coming as regards others, isn’t working for us. We need to get law and government, and our idea of law and government, back onto a more accountable footing.
No one will do this for us. Those who take up the challenge will be called names and railed against, no matter how lawfully and peacefully we go about it. We can expect the shrillest and most vituperative of opposition. I have offered one suggestion, but I firmly believe that many heads produce wiser counsel, and I would very much like to hear other suggestions as well. Working, initially, outside of the regime of politics – Democrats, Republicans, sentiment, cynicism, vote-getting and horse-trading – is essential if we are to have integrity in definitions and prescriptions. The process must be about limiting government, and how to do it. But ultimately, the point is to garner political support for an updated American affirmation of limits on government.
There are undoubtedly multiple ways to go about this. But there is only one thing that will give us the time to embark on it, and that is defeating Obama at the polls in November.
About the Author: J.E. Dyer is a retired US Naval intelligence officer who served around the world, afloat and ashore, from 1983 to 2004.
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