Thursday’s shocking Obamacare decision caused me to reminisce about my time on the federal bench ten years ago. When I was a United States Magistrate Judge, I took the same oath of office that every federal judge and justice in the country swears to. I swore to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same. . .”
That oath is anchored to the phrase, “Constitution of the United States.” If the Constitution changes over time by an activist majority of the Supreme Court, then my oath was essentially an oath to the Supreme Court, not to the Constitution. Of course, that’s not what the Founders intended. The Supreme Court was never designed to be the pinnacle of federal power.
But that’s where we are today. Chief Justice John Roberts, appointed by President George W. Bush in 2005, wrote the 5-4 opinion saving Obamacare and causing President Obama to declare “victory” and pundits to say that his administration has been “vindicated.” Incredibly, Roberts determined that the government, under its taxing power, has the right to “impos[e] a tax on those who do not buy [a] product,” in this case, health insurance.*
From the bench Thursday, Justice Kennedy issued a scathing denuciation of Robert’s reconstruction of Obamacare: “The majority rewrites the statute Congress wrote … What Congress called a penalty, the court calls a tax.” He concluded that “The law is invalid in its entirety.”
The chief justice’s rescue of the individual mandate is a massive expansion of federal power, now permitting the federal government to regulate, by taxation, its citizens’ “failure to act” or passivity. I challenge you to go back to the first 150 years of U.S. jurisprudence and find any Supreme Court opinion that would suggest such a construction of Congress’s power to tax and spend under Article I, Section 8 of the Constitution.
In his powerful dissent, Justice Scalia agreed that this power grab was unconstitutional:
What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States.
And then the zinger:
Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.
In other words, when the federal government is allowed to tax non-activity, what powers are left to the states and the people under the Ninth and Tenth Amendments? Not much.
But even more basically, Roberts and the four more liberal members of the bench are all starting with the assumption that the federal government can tax and spend for things outside of its enumerated powers, misconstruing the “general welfare” clause of the Constitution. James Madison apparently disagreed, suggesting that the clause “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section.”
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