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  • Obamacare Silver Linings: A Limited Victory for Limited Government

    Today’s Supreme Court decision on Obamacare—though it is tragic with regard to statutory interpretation and health care policy—has two significant constitutional silver linings. At the constitutional level, the stakes are much more significant and resistant to political influence. In short, the American people may elect new representatives to repeal Obamacare, but today’s constitutional rulings are far more enduring. And they are, on balance, wonderful.

    The Court is inexplicable in reading the mandate penalty as a tax when President Obama and congressional sponsors emphatically denied it was a tax, but that is only a misreading of a statute. On that statutory ruling, the Court majority held that the mandate penalty is not a tax for purposes of the tax Anti-Injunction Act, but is a tax under Congress’s taxing power, despite the fact that the law never calls it a tax. Yes, this is a terribly strained reading of the statute, but conservative constitutional scholars who challenged the mandate never said that Congress did not have the power to enact a tax similar to the mandate penalty.

    Despite the Court’s error in reading the individual mandate penalty as a tax, five justices opined that the mandate, standing alone, cannot be justified under the Commerce Clause or the Necessary and Proper Clause. This is not remarkable to anyone who knows the original meaning of the Commerce and Necessary and Proper powers, but it is a serious blow to 90 percent of the legal academics and about 90 percent of Congress, since these have been the clauses used to justify so much of the modern administrative state.

    On the pro-government side of the ledger, Chief Justice Roberts goes too far to expand the reach of Congress’s taxing power. That is not a good development by any means, but the Framers understood that there are at least some political checks on the use of the taxing power. This is one reason why President Obama and the liberal sponsors of Obamacare tried so hard to deny that it was a tax. One political reality of today’s decision is that the Court essentially reads Obamacare as a massive tax increase, which falls most heavily on the middle class. Didn’t someone promise not to do that?

    The majority’s ruling on the onerous conditions attached to the Medicaid expansion is also helpful in limiting Congress’s power to bribe states into submission or to threaten them with the loss of federal revenue in a long-run federal-state program. In a fractured set of opinions that will take some additional time to untangle, a majority of justices imposed limits on Congress’s ability to threaten the denial of previous funding streams based on states’ agreeing to new funding conditions in those programs. Indeed, seven justices seemed to agree that some constitutional limitations were breached in the Medicaid expansion. This itself is a landmark ruling.

    Liberal legal scholars are not going to like most of today’s constitutional rulings; their wailing will start pretty soon. In the long run, today’s constitutional rulings will be seen as an important victory in promoting fidelity to the Constitution and the ideal of limited government. The American people and their elected representatives have a lot of work to do to repeal and replace the Obamacare statute. Moreover, we still have an uphill battle to restore and preserve the written Constitution we have been bequeathed, but the Court today put some temporary brakes on our republic’s descent down an extra-constitutional slippery slope in which the federal government can control any aspect of our lives that has any imaginable impact on commerce—meaning everything.

    Today the hard work continues, as Benjamin Franklin long ago urged, to “keep” the Constitution the Framers granted us, with its ideal of limited government. But in the days that come, I think we should go forward with more hope that the struggle is both worthy and manageable.

    Posted in Featured, Obamacare [slideshow_deploy]

    12 Responses to Obamacare Silver Linings: A Limited Victory for Limited Government

    1. Edward says:

      I see a new precedent that the Federal Government can tax us for not doing what they want us to do. You call it a silver lining?

      • Matt says:

        erm… They want us to quit smoking? increase taxes. They want us to consume less alcohol? increase taxes. They want us to drive less, get rid of muscle cars and "gas guzzlers"? increase taxes…
        They want us to eat less "bad food"? increase taxes…

        Nothing new there. The voters need to send representation to Washington to repeal taxes. (gut obamacare) and elect a Conservative President.

        Roberts was very shrewd in his manipulation of the decision. Whether Romney and the GOP will come out fighting and capitolize (intentional spelling) on this remains to be seen

        • Kahr50 says:

          You see the pattern here? All of your examples are taxes on 'something'. Cigarettes, Alcohol, Food – even our income tax is a tax on our work time – a concrete thing.

          Thsi "tax" is a tax on what? It is a 'tax' on nothing.

          If you are born, age to 16, ger a job that makes you eligible to pay taxes, but all you do is work and go home and sit – do nothing – and fail to do something – namely purchase health insurance, your total lack of activity – or nothingness – is now taxable.

          We must take the POTUS and Senate to repeal this abomonation.

        • Steve Howell says:

          You forgot the impending taxes on owning a gun or buying ammo.

    2. Jan says:

      Brilliant! History will understand that Justice Roberts deliberately took a bullet in the defense of the Constitution when the battle was almost lost. The rest of us conseratives who believe in and long for retun to the founding principles, should seize this opportunity to make it clear to the electorate that it is Congress that is our greatest problem. Obama did not enact Obamacare–Congress did. The president has great influence, but still lacks the power to enact the legislation. Many more people will be angry and interested in voting conservatrive when they realize how this law affects them. They will blame the Judiciary. Who cares–just so they vote conservative? If so, I will smile and thank Justice Roberts.

    3. photius1 says:

      One only needs to read the Presidential Veto Message by American Founding Father James Madison to confute the modern misunderstandings of the United States Constitution:

      VETO MESSAGE.
      To The House Of Representatives Of The United States:
      March 3, 1817.

      Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,”1 and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

      The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

      “The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

      To refer the power in question to the clause “to provide for the common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

      A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

      If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill cannot confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
      I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

      (Source: http://oll.libertyfund.org/title/1939)

    4. judyw says:

      Really good post. This morning, the next day, I've read several pieces making similar points, but I didn't see anything but this one written less than three hours after the decision was released. Fast reading and fast thinking, Todd.

    5. Lloyd Scallan says:

      Mr. Feulner, nice speech. Now what? When we're loosing this game 55 to 0, a rah rah half time speech will not help us win when the other team has professional bone brakers playing and the refs are flaging us on every play. Since you see a "silver lining" in this beat-down, I guess you feel Viet Nam and Korea also had silver linings?

    6. Mike, Wichita Falls says:

      I love listening to the statists manipulate this ruling.

      The mandate is necessary because of free-riders…but they have not one issue with nearly half of the citizenry free-riding the other half through some sort of welfare program and/or paying no income tax. They know that term has traction with a majority of the electorate, and they use it to justify their back-door entry to a single-payer system.

      The mandate is not a tax…but that's the only way Obamacare was upheld in court. What's the difference between paying a tax, fine or penalty and buying something I don't want? I still have less disposable income or go to jail thanks to this law.

      If Obama wants to get the "no middle-class tax hike" monkey off his back, then simply tell Harry Reid to pass the House's repeal bill and send it to him to sign. Otherwise, if he really wants to keep the law, then he must be saddled with this tax hike all the way to November. Why is he so ashamed of it when he plans to let the 2001/2003 tax cuts expire?

    7. Jennifer Lambert says:

      The problem with Obamacare is that the concept of affordable healthcare or "free" healthcare is so appealing that many Americans are blind to the intrinsic evil of a government forcing a product on its citizens, even violating some people's consciences. It is an abominable thing. The majority of Americans oppose it, yes, but the influential power of the liberal media could change that.

    8. Charles Hoffman says:

      A silver lining? On the casket that was our liberty, life and our individual pursuit of hapiness?. The SCOTUS ruling defies logic and the confines of the record in judicial review. There is nothing good in this ruling. Nothing. Our Constitution and Bill of Rights were waded up and circular filed with this abomination. No, sir there is no silver lining. We are no longer a nation ruled by laws but now a nation ruled by the very flawed and whimsical. What a disgrace. A tyranny of taxation ad infinitum has been established with this ruling. No lining can contain the stink of this administration, congress and court.

    9. MacelloJoe Passetti says:

      What is all this bunk about Penalty v. Tax, "Void for Vagueness"—-the Commerce Clause's use as a tool for requiring everyone to have Health-care? The Catholic Hospitals must provide Contraceptives for Women, etc., etc.–What about the Contract Clause! "Freedom of Contract-the liberty or ability to enter into contracts with others. Freedom of Contract is a basic and fundamental right reserved to the people by the Fifth & Fourteenth Amendments to the Constitution which prohibit the deprivation of Liberty without Due Process of Law, –32 F. Supp. 964, 987, except for legislative regulation in the "interest" of health, safety, morals or welfare which makes it thereby N/A. The Police Power is reserved to the States not the Feds! So if you want to stop E.R. abuse track down the abusers and make them pay then or when they have the money!

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