On this scalding, 100 degree plus day, with wildfires burning ominously across the land, our friends at the U.S. Supreme Court have upheld the Patient Protection and Affordable Care Act of 20101 (a.k.a., It’s Just Another Tax Act). Mind that they did not uphold it, Constitutionality speaking; they just upheld it. It’s a hold-up, with real guns and all. I reread the Constitution this morning and could not find any authority regarding patients or affordable care. Maybe I missed something.
The case is National Federation of Something vs. Cerberus, Dark Lord of the Ministry of Health and Human Taxes.2 It’s a 193-page doozie and not worth reading. If you must, skip to the final two pages wherein Justice Thomas throws up his dissenting hands and screams, “WTF?!” Allow me to save you some time and tears. The Court’s legal reasoning [SIC] goes like this – Congress can do whatever it likes and you have to pay for it.
Just the other day I predicted the individual mandate portion would be stricken. I was right except I did not foresee the Court’s revenue generation angle. I should have. Since the time of Charlemagne the Court has (mis)interpreted the Constitution’s “commerce clause” to justify damn near any action undertaken by Congress no matter how idiotic or dangerous. A few years back the Court tapped the brakes in a case called Lopez.3 Today’s ruling puts us right back on track to statist oblivion. Hooray! The Court decided that while the commerce clause can be used to regulate activity, it cannot be used to compel activity (or non-activity). In other words Congress cannot force you to go out and purchase health insurance. However, none of this matters anymore. The Health Care Tax Act had an alternative provision: buy insurance or pay a penalty. The Court held that the penalty for inaction is just a plain old tax and that Congress has all the authority it needs to levy taxes. Thus, the individual mandate stands, alternatively, indirectly, at the point of an IRS gun.
The commerce clause has given way to or merged with the “tax clause”. From now on Congress can pass any law and require anything of its subjects or, alternatively, just tax them for non-compliance. Unfortunately, I did find Constitutional authority for taxes – potentially unlimited taxes.
The fallout today. The intrepid Republicans have vowed to repeal the law. They won’t. Mittens has vowed to repeal the law and replace it. Replace it with what I wonder. A higher tax? Lower tax? A more Massachusetts friendly alternative tax care scheme? Speaking of the Mittster, several of my “conservative” friends have tried to scare me into joining team Mitt on the premise that Little Barry’s re-election would lead to the appointment of liberal, Constitution-trashing Supreme Court justices. Only Mitt will give us original intent guided, conservative judges – you know, like when W gave us John Roberts. Oops….
Seriously, the old Republic has at long last reached the point where the name and nature of the political parties (if there is more than one) just doesn’t matter. It should now be painfully obvious to all but the dullest television watchers that the federal government wields unlimited power. As Lysander Spooner prophesied long ago: “[W]hether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” And, in a sense, the Constitution now no longer exists. This is unimaginably confounding to one who has sworn to support and defend the Constitution; it’s like a veterinarian swearing to care for dinosaurs, only to discover them long extinct.
Time will certainly cure the injustice done today. In 500 or 1,000 years the Unaffordable TaxCare Act will be but a lousy footnote in history. While there would appear no legal or political solutions left to those of us in the here and now, we may have a few options left. Options with names like interposition, nullification, and secession. More on those later.
1. 26 U.S.C. § 5000(B)(S), et seq.
2. Slip Opinion 11-393, June 28, 2012.
3. 514 U.S. 549 (1995).