A Vast New Federal Power

Of the 17 lawyers who have served as chief justice of the United States, John Marshall -- the fourth chief justice -- has come to be known as the "Great Chief Justice." The folks who have given him that title are the progressives who have largely written the history we are taught in government schools. They revere him because he is the intellectual progenitor of federal power.

Marshall's opinions over a 34-year period during the nation's infancy -- expanding federal power at the expense of personal freedom and the sovereignty of the states -- set a pattern for federal control of our lives and actually invited Congress to regulate areas of human behavior nowhere mentioned in the Constitution. He was Thomas Jefferson's cousin, but they rarely spoke. No chief justice in history has so pronouncedly and creatively offered the feds power on a platter as he.

No one can know the true motivations for the idiosyncratic rationale in the health care decision written by Marshall's current successor, John Roberts. Often five member majorities on the court are fragile, and bizarre compromises are necessary in order to keep a five-member majority from becoming a four-member minority. Perhaps Chief Justice Roberts really means what he wrote -- that congressional power to tax is without constitutional limit -- and his opinion is a faithful reflection of that view, without a political or legal or intra-court agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of Marshall's big government aphorisms: The power to tax is the power to destroy.

The reasoning underlying the 5 to 4 majority opinion is the court's unprecedented pronouncement that Congress' power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the IRS from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility -- all of which the statute says it is -- but rather is an inducement in the form of a tax.

The majority likened this tax to the federal taxes on tobacco and gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving. The statute is more than 2,400 pages in length, and it establishes the federal micromanagement of about 16 percent of the national economy. And the court justified it constitutionally by calling it a tax.

A 7 to 2 majority (which excluded two of the progressive justices who joined the chief in rewriting tax law and included the four dissenting justices who would have invalidated the entire statute as beyond the constitutional power of Congress) held that while Congress can regulate commerce, it cannot compel one to engage in commerce. The same majority ruled that Congress cannot force the states to expand Medicaid by establishing state insurance exchanges. It held that the congressional command to establish the exchanges combined with the congressional threat to withhold all Medicaid funds -- not just those involved with the exchanges -- for failure to establish them would be so harmful to the financial stability of state governments as to be tantamount to an assault on state sovereignty. This leaves the exchanges in limbo, and it is the first judicial recognition that state sovereignty is apparently at the tender mercies of the financial largesse of Congress.

The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law's most fervent supporters did not make or anticipate the court's argument in its support. Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing. In all the history of the court, it never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.

I wonder whether the chief justice realizes what he and the progressive wing of the court have done to our freedom. If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.

RE :”Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing”

I always posted and said that it was a 50-50% chance this mandate/tax would be thrown out. Why? It looks like a new income tax where those who comply with Obama-care are exempt from. It's progressive based on income collected by the IRS from the income tax refund via the 16th amendment.

If we weren't already loaded down with thousands of federal laws that use tax power to control us (many by Republicans) then challenging it in court would have been easier.

Everyone LOVEs their tax credit.

The Federal Government through a myriad of regulatory agencies (EPA, Energy, OSHA, Commerce etc) virtually licenses every private productive endeavor. Productive capitalism, which depends on free thinking and free to act innovators is being severely inhibited. Neither jobs nor wealth is being created. The creation of wealth correlates best with the establishment of social justice. Government cannot redistribute that which is not produced. Nor can government borrow endlessly to maintain consumption. Given the regulatory maze, the likelihood that any personal gains will be taxed excessively and the joy of being labelled a one percenter if successful, it is no wonder that there is a dearth of wealth creating entrepreneurs. Economic historians will have no trouble identifying the reasons America declined. If the Obama clown parade continues a second term, we will be done.

There were at least three key questions considered in this case:

1) Was the government mandate unconstitutional with regard to the commerce clause? SCOTUS ruled that unconstitutional.

2) Was the government punishment of total withholding of Medicaid funding against states that did not expand Medicaid unconstitutional? SCOTUS ruled that unconstitutional.

3) Was the government mandate penalty constitutional if regarded as a tax instead? SCOTUS ruled that constitutional.

With extreme hypocrisy, after stating over and over again that the non-compliance penalty was not a tax to get the law passed, the Obama administration argued before the USSC that Obamacare was constitutional because the non-compliance penalty was not actually a penalty, but a tax instead, and that Congress has taxing authority. CJ Roberts and the four liberals bought that argument, and thus was born an unprecedented “penalty tax” which releases the government of any restraint to attack the freedom of the people. The government now has a new power to impose a “penalty tax” for any reason, at least if it can argue that it is “for the general welfare of the people” if challenged to SCOTUS.

This is a disaster. This new power of a “penalty tax” granted by SCOTUS will have to be undone by whatever means necessary for the good of the republic.

The RNC had better hammer this until the elections. If this continues much further the people have nothing left to lose.

1. INCOME: The federal government has claimed the right to take 100% of our incomes through the income tax.

2. PROPERTY: The federal government has claimed it can take our properties through eminent domain to sell for government profit. (Kelo v. City of New London, 545 U.S. 469 (2005)

3. MONEY/WEALTH: The federal government has claimed it can take whatever we have left in our pockets as a tax with this latest decision.

Therefore: You can earn nothing, possess nothing, and have nothing if the federal government calls it a tax.

The court also ruled things can be taxed that would otherwise be unconstitutional to make them constitutional. Yes, that was their twisted logic. So, assert your 5th amendment rights, get taxed. The government cannot force you to speak but your silence can be taxed according to this ruling. Doing nothing at all can be taxed.

What’s left to do but dissolve the federal government?

“Well they can do what they want”, HUH?

Well apparently they can. Have you heard one congressman call for impeachment? Oh I forgot when they heard this decision they all went on vacation.

I was never expecting they would overturn this, even if they found the mandate unconstitutional, I expected some other scam to pass it alone, but never did I expect this route.

The GOPe and the rest of the GOP have much to answer for in this disaster, when we need bold responses, they all go on vacation, how cool is that?

...What’s left to do but dissolve the federal government?

I’m not a lawyer or a constitutional scholar by any means, but I think that a constitutional amendment may be necessary to abolish this SCOTUS newly endorsed “penalty tax”. It should also prohibit the Congress from using any “penalty tax” to coerce any activity or non-activity. It may even be necessary to more clearly define the original constitutional limits on the taxing powers of Congress.

Conservatives definitely think that this “penalty tax” is an assault on freedom. And I think liberals will be scared of it too when they no longer control the Senate and White House in 2013 (I hope!). With a new Republican president and a bunch of new Tea Party senators and representatives, they *will* work on passing this amendment. Or, if necessary, a majority of states can call for a constitutional convention to pass this amendment. That’s another reason to cast your vote for conservatives this November and every other election all the way up and down the ticket from your local dog catcher to president.

It might also be a good time to fix some other supposed vagueness in the US Constitution, like:

the right of the *people* to keep and bear arms, as well as a well regulated Militia;

abolishing the idea of “anchor babies”. Only children born of legal US citizens can automatically be granted US citizenship;

to qualify for the office of president, the person must have both parents be US citizens.

AND it might also be wise to consider impeaching the five “Justices” who clearly broke their oath to protect the US Constitution…

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