Saturday, June 30, 2012

The Aghast Chorus Grows

I wondered in my first (and until now, only) post on the Supreme Court's ruling on Obamacare why conservatives were not aghast at the radical expansion by the Court of Congress' taxation power.
The point I don't see other commentators getting is this: the ruling means that Congress now has unlimited power to tax. Congress now has the power to tax absolutely any activity or inactivity by individuals.
Now law Professor William Jacobson cites several commentators who say the same, for example, the editors of the Wall Street Journal:
[E]ven the five votes limiting Congress under the Commerce Clause pale against the Chief Justice’s infinitely elastic and dangerous interpretation of the taxing power. Nancy Pelosi famously said we need to pass ObamaCare to find out what’s in it. It turns out we also needed John Roberts to write his appendix.
Tax law Prof. Paul Caron, writer of TaxProf Blog, has more, including a link to this observation by John Yoo, professor at the University of California at Berkeley School of Law:
Some conservatives see a silver lining in the ObamaCare ruling. But it's exactly the big-government disaster it appears to be. 
Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.
Which is exactly what I said Thursday:
So does the Congress have the authority to make us eat broccoli, as one justice asked the solicitor general during the hearing? Now we know the answer: without question the Congress now enjoys the power to make us buy broccoli, whether we eat it or not. Don't buy it? Pay a special tax. 
Congress has the power now to make everyone drive a white car - or pay a special tax if they don't.
Ilya Somin, associate professor of law at George Mason University Law School, who wrote an amicus brief urging the Supreme Court to strike down the law, wrote in The New York Daily News:
Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate shows that the Supreme Court takes constitutional limits on federal power seriously - but not seriously enough. As a result, Congress now has the power to impose a mandate to do almost anything, so long as it is structured as so-called “tax.” 
That ruling both misreads the Constitution and gives Congress a dangerous new power. ... 
Pretty much any other mandate could be magically converted into a tax by the same sleight of hand - so long as the penalty for violating it is a fine similar to the one that enforces the individual mandate. The danger here is not just theoretical. Numerous interest groups could potentially lobby Congress to enact a law requiring people to buy their products, just as the health insurance industry did.
And because of this state of affairs, the last shred of national sovereignty passed on Thursday from the hands of the people of the United States to the desks of the Congress and by extension the executive. We are now subjects, no longer citizens. 

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