A Disaster of Monumental Proportions

Unfortunately, I was away at a conference when the Obamacare decision came down and have not had a chance to blog on it.  In the next several days, I will be blogging about several aspects of the decision.

Let me start out with what I thought should have been obvious: This is a calamity.  Some commentators (who opposed Obamacare and believe that the federal government’s powers should be limited) have suggested that Chief Justice Roberts’ decision has a silver lining.  I disagree.  Chief Justice Roberts’ decision to join the progressive justices to uphold Obamacare is a disaster of monumental proportions.

Before the decision, I was predicting (along with some other knowledgeable observers) that there was a 55% chance that the Supreme Court would strike down the mandate, with a 20% chance of the entire statute being struck down.  The main question was whether Justice Kennedy’s vote could be had.  Because there is so much that is bad in Obamacare (with the mandate in many respects being the least of it, especially if one separates the mandate from the preexisting conditions regulations), the only genuine victory would have been the entire statute being struck down.  Unfortunately, the odds of getting Justice Kennedy’s vote to do that seemed pretty long.

But, amazingly, it turned out that Justice Kennedy was willing to strike down the entire law.  The expected conditions necessary for a full victory appeared to be there.  But then Chief Justice Roberts spoiled that victory by joining the progressives.  In my view, Obamacare is one of the most important pieces of legislation in the last 50 years and among the worst.  It could have been killed.  But due to Roberts, it continues to exist and even if the Republicans win in 2012, it seems hard to be confident that the whole law will be eliminated.  Sorry, there is no way to see Roberts’ decision as anything other than a disaster.

Some have been arguing that Roberts’s decision has a silver lining because it got the entire court to sign on to limits on the Commerce Clause.  Sorry, but I am not buying it.  Let’s put to the side that very few statutes of any importance are likely to involve the power to require purchases.  So let’s assume a really important statute does involve this power.  Let’s imagine that Congress passes a law comparable to Obamacare – call it Obamacare II – that penalizes the purchase of a commodity but for political reasons cannot call the penalty a tax and makes clear in the statute that the law does not impose a tax.  (Hey, wait, didn’t that happen already?)  In that situation, does anyone really believe that the progressive justices would not dispense with this precedent in a heartbeat and approve the next holy grail of liberalism?

They might distinguish the precedent.  Or they might simply overturn it  (Let’s not forget that the Supreme Court’s precedent doctrine gives the Court significant discretion to overturn pretty much anything they want to.)  The limits announced in this decision will no more stop a second Obamacare than United States v.  Lopez’s symbolic language prevented the Court from approving Congress’s power to prohibit medical marijuana.

When you have been defeated, there is little point in denying what has happened.  Let’s face it.  It is a disaster.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Brett Bellmore says

    Thanks. All this talk of silver linings and clever tricks has me wanting to barf. Nothing clever took place here, there are no silver linings. We just lost, period, because the Chief Justice took a dive. Anything we might happen to like about the the ruling means nothing, because no precedent in it will stand if the liberal wing of the Court gets five votes.

    I might add that there’s no particular reason to expect even Roberts to uphold his ‘clever’ precedents in another case. Place no reliance on “limits” not reached in the present case, they’re liable to be moved the moment they’re reached.

  2. Richard Schweitzer says

    A bit of grist for this mill:

    As things now stand an Act of Congress establishing a *single* form (benefits, costs and conditions) of something called “Health Insurance” (which really transfers more costs than risks) would not contravene the provisions of the Constitution (under the Commerce Clause).

    An Act of Congress prohibiting the attaining or providing of “healthcare” in any of its forms or services by any means other than as provided by that *single* form would not contravene the Constitution.

    An Act of Congress imposing a “tax” on only the members that class of persons (established by various “exclusions,” “waivers,” and other economic measures) who do not purchase that *single* form (and quite likely who acquire any other means of attaining “heathcare” by contract or other wise) does not constitute “coercion” contravening the Constitution, because imposition of taxation is within the broad powers assigned to Congress. Of course, there is no limit to the degree of taxation (the “power to destroy”) that may be imposed; and the punishments for failure to pay (say, an extreme tax) could include imprisonment.

    However, let us rejoice, Congress can not “coerce” the grand collectives of the several states by the fashion in which it * appropriates * the monies of taxation of individuals (and from borrowing against their future taxes).

    Do we need to amend our Constitution?

  3. libertarian jerry says

    Professor Rappaport I agree with your sentiments 100%. But what you must realize is that your sentiments are about 100 years too late when it applies to income taxes.,about 75 years too late when it applies to Social Security and about 45 years too late when it applies to Medicare. Once the Income Tax (16th Amendment) became Law, thus allowing the government,with your voluntary consent,to go into your paycheck,business,bank account,investments or any property that you own,under the color of the law,and take whatever they want,whenever they want it and for any reason that the government deems necessary then the argument against Obamacare is mute. This is because Obamacare was sold as a tax. The same with Social Security and Medicare which are legally Income Taxes.on the individual and Excise Taxes on the individual’s employer. See the Brushaber,Steward Machine Tool and the Helvering Decisions(plus others decisions)by the Supreme Court. What makes this all Constitutional is your “voluntary compliance” by obtaining and having a Social Security Number and by the voluntary filling out and filing certain Tax forms Forms such as W2,W4,1040,1099 and so forth. By having a Social Security Number and filing the various Tax Forms your telling the Governments tax collecting arm (The IRS) that you have declared “Taxpayer Status” and will conform to the best of your ability to the rules and regulations of the 75,000 plus pages of the Internal Revenue Code. This is why at the bottom of almost every Tax Form ,where you sign on the dotted line,is a perjury clause that the government can hold against you for future legal actions. If the government, in their regulations,mandate that you must buy a Health Insurance policy or be fined(taxed)so be it. Nobody puts a gun to your head to make you obtain a Social Security Number or to fill out the various Tax Forms. You do it volunteering. That “voluntary compliance” is what makes it legal and fitting of Constitutional muster. In essence you volunteer to give up your 4th,5th and 13th Amendment Rights(among others) to become a “taxpayer.” Whether or not you cannot obtain a job or start a business or open a bank account or obtain a drivers license or do a thousand different things without a Social Security Number is besides the point. Is it any wonder that the Federal Government has hired an additional 16,000 IRS agents to police compliance with Obamacare. Of course Congress has the power to end all or part of Obamacare as well as Social Security and Medicare/medicaid. With a 60% majority and no Presidential Veto almost any Federal Program can be terminated. Of course any action along these lines by the Congress would probably lead to political suicide and riots in the streets. Yes Obamacare is a mistake as was the Income Tax,Social Security and Medicare. Unfortunately at this time in American history we can do very little to change things. We just have to stand back and watch the nation bankrupt itself and then hope to change things for the better at that time. As that time approaches I’m afraid to say that a majority of Americans will clamor for Marshall Law and a dictator to “make things right.” A sad state of affairs. One can only hope. But I’m afraid its too late.

  4. ThomasD says

    This ruling is worse than a simple loss. Roberts has just given Congress the power to dictate any manner of personal behavior via the imposition of taxes, with no defined limit to the value of such taxes, nor limit on the number of taxes imposable, and with perhaps the only limit being specific clearly enumerated rights.

    The only thing that prevents this from effectively being a police power is our bankruptcy law and current lack of debtors prisons. If Congress were to pass legislation allowing for incarceration over unpaid IRS debt then this ceases to be such a limit.

  5. Eric Hodgdon says

    The natural progression is continuing, as designed, as desired. Party politics with just two choices is this country’s weakness. “We just lost, period,….”
    But it’s what you all want, is it not?
    No alternative thinking is allowed. Just limited, party groupthink. Two kids in a sand box is what there is.

    Let’s start a war and torture people. Let’s beat-up protesters. Let’s give military hardware to the police. Let’s build a massive data center in Utah. Let’s deregulate the economy to increase the wealth of those who already have too much.

    This is the way people want the nation run. They want leaders and rulers and all the latest military hardware money can create. They want limited representation to the point where limited thinking prevails.

    This IS what you want.

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