An Unmitigated Disaster for America

The SCOTUS decision on Obamacare is an unmitigated disaster for America. Here’s why:

1. IT INVENTS A NEW, EXPANDED DEFINITION OF THE POWER TO TAX. Roberts firewalled the expansion of the Commerce Clause, but redefined a mandate as a “tax.” Now the Left no longer needs the Commerce Clause to do anything it wants. Leftist social engineers can run (and ruin) our lives via the Tax Clause.

The constitutional power to tax has never before been used to control private behavior, only to fund functions of government. Roberts INVENTED a huge new cudgel that the government can use to oppress and bully the people. Government WILL use it against us in ways we do not now imagine.

Libertarian attorney Jacob Hornberger rightly a called the Constitution “a barbed-wire entanglement designed to interfere with, restrict, and impede government officials in the exercise of political power.” That is the Founding Fathers’ view. By contrast, Roberts took it upon himself to EXPAND federal power in a previously unheard-of direction.

John Yoo of the U.C. Berkeley School of Law has a great Wall Street Journal piece called “Chief Justice Roberts and His Apologists.” Here’s an excerpt:

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 . . . the mandate is transformed into a constitutional exercise of Congress’s power to tax. . . . Justice Roberts may have sacrificed the Constitution’s last remaining limits on federal power for . . . a little peace and quiet from attacks during a presidential election year.

2. REPEAL AND REPLACE IS A LONG SHOT. A friend of mine confidently told me, “No worries. We’ll win the election, and Obamacare will be repealed and replaced by the next administration.”

First, I’m not confident Mitt Romney will win. He has a limitless capacity for unforced campaign errors.

Second, even if he wins, it’s unlikely Obamacare will be dismantled. No government program, once established, has ever been dismantled in the history of the republic. Ronald Reagan couldn’t fulfill his promise to dismantle the Dept. of Education, even though it had been established just a year earlier by Jimmy Carter. The forces against repeal will be brutal. I don’t think Romney and Boehner really believe they will “repeal and replace” Obamacare, but it does make great election-year rhetoric.

Our best chance of dismantling this unconstitutional, oppressive socialist scheme was in the Supreme Court. Now that chance is gone.

3. ROBERTS’ RATIONALIZATION TWISTS THE CONSTITUTION. Some apologists for Chief Justice Roberts suggest that he crafted this tortured decision in order to safeguard the reputation and stature of SCOTUS. If so, then he protected SCOTUS at the expense of the nation and the Constitution. The best way to safeguard SCOTUS is to safeguard the Constitution. By concocting a transparently phony rationale that a mandate is a tax, Roberts got friendly media coverage, but did violence to the Constitution. If Roberts crafted this rationale in order to improve the reputation of SCOTUS, he’s lost his perspective on why SCOTUS exists.

4. WE CAN’T RELY ON ANTI-TAX SENTIMENT. Some have suggested that if people don’t like being taxed to pay for Obamacare, they can simply vote to change Congress.

Problem: We’ve reached the tipping point where anti-tax sentiment in America is a minority position. Most Americans pay no income taxes, and have every reason and incentive to vote increased taxes on those who do pay. Voters won’t vote to change Congress if they like getting freebies from the government at the expense of fellow taxpayers.

What about people who can’t pay the Obamacare mandate “tax”? The rest of us will pay it for them. The middle class will get soaked, as usual.

5. THE FOUR DISSENTERS ON THE COURT MAKE A COMPELLING CASE THAT THIS IS A DISASTROUS DECISION. Justices Scalia, Kennedy, Thomas, and Alito wrote:

To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. . . . The Constitution requires tax increases to originate in the House of Representatives . . . the legislative body most accountable to the people. . . . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. . . . Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

The devastating logic of the dissenters trumps the slippery reasoning of Chief Justice Roberts. This decision is a complete disaster, and I have very little confidence it can ever be undone.