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 We’ll win the election, and Obamacare will be repealed and replaced by the next administration.”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.


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.

Leave a comment


  1. Good news! There are some countries left where you can escape the tyranny of socialized medicine. They include Haiti, Turkmenistan, Bangladesh, and almost every country in Africa. Send us a postcard.

  2. Re: “There’s nothing funny about people dying.” Exactly my point. “Send us a postcard”? Funny line. Reality of socialized medicine? Rationed care and death—not funny at all.
    And the SCOTUS decision also expands the government’s power to use taxes to control our private behavior. Really not funny. And I’m not laughing.

    • I’m going to go out on a limb here and guess you haven’t actually experienced health care in another country.

      • Hi again, Joe. If you have a point to make, you’re more than welcome to make it. I don’t answer personal questions on my blog, and I don’t know what you’re trying to say.

      • My point would seem to be that you’re unqualified to compare our health care system to the many other countries with socialized medicine. As someone who’s actually experienced European health care first-hand (in third-world Bulgaria, mind you), I can tell you that they would never deny care to someone because he didn’t have enough money.

        The infrastructure and equipment from the Soviet-era hospital was quite outdated, but after a week of in-stay treatment for pneumonia that included X-rays, a private room, and an ambulance ride, my girlfriend’s bill came out to about 100 US dollars (by comparison, my 10-hour stay in a US hospital for pneumonia was about $1,000). The doctors looked at me like I was crazy when I told them that neither of us had health insurance.

        It’s a similar situation for me now in South Korea. I recently watched my girlfriend (who apparently has the worst luck abroad) get a wisdom tooth pulled for a $10 copay. A week’s worth of medication came out to about $3.

  3. I never compared our health care system with that of other countries. You did that with your “send us a postcard” remark. I posted two links to articles about the NHS in Great Britain, which is more or less what Obamacare will look like. So I compared NHS to Obamacare, but not the present health care system to that of any other country.

    I don’t defend the present health care system. It’s a mess. It needs overhaul, but not an overhaul that takes away freedom. Using the IRS to control the private behavior of the American people is not a solution. That’s oppression.

    Obamacare is also going to add trillions to an already unsustainable debt and unfunded entitlement liability. When something (such as the U.S. economy and financial system) is unsustainable, that means that at some point it will cease to be sustained. It will collapse.

    Two closing thoughts:

    “The government solution to a problem is usually as bad as the problem.” –Milton Friedman

    “Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.” —C. S. Lewis

    • So, you cited articles about the health care system of another country, but you never meant to compare our system to other countries’? I changed my mind — you are funny.

      The CBO estimates that Obamacare will actually reduce the deficit by billions of dollars over the next ten years. I’m tempted to believe them given that I’m living in a prime example of employer-based health care. South Korea spends 6% of GDP on health care — the US spends 15%, the highest in the world. You’ve likely already heard and ignored these talking points.

      Helping sick people isn’t the first thing I think of with the word “tyranny.”

      • I explained this to you in the previous post, and it is also perfectly clear in my original post. The articles I linked compare Britain’s NHS to Obamacare, not to the present healthcare system. If you are still unable to comprehend the distinction, ask someone to explain it to you.

        With all the accounting gimmicks stripped out, the March 2012 CBO report exposes Obamacare as an epic budget bomb. Rather than explain it here, I’ll just link a detailed analysis at Note, by the way, that the CBO report shows that by 2022 Obamacare will still leave 27 million Americans without health insurance.

        One reason healthcare is cheaper in other countries than in America is that U.S. healthcare consumers subsidize lower prices for the rest of the world. Americans pay for all the R&D for new pharmaceuticals. As a result, other countries get those same drugs from the same companies at a fraction of the cost Americans pay. See Also, the government, through Medicare, forces health care providers to provide services at below-market costs, which wildly drives up prices for non-Medicare health care consumers.

        The health care market in America is not driven by free-market forces. It is seriously distorted by government intrusion and America’s subsidizing of the rest of the world.

        I think I made it clear that it is middle-class taxpayers, not “sick people,” who are tyrannized.

        I hope that clears up your confusion.

      • The latest CBO report proves the old adage, you gotta spend money to make money. Rather than try to pick apart the argument from the Koch brothers, I’ll leave you this:

        Even if America was doing all the R&D for the rest of the world (which is total BS), Ezra Klein noted that the pharmaceutical and medical device industry are still making record profits. He also mentions that Obamacare does next to nothing to set prices on health care. Your points about Medicare do make a good case for why we need a single-payer system to ensure that everyone is paying their share (which conservatives used to believe in before January 2009).

  4. Who are the Koch brothers? Where did I mention, link, or cite the Koch brothers? You don’t listen, and you don’t respond rationally to anything I post. When I post something you can’t answer, you change the subject and make some weak attempt at insult. Thank you for commenting on my blog, even if your comments were largely irrelevant to what I originally posted. And I do mean that sincerely: thank you. I wish you well, but I am done.

    • The Koch brothers are billionaires who fund most of the CATO Institute (which you linked) and Tea Party groups. It may have been unfair to assume you knew who they were; even some liberals don’t know who George Soros is. When you don’t see a “rational” response to your posts, it may be that your argument isn’t as convincing as it seems. It’s an important lesson for all bloggers to understand in the hyper-polarized political blogosphere, and certainly one I’ve considered in the course of this discussion. I’ll cede the last word to you and wish you the best of luck in Turkmenistan.


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