Justice Roberts Rewrites Obamacare And Turns It Into Obamatax

June 28, 2012 / 4:30 pm • By Dr. Melissa Clouthier

Chief Justice Roberts, in writing the final Obamacare opinion, made an argument for Obamacare that Obama and his minions refused to: It’s a tax. So, Justice Roberts found that Obamacare wasn’t okay under the Commerce clause but it was a-ok under the constitution’s provision allowing Congress to levy taxes.

[PDF of findings here. Good summary by Dan McLaughlin here.]

Obamacare is, according to Justice Roberts, the biggest middle class tax hike in history and therefore, constitutional.

Leftists praise the ruling. Conservatives, many of them, are disheartened.

And then there’s these guys who look admiringly at John Roberts for being politically savvy and outmaneuvering the President. You can read Tom Scocca of Slate here, Ezra Klein of the Washington Post here, and George Will here.

Ezra Klein summarizes the Evil Genius argument:

By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.

But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.

I am not persuaded by this thinking, more on why in a minute.

Erick Erickson had a more reasoned response to the ruling (and I have noted that many conservative lawyers are walking this line, but as I’ve said before, and will repeat here, lawyers don’t think like normal people. They think in the constraints of the law and not in the constraints of morality — what is right and wrong — and this skewed perspective can be technocratic and miss the overarching point. I’m not sure that my conservative lawyer friends are quite missing the point, but I feel murky about this parsing). You can read Erick’s nuanced view here.

One point Erick makes is that Roberts is trying to keep the Supreme Court above the partisan fray. That is all noble but is the opinion constitutional?

Sorry if this question makes me literal, but that’s all I care about. The constitution being upheld is of paramount importance. By attempting to be “non-partisan”, Roberts is conceding that he was influenced by President Obama and the left’s fit-throwing. The toddlers won and so the finding becomes a partisan affair.

Today, Ben Domenech came on the Malcolm & Melissa podcast with Andrew and Me and he noted that if Roberts was politically influenced (and it seems he was), that the Right is going to have to reconsider its longstanding aversion to trying to bully courts into decisions the way the Left has traditionally done. He sees that outcome as profoundly troubling. [Aside: It was a great podcast and I’ll link it as soon as it’s produced.]

The Obamacare ruling makes the hated legislation an election and taxation issue. Some say that Roberts delivered the White House to Romney.

Highly unlikely.

Consider this: Only 47% of American workers even pay Federal Income Tax. The non-tax payers have little vested interest in caring about this tax hike. It won’t affect them. As Avik Roy of Forbes pointed out, 67% of Americans already have subsidized health care. The abused American tax payer is already in the minority. The Democrats were playing the odds with this legislation and they know it. They gambled and time after time, they’ve won.

In addition, the Evil Genius argument not only counts on the American people and Congress to overturn Obamacare, it assumes that Congress will be bound by a tightened Commerce Clause interpretation.

When has a Democrat majority felt constrained by, well, anything? Look at how they were willing to ram Obamacare down America’s throat. There is no constraining statists. The Commerce Clause won’t do it, either. In addition, Roberts gives Congress essentially unchecked taxing ability.

Will a Republican Senate and White House overturn Obamacare now known as Obamatax?

If, if, IF.

From the beginning, I’ve felt that if Obamacare passed, repealing it would be nigh to impossible. No, this Supreme Court decision didn’t surprise me.

And in this way, Justice Roberts is right: Voters should be careful about who they elect. Voters shouldn’t be so cavalier about voting for big government Dems.

Voters, and Congress who represents them, need to be more circumspect and take responsibility.

Maybe that’s why I’m despondent: Personal responsibility seems like a quaint, old-fashioned American notion. Trusting Congress is folly.

This video captures it: Excellent job Ben Howe:

More from Charles Krauthammer. More from Bookworm.

  • It’s up to the voters now.

  • Damn well put.

  • I think Roberts made it easier to overturn Obamatax in the short-term but expanded the taxing power of Congress in the future, which, to me, is a net-negative result.  Essentially it doesn’t allow Congress to “mandate” economic activity.  However, it gives the green light to tax inactivity by not ruling that unconstitutional.  So now, by not buying health insurance, you will be levied a tax.  Now, while most Americans will think this is terrible policy, it doesn’t ban it.  I think this is terrible precedent for the future where Congress will be able to tax you for whatever they want you to buy.  It would have been much more prudent to ban penalizing (taxing) inactivity in the future. 

  • Anonymous

    The Obamacare ruling makes the hated legislation an election and
    taxation issue. Some say that Roberts delivered the White House to
    Romney. Highly unlikely. Consider this: Only 47% of American workers
    even pay Federal Income Tax. The non-tax payers have little vested
    interest in caring about this tax hike. It won’t affect them.

    My take is a little different.  This “tax” should be more analogous to the taxes for Social Security and Medicare, in that they (ostensibly) apply to everyone.  Also, in theory the amount should not be a percentage of income, but whatever fixed amount .gov allows the insurer to charge for the coverage premium. Of course there will be subsidizing of premiums for some people and waivers of varying degrees for others.

    FWIW, my position is that the health insurance industry will be/has been effectively nationalized, which means the same for the health care industry as a whole.

  • Anonymous

    Yeah, the health care industry has been nationalized via insurance. But the Insurance companies are so damn short-sighted. In the long term, through Medicaid, they won’t be able to compete. People will opt out and insurance will die.

  • Pingback: #JudgmentDay Fallout()

  • B. Johnson

    Justice Roberts not only rewrote Obamacare, he also rewrote previous Court opinions.  Please consider the following.

    Regardless that Justice Roberts found Obamacare “constitutional” with respect to Congress’s power to lay taxes, perhaps you will find it disturbing, as I have, that the Court had previously clarified that the states have never granted Congress the constitutional authority to address intrastate public healthcare issues.

    More specifically, regardless that Roberts referenced the Gibbons v. Ogden case in the Obamacare opinion, he seemingly ignored two key statements in the Gibbons opinion which clearly indicate, imo, that Congress has no constitutional authority to make legislation of any kind regulating public healthcare.


    In fact, note that the first statement below clarifies, in a single sentence, that not only is public healthcare a state power issue, sovereign state powers to address public healthcare issues protected by the 10th Amendment, but also that Congress has no constitutional authority to regulate intrastate commerce; FDR’s activist justices got the Commerce Clause wrong in Wickard v. Filburn.


    “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.”  –Gibbons v. Ogden, 1824.


    “Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” –Chief Justice John Marshall, Gibbons v. Ogden, 1824.


    In other words, Congress cannot make laws to lay taxes or establish penalties in the name of intrastate public healthcare any more than it can make laws regulating 1st Amendment protected religious expression and freedom of press imo.


    Here’s two more excerpts from USSC case opinions which likewise indicate that Congress has no constitutional authority to make laws regulating intrastate healthcare.  Note that Justice Barbour referenced the above excerpt from Gibbons in New York v. Miln, expanding it as follows.


    “Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” –Justice Barbour, New York v. Miln, 1837.


    And before Constitution-ignoring FDR nuked the Supreme Court with activist justices, Constitution-respecting justices had again emphasized that Congress has no business sticking its big nose into intrastate medical practice.


    “Direct control of medical practice in the states is obviously beyond the power of Congress.” –Linder v. United States, 1925.

  • jack john

    Best essays, thesis, dissertations, term papers writing and editing services at affordable prices by UK writing professionals.