Chief Justice Roberts and the four liberal justices of the Supreme Court blithely circumvented the Constitution when they ruled that the "Affordable Care Act requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax."
In other words, if you don't buy health insurance you pay a federal tax for inactivity. As the dissent says, "Congress has attempted to regulate beyond its authority…A tax is an enforced contribution to provide for the support of government; a penalty is an extraction as a punishment for an unlawful act."
Justice Kennedy in dissent reminded the majority of the many cases holding that "there are structural limits on federal power – upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign states.
Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such that will enable the Federal Government to regulate all private conduct and to compel states to function as administrators of federal programs."
This writer's fondest hope was that the Court would declare Obamacare unconstitutional on the grounds that non-activity of a citizen was not interstate commerce, and in the process overrule the insane 1942 Wickard v. Filburn care, which I have written about before.
This case was the beginning of the end of our democratic system of federalism. Progressive liberals have this baffling argument, as only a lawyer could, that not buying health insurance also affects interstate commerce.
The basis for the decision came from left field – the government's unlimited taxing power – although Kennedy managed to mockingly refer to Wickard "which held that economic activity of growing wheat, even for one's own consumption, affected commerce sufficiently that it should be regulated…To go beyond that and say the failure to grow wheat …affects commerce… is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity."
So the majority simply substituted what had been the virtual unlimited power of Congress to regulate under the Commerce Clause for their unlimited power to tax, saying the individual mandate is buttressed by a functional approach that has always allowed federal taxes to "seek to influence conduct of its citizens."
Back to Mr. Filburn whose production of wheat exceeded the amount of wheat he was allowed to produce (if you combined the amount of wheat he produced for himself with the amount he sold) for which a penalty was assessed against him. If you adopt the reasoning of this Supreme Court, the Congress could simply label the penalty a tax for his overproduction. But as the dissenters said, "to say that the individual mandate merely imposed a tax is not to interpret the statute but to rewrite it."
Fast forward to 2012 when Mr. Filburn is informed by the government that when he rebuilds his farmhouse he must heat it with solar heating, (preferably manufactured by a Solyndra-like Obama approved manufacturer), or he will incur a 20% "green" tax. Or if his next personal vehicle purchase is an internal combustion machine, he will be penalized with a similar tax – unless he buys a Chevrolet Volt.
In essence a liberal progressive government can now regulate interstate commerce by an unlimited power to tax all private conduct – even a non-activity. If you earn income you pay an income tax. If you buy something you pay a sales tax. But now if you don't eat broccoli or exercise you can incur a tax penalty.
States have a general police power which the federal congress lacks. So they can order their citizens to buy health insurance. They do not have to search for an enumerated power granted by anyone. Recall that it was the "sovereign" states which granted power to the federal government when our republic was founded – not the other way around.
Herein, in a nutshell, is the problem: Yes, there are two Americas. We are a divided country in a metaphorical sense of the word, as we see with our religions; which are divided into religious entities – Catholics, Protestants, and Jews etc. The only difference being the absence of hate in religious leadership toward another's religious beliefs. Nobody of one faith expects a person of another faith to compromise their religion. Proselyte yes, compromise no. There is no rancor, just respect for other Americans with different religious beliefs.
Unlike religious leaders, this president practices identity politics with rancor. Those who disagree are the enemy. This strategy of hate and attack has sadly become the political cornerstone for unions, the Congressional Black Caucus and many Latino groups. (The President while addressing a Latino group saying, "We're gonna punish our enemies" (to applause).)
We are not the country we used to be.
Americans need to also accept the fact that President Obama has legitimized socialism in the eyes of many of us; particularly young people. 52 percent of liberal Democrats prefer socialism to free market capitalism. Whatever it takes – an elastic Interstate Commerce clause or unlimited taxing powers – any power grab to ensure the centralized control of all human activity in Washington. Even The Pew Center reports that "Capitalism is on the decline in America – at least the word is." Only 50 percent have a positive view of capitalism – 40 percent negatively.
Rasmussen reports that that only 53 percent of Americans believe that the "capitalist way of life is better than the socialist." Scary stuff. It would be fair to say that progressive Democrats would prefer Francois Hollande's Socialist anti-austerity government to our current Congress. Certainly, President Obama would love to be in President Hollande's shoes.
This change in our historic values, would of necessity, be reflected in the political affiliations of our elected officials and finally, the courts – a lagging indicator – given our political process.
By deciding the constitutionality of Obamacare on the taxing powers of government and not on the Commerce Clause, the Supreme Court kicked the ball right back to the voters.
We must decide if we prefer French and Greek-like socialism with an unlimited central government. Many of us do. If so, in the long haul the jurisprudential philosophy of the appellate courts will directly reflect the politics of the people – not the Constitution.
It always has.