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The Roberts Trick

The Supreme Court removes all restraints on the powers of Congress

July 2012

The bizarre Supreme Court ruling this month approving the "individual mandate" in the Health Care Act was made even more bizarre by the antics of Chief Justice John Roberts. In a line of spurious reasoning with more twists than a coastal highway, he arrived at what will be called the "Roberts Trick": Congress can now demand anything of the American people by just using Justice Roberts' simple little tax trick.
Chief Justice John Roberts: "The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance."

The gentlemen who wrote the U.S. Constitution had no idea what would await that document. Like the Bible, the Constitution has been interpreted by U.S. courts to mean whatever the judges have wanted it to mean at the moment. (That's political judgment, folks, and it's rule by men, not by law, which is exactly the evil the founders tried to insure against.)

A key feature of the Constitution is that it divides governmental power between the federal government, which is given less, and the state governments, which are given more. This is a pretty smart arrangement, because democracy works best at local levels, so the closer to ground level that decisions are made, the greater chance do the citizens have to take part in decisions by being heard. But of course, since we are one country, many matters are best handled at the federal level. This was what the brouhaha over the national health insurance law was all about: does the federal government have, within its limited powers, the authority to compel individuals to buy a product?

Now the Constitution says, in Article I, Section 8, that Congress has power "to regulate Commerce ... among the several States." The Obama administration, in defending the Health Insurance law before the Supreme Court, argued that this power includes the power to make individuals buy a product that Congress wants us to buy, if buying this product (or failing to buy it) has any inter-state commercial impact. The Court rejected this argument by a single vote, both because it was so far from the meaning of the terms of the Constitution, and for fear that it would vastly expand the powers of the federal government at the expense of the states. Nevertheless, four justices felt that Congress should be empowered to require people to buy a product that they wished the people to buy. So you might think that this law went down to defeat: 5-4. But no; the fun was just starting.

Chief Justice Roberts decided to reexamine the Act. He writes in his opinion (pp 31-32): "The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals "shall" maintain health insurance." Indeed, that certainly sounds like a command. But Roberts discovers that it's not a command at all. The law requires that those who don't buy insurance must pay a supplementary federal tax (the Act calls it a "penalty," so we mustn't think they're adding a tax). Thus, says Roberts, "the mandate can be regarded as establishing a condition – not owning health insurance – that triggers a tax.... it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income."

Whoa, there, Justice Roberts. It's not at all like taxing gasoline or income; it's like taxing not buying gasoline or not earning income. It's taxing a non-activity! Roberts goes on to explain that "every reasonable construction [of the law] must be resorted to, in order to save a statute from unconstitutionality." But Roberts says further that his standard won't be whether the construction is "reasonable," but whether it is "fairly possible." Whereupon he outlines his fairly possible interpretation that allows Congress to tax the non-purchase of a product.

I won't bother you with the details – they're found in Section C of the opinion, pp.33ff – but Roberts goes on to give examples of special taxes permitted by the Court: federal license fees to sell lottery tickets and liquor, a surcharge on out-of-state nuclear waste shipments and an incentive penalty on states that fail to have a nuclear-waste plan, taxes on cigarettes, and on marijuana and sawed-off shotguns where legally sold. Those are the only examples offered. Roberts has not found any case of a tax being levied on individuals for not buying a product.

Mr. Roberts is, however, an intelligent man, and he recognizes that for some it may seem "troubling to permit Congress to impose a tax for not doing something." (Well, he's right about that.) But that shouldn't trouble us, he says, because the Constitution doesn't forbid the Congress from imposing such a tax, and Congress has done it before. He says, "Tax incentives already promote, for example, purchasing homes and professional education." Sure, John, but those incentives are given as tax savings for those who do buy the desired product, the rest of us are not being taxed for not buying it. The Chief Justice errs when he argues that Congress already has the power to tax individuals for not buying a product. He has found no such example. It's a new and frightening power he has presumed to give the Congress. And just as when an almighty King makes a disastrous error in judgment, his error is unchallengeable.

At this point Roberts offers a hypothetical example of what he considers an acceptable incentive tax:  "Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy-efficient windows must pay $50 to the IRS. ... No one would doubt that this law imposed a tax, and was within Congress's power to tax." Good Lord, John! You have actually concluded that whatever Congress wants us to do, they can "encourage" it through their taxing power! The "Roberts Trick!" Congress has not actually been aware of the full reach of this power, nor till now, of the Court's willingness to approve it.

Most laws that affect the local daily lives of U.S. citizens are laws of the individual states. For example, a state law may require that a youngster attend school regularly until age 16. By the Roberts Trick, Congress can now decide that since education is of national importance, they want everyone to finish high school. They can't command that everyone finish high school, but they can tax everyone who has not got their high school diploma. An extra $20 a month to the IRS – that would be within the powers of Congress, says Roberts.

It's difficult to think of any personal behavior that Congress can't regulate with the Roberts Trick. You don't have fire insurance on your house? You should, says Congress. That'll be $30 a month to IRS. You need to keep life insurance, or ... $25 a month. What else? It's important that we bicycle instead of driving. You don't have a bicycle? $10 a month to IRS. There's no end to the possibilities.

What Congress can do with this power is scary. Clearly John Roberts was not aware of the scope of the powers that his decision gave Congress. His opinion makes clear that he believed Congress already has the power of "encouraging" individuals to do, or even to buy, what Congress wants them to do or to buy, by taxing the non-act or non-purchase. There is unfortunately no appeal from a Supreme Court mistake. Every error they make stands until the Court itself overturns it or Congress moots the decision by new law. Or until the people and the states overturn it by a Constitutional amendment, perhaps not a bad thought at this point.

The Health Care decision has immeasurably increased the practical power of Congress, at the expense of state and local governments, but mostly at the expense of the individual citizen. The Constitution meant to limit the powers of Congress and the federal government. Chief Justice Roberts and the Court have now released Congress from its constitutional limits, and have taken us on a path toward total state power, a path that usually ends in state tyranny.

© 2012 H. Paul Lillebo

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