I heard Charles Krauthammer last night trying to paint a smiley face on the Supreme Court’s ruling on Obamacare, and his comments fell flat. He said that well, now that this penalty has been called a tax by the Supreme Court that lawmakers will have a harder time passing legislation like this because now they will have to call it a tax. And since taxes aren’t popular they will be constrained in this type of legislation.
No they won’t. John Roberts didn’t say that Congress had to call anything a tax. He calls it a tax when it is convenient for justifying constitutionality. But Congress will go on calling things whatever it pleases in order to get things passed. It calls budget increases “cuts.” It calls suppression of free speech “fairness.”
John Roberts, in his written opinion, doesn’t even consistently call this penalty a tax. The Anti-Injunction Act states that in order for a citizen to challenge the constitutionality of a tax, the tax has to be already levied – they can’t challenge it pre-emptively. In his opinion, Roberts says that he is not going to call Obamacare a tax for purposes of the Anti-Injunction Act. For those purposes, he calls it a penalty. But to justify his ruling, he flips and calls it a tax. Bottom line – we the court will do what we please.
No, in this ruling and in the SB 1070 ruling, Roberts has accepted one of the premises of judicial activism. Rather than acting as Lady Liberty with the blindfold on, weighing matters on the scales of justice, Roberts has pulled the blindfold aside, looked down the road at the result he wanted, which was to save Obamacare, and then hunted for reasons to do so.
When I heard about the Obamacare ruling, I felt like going outside and hoisting an American flag to half staff and, if I had had the power to do so, would have liked to have declared a 30-day mourning period. It was a sad day for the Constitution.
The silver lining is that hopefully the American people will rise up and demand, through the ballot box, restraint on this government. We had thought the Constitution would have protected us against unlimited Federal power but learned Thursday that this is not the case. Hopefully there is enough fire of liberty in the hearts of the people to overturn this.
Click here to visit the Liberty Musings conservative politics home page.