A Vast New Federal Power

The logic in John Robert's ACA opinion is the jurisprudential equivalent of passing a camel through the eye of a needle.

 If you drive a car, I'll tax the street,
 If you try to sit, I'll tax your seat.
 If you get too cold, I'll tax the heat,
 If you take a walk, I'll tax your feet.

-- The Beatles in "The Taxman" 

Of the 17 lawyers who have served as chief justice of the United States, John Marshall -- the fourth chief justice -- has come to be known as the "Great Chief Justice." The folks who have given him that title are the progressives who have largely written the history we are taught in government schools. They revere him because he is the intellectual progenitor of federal power.

Marshall's opinions over a 34-year period during the nation's infancy -- expanding federal power at the expense of personal freedom and the sovereignty of the states -- set a pattern for federal control of our lives and actually invited Congress to regulate areas of human behavior nowhere mentioned in the Constitution. He was Thomas Jefferson's cousin, but they rarely spoke. No chief justice in history has so pronouncedly and creatively offered the feds power on a platter as he.

Now he has a rival.

No one can know the true motivations for the idiosyncratic rationale in the health care decision written by Marshall's current successor, John Roberts. Often five member majorities on the court are fragile, and bizarre compromises are necessary in order to keep a five-member majority from becoming a four-member minority. Perhaps Chief Justice Roberts really means what he wrote -- that congressional power to tax is without constitutional limit -- and his opinion is a faithful reflection of that view, without a political or legal or intra-court agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of Marshall's big government aphorisms: The power to tax is the power to destroy.

The reasoning underlying the 5 to 4 majority opinion is the court's unprecedented pronouncement that Congress' power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the IRS from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility -- all of which the statute says it is -- but rather is an inducement in the form of a tax.

The majority likened this tax to the federal taxes on tobacco and gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving. The statute is more than 2,400 pages in length, and it establishes the federal micromanagement of about 16 percent of the national economy. And the court justified it constitutionally by calling it a tax.

A 7 to 2 majority (which excluded two of the progressive justices who joined the chief in rewriting tax law and included the four dissenting justices who would have invalidated the entire statute as beyond the constitutional power of Congress) held that while Congress can regulate commerce, it cannot compel one to engage in commerce. The same majority ruled that Congress cannot force the states to expand Medicaid by establishing state insurance exchanges. It held that the congressional command to establish the exchanges combined with the congressional threat to withhold all Medicaid funds -- not just those involved with the exchanges -- for failure to establish them would be so harmful to the financial stability of state governments as to be tantamount to an assault on state sovereignty. This leaves the exchanges in limbo, and it is the first judicial recognition that state sovereignty is apparently at the tender mercies of the financial largesse of Congress.

The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law's most fervent supporters did not make or anticipate the court's argument in its support. Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing. In all the history of the court, it never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.

I wonder whether the chief justice realizes what he and the progressive wing of the court have done to our freedom. If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.

Even The Beatles understood this.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."

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  • John||

    But Justice Roberts swears that liberals will support all of these vast new curbs on federal power he plans to impose in the future. He just promises he is going to do it. Just because he proved to be a moral coward doesn't mean he won't do better next time.

  • VG Zaytsev||

    That argument sounds more retarded every time it's used.

  • Longtorso||

    Again, fuck every Evangelical for supporting Geo W. "but, but, but he's a LEADER!!!" Bush, who talked enough of a small govt game to get "deregulation" wrongly blamed for the economic mess, who got us in Iraq, who got Obama elected, and who appointed the 5th vote for Obamacare.

    If your main concern wasn't Submission and Obedience to Authority and Leaders, and instead you held your so called leaders accountable, things may have been different.

    Fuck Jesus Christ.

  • Longtorso||

    "But, but, but, Bush's spending doesn't matter, he said JEEEEEEBUS was his favorite political philosopher. JEEBUS!!! JEEBUS, bitches!!"
    -- Random Evangelical circa 2000-2008

  • Eduard van Haalen||

    Going by Reason's coverage, the "freethinking" community doesn't come off that well, either. Whenever Reason addresses the subject, it turns out that most "freethinkers" are Obamabots or worse.

  • Longtorso||

    My current complaint about Evangelicals and Bush is they led to Obama, my opposition to both being at the very least implied.

  • Eduard van Haalen||

    The Evangelicals are beginning to awaken from their delusive dreams. Some of them are even in the Tea Party. They can respond to evidence-based appeals.

    Meanwhile, the freethinkers continue their Lewinskian dedication to big government.

  • Eduard van Haalen||

    And the reason we have one Roberts, not two, is that when Bush tried to get Miers on the court his erstwhile supporters revolted, and Bush turned to Alito instead.

    Having obtained evangelical support in part by promising to get good Justices, Bush managed to alienate his base with the Miers nomination, and they pushed back.

    Also, Scalia and Thomas have encountered great criticism for their religion - and they're the ones on the right side.

  • Longtorso||

    The Evangelicals are beginning to awaken from their delusive dreams

    Only because there is currently a Mormon at the top of the ticket. Nominate a Baptist and he could double the deficit w/o a peep from that crowd by saying "Jesus Christ" a lot.

    I was raised in the church and attended conservative Evangelical churches thru 2006ish. I know exactly who they are and what they think. Jesus died for the 'good news' of submission to Manly Leadership. Submission to Authority. Submission And Obedience.

    Freedom truly is slavery to this crowd, and they have the New Testament verses to back themselves up.

  • Tim||

    Wait, are you mad at Evangelicals or at Jesus?

  • Longtorso||

    Wait, are you mad at Evangelicals or at Jesus?

    Evangelicals. Jesus doesn't actually exist to be mad at.

    Roberts let the libs scare him because he knew deep down that conservative evangelicals would grumble but eventually Submit And Obey.

  • Scruffy Nerfherder||

    Submission is the key word here. At what point in Christian cultural history did submission to God or the church become conflated with submission to the leaders of our government?

    I have had this argument with a few evangelicals and while they seem to get it, they don't really understand the implications of it. As long as someone pays lip service to their pet issues and claims allegiance to Christ, their suspicions are put on hold and the lust for power shines through. It makes me admire the Amish.

  • BakedPenguin||

    Read Romans .13-1: "Let every person be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God.
    vs2 Therefore he who resists authority has opposed the ordinance of God; and they who have opposed will receive condemnation upon themselves.
    vs3 For rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear of authority? Do what is good, and you will have praise from the same;"

  • wareagle||

    the Bible was written by man, and who knows what their motivations were when writing. The church folk present it as god's word, but let's be serious - it is the alleged interpretation of god's word by a bunch of men. It is hard to picture a benevolent deity suggesting that it is a good thing for one man to bow down before another.

  • Eduard van Haalen||

    To repeat something I said before: Even if Acts 5:29* never existed to put Romans 13 in context, even if there was no history of evangelicals reblling against what they believed to be oppressive governments, we would still have to ask where do we find the supreme human authority in the US. The constitution makes clear that it's the people, not a particular office-holder or group of officeholders. And the Constitution, which evangelicals played some role in writing (especially the 1st Amendment) limits the power of the government to be oppressive, and evangelicals have sometimes remembered that.

    *"We must obey God rather than man"

  • ||

    so that holiday we celebrated yesterday was a crime against God. hmmm

  • robc||

    But when they said, “Give us a king to lead us,” this displeased Samuel; so he prayed to the Lord. And the Lord told him: “Listen to all that the people are saying to you; it is not you they have rejected, but they have rejected me as their king. As they have done from the day I brought them up out of Egypt until this day, forsaking me and serving other gods, so they are doing to you. Now listen to them; but warn them solemnly and let them know what the king who will reign over them will claim as his rights.”

    Samuel told all the words of the Lord to the people who were asking him for a king. He said, “This is what the king who will reign over you will claim as his rights: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots. Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots. He will take your daughters to be perfumers and cooks and bakers. He will take the best of your fields and vineyards and olive groves and give them to his attendants.

  • robc||

    He will take a tenth of your grain and of your vintage and give it to his officials and attendants. Your male and female servants and the best of your cattle and donkeys he will take for his own use. He will take a tenth of your flocks, and you yourselves will become his slaves. When that day comes, you will cry out for relief from the king you have chosen, but the Lord will not answer you in that day. ”

    But the people refused to listen to Samuel. “No!” they said. “We want a king over us. Then we will be like all the other nations, with a king to lead us and to go out before us and fight our battles.”

    When Samuel heard all that the people said, he repeated it before the Lord. The Lord answered, “Listen to them and give them a king.” -- 1 Samuel 8:6-22

  • robc||

    At what point in Christian cultural history did submission to God or the church become conflated with submission to the leaders of our government?

    Never.

  • robc||

    Nominate a Baptist

    Like Ron Paul?

  • Eduard van Haalen||

    zing!

  • Heroic Mulatto||

    Evangelicals talk a good game when it comes to economics, but when it comes to civil liberties, they are statist to the extreme. They wish to establish theonomy, and thus, subsume common law under divine law. They argue for the death penalty for idolatry and homosexuality. In Political Polytheism, Gary North, who is so feted by paleolibertarians, argues that non-Christians should not be allowed to vote or hold American citizenship.

    No one truly concerned about liberty can break bread with these folks. The enemy of my enemy is not always my friend.

  • lightning||

    If you simply lump all evangelicals together, you miss out on an opportunity to "cull their herd". Are many evangelicals brainwashed republicans? Yes. However, as Haalen said, some are waking up to the fact that the republicans are not what they thought they were and that the "statist" legislation you talk about is a two edged sword. At least in this regard, today's political climate is ripe for sharing libertarian views and getting converts. It's not easy, but we won't be successful by using stereotypes or lumping folks into a group and saying the are beyond reasoning with. Yes, I am currently working on friends and family to gently (without alienation) get them to see what the repubs have actually done and to expose them to libertarian alternatives.

  • ||

    As long as the evangelicals believe it is proper to legislate morality, they ARE the enemy within the Republican party.

  • Eduard van Haalen||

    These are some fairly broad generalizations. We need to remember that evangelicals didn't simply emerge on Jan. 20, 2001, they've been around for some time. And outside of 16th-century Massachusetts,* they never really got around to stoning idolators or hanging gays.

    And if they went in for Prohibition, on the other side of the ledger they opposed Eugenics, and a prominent Evangelical (William Jennings Bryan) tried to keep us out of our ruinous involvement in WWI.

    And let's not forget the antislavery crusaders in the US and the UK, who were largely evangelicals.

    *If we stretch a point and classify the Massachusetts Calvinists as evangelicals.

  • Eduard van Haalen||

    17th century massachusetts.

  • Eduard van Haalen||

    See some earlier comments of mine, on evangelicals and eugenics, including this quote:

    "Many conservative Protestants also voiced religious objections to eugenic legislation, especially in the American South, where fundamentalism was strong."

    http://reason.com/blog/2011/12.....nt_2729453

  • Heroic Mulatto||

    The evangelicals of the past held different views than the Christian Reconstructionists of today.

  • Eduard van Haalen||

    "The evangelicals of the past held different views than the Christian Reconstructionists of today."

    That sounds like "the marijuana kids use today is so much worse than what I used to use!"

  • Eduard van Haalen||

    (as for the minority of actual Reconstructionists, how many votes do they command?)

  • Heroic Mulatto||

    (as for the minority of actual Reconstructionists, how many votes do they command?)


    Umm..a metric shitload? You've never heard of the Moral Majority, Ralph Reed and his Christian Coalition, and the Family Research Council?

    C'mon son.

  • Eduard van Haalen||

    I would like to see some evidence that the Moral Majority, Family Research Council and Christian Coalition are actually Reconstructionist.

    Come on, surprise me!

  • Heroic Mulatto||

    I would like to see some evidence that the Moral Majority, Family Research Council and Christian Coalition are actually Reconstructionist.

    Come on, surprise me!

    You mean they don't advocate that Christians should put their faith in all aspects of their life, including the political sphere?

    Or are we splitting hairs between pre-millennialism and post-millennialism?

  • Eduard van Haalen||

    Your definition of Reconstruction views included this gem:

    "They argue for the death penalty for idolatry and homosexuality."

    That's what I'd like to see some evidence of.

  • Eduard van Haalen||

    That is, evidence that the Family Research Council, et. al, advocate these tenets.

  • robc||

    Evangelicals talk a good game when it comes to economics, but when it comes to civil liberties, they are statist to the extreme

    I am?

  • Heroic Mulatto||

    If you subscribe to theonomy, then yes you are, robc.

  • robc||

    How does believing that the individual (myself) is governed by divine law (which is the same thing as natural law, IMO) make me a statist?

  • wareagle||

    come on, rob; you know that equating natural and divine law here will cause some to break into hives. Nothing brings out the intolerant among libertarians quite like a mention of a deity. Any deity.

  • robc||

    I know, but that is the source of natural law, IMO.

    But, somehow, giving a source to it instead of having it magically pop into existence, changes it somehow.

  • Heroic Mulatto||

    The Dharma (which is cognate to logos/natural law) doesn't need a "creator" to exist or come into being.

    Put that in your pipe and smoke it.

  • wareagle||

    so it appears magically all by itself? Okay then. I may have to smoke quite a bit to see what you see.

  • Heroic Mulatto||

    so it appears magically all by itself?

    No, Buddhism believes that cosmic Order can arise from Chaos without a Creator/Mind. This is the same argument made by Darwin in his theory of evolution of species through natural selection. (See Daniel Dennet's great book Darwin's Dangerous Idea.

    We believe the universe, and the laws it operates under (ie. logic) were neither created nor will it be destroyed.

  • robc||

    But Darwin is wrong (or your comparison). Evolution doesnt arise via chaos, but via fucking (or asexual reproduction, in some cases). Genetics is pretty far from chaotic. Even mutations generally have no chaotic sources.

    Im using chaos in the mathematical sense here, maybe you are using in differently.

  • Heroic Mulatto||

    Im using chaos in the mathematical sense here, maybe you are using in differently.

    Yes, Dennet uses the term "Chaos" in the philosophic sense, as understood by medieval scholastics, like Thomas Aquinas, whose argument against Creation ex niliho Darwin's theory ideologically challenges. Dennet argues, quite convincingly imo, that evolution is an algorithm, and as such, that creatures possess "organs of extreme perfection" doesn't necessarily point to the existence of a creator. Just as wind erosion on the Moon and Mars produced "faces" on their surfaces. (Unless you believe aliens carved them?)

  • wareagle||

    Darwin's view was, in a nutshell, adapt or die. That is what he saw on the Galapagos. To believe the universe was not created, by whatever means, is to believe in something-from-nothing. I can't get behind that.

    The universe was created somehow but I do not presume to know how that origin came about. That is one reason that religion is predicated on faith - believers cannot definitively prove the existence of a supreme being and, likewise, non-believers cannot definitely prove their point of view.

  • Heroic Mulatto||

    To believe the universe was not created, by whatever means, is to believe in something-from-nothing. I can't get behind that.

    Well, that's one thing that makes a Christian different from a Buddhist. But the fact shows that there are systems of thought that believe natural law doesn't need a creator as its source and that under our system of government one ideology shouldn't be favored over another.

  • Bill Dalasio||

    Okay, so I get it. Law derived from Buddhism = good. Law derived from Chistianity = bad.

  • Heroic Mulatto||

    Okay, so I get it. Law derived from Buddhism = good. Law derived from Chistianity = bad.

    You know that's not what I said. Don't be an ass.

  • Bill Dalasio||

    No, you didn't SAY it. But, you did consistently reference Buddhist notions in your justifications for law after damning fundamentalist Christians for doing pretty much the same thing.

  • Major Pain||

    Adopting canned beliefs before the evidence is in is a sign of a weak mind in search of false reassurance.

    The value of meditation is unquestionable. The value of canned beliefs is zero. Or less.

  • Heroic Mulatto||

    As long as you don't attempt to legislate "divine law" then I have to problem with you.

  • robc||

    As long as you don't attempt to legislate "divine law" then I have to problem with you.

    That isnt what you said above. Above you said if I believe in divine law, you wouldnt have anything to do with me.

    I dont think you have properly thought this through.

  • Heroic Mulatto||

    That isnt what you said above. Above you said if I believe in divine law, you wouldnt have anything to do with me.

    Umm...no. What I wrote was:

    They wish to establish theonomy, and thus, subsume common law under divine law.

    I may have not thought it through properly, but it's clear you haven't properly read it through. :)

  • robc||

    That isnt what you wrote, and I quote:

    Evangelicals talk a good game when it comes to economics, but when it comes to civil liberties, they are statist to the extreme....No one truly concerned about liberty can break bread with these folks.

    I literally never read the stuff within the dots.

    That is what I was responding to, not the stuff in between.

  • Heroic Mulatto||

    Just because you pick and choose elements of your theology, doesn't mean its correct to pick and choose elements of my argument and respond to them.

    If you believe in and support my right, as a religious minority, to fully engage in American political life and the freedom to worship in the manner I choose, then I have no problem with you.

    However, don't pretend that a large portion of your coreligionists aren't trying to influence the politics of the United States as to disfranchise those who disagree with them theologically.

  • robc||

    If you believe in and support my right, as a religious minority, to fully engage in American political life and the freedom to worship in the manner I choose, then I have no problem with you.

    But I can do that AND subscribe to theonomy, as they arent contradictory.

    This is where you are picking and choosing. You arent making absolute statements about evangelicals and theonomists without taking in consideration, for example, me.

    And that fucking pisses me off.

  • robc||

    You are making, that should say.

  • Heroic Mulatto||

    Well, I'm not trying to piss you off. I originally used the term "Christian Reconstructionist" but Eddie was using "Evangelical" so in following his argument in the thread, I switched to using that term.

    Nevertheless, I strongly disagree with you that theonomy and religious pluralism are non-contradictory. If you believe that, then you must admit that you are an "atypical" evangelical, which is fine. I really hope there are more like you in the movement.

    Unfortunately, this forum is not the best place to present arguments as to why a true believer in theonomy must necessarily lead to a belief that common law/civil law is subsumed by divine law.

    In short strokes, I argue that if you believe divine law is the most highest and moral law, then in a participatory republic you will judge the goodness or badness of a civil law through the metric of divine law. When you vote, you will vote to move legislation closer to that of divine law. Groups like the Christian Coalition are attempting to do just that through political advocacy.

  • Heroic Mulatto||

    While the Christian Coalition has every right to advocate for laws that are inline with their ideological beliefs, when certain thinkers (like North, Rashoody (sp?) and Van Til) propose to remove the protections our Republic has for religious minorities, that I cannot abide.

  • Major Pain||

    "when certain thinkers (like North, Rashoody (sp?) and Van Til) propose to remove the protections our Republic has for religious minorities, that I cannot abide."

    The best thing to do would be to remove any protection at all for religion, and make sure that the *individual* is protected, because first of all, the individual is the ultimate minority, and secondly, religion is bunk and deserves no protection of its own that the freedoms of an individual should not roundly exceed.

  • robc||

    Theonomy doesnt (necessarily) subsume common law.

    Theonomy, using the wikipedia defintion, is the state of being governed by God or in accord with divine law.

    That says nothing, one way or the other, about common law.

  • robc||

    And just to be clear, I reject almost all the modernish theological movements: theonomy, dispensationalism, covenant theory, reconstructionalism, calvinism, etc, etc.

    They all get stuff right, so I pick and choose. Advantage of being baptist, I take the "priesthood of the believer" doctrine very seriously.

  • robc||

    No one truly concerned about liberty can break bread with these folks

    I will break bread and/or have a beer with you whenever you want, but you can still go fuck yourself.

    [the strike is me turning the other cheek]

  • Heroic Mulatto||

    Well, I'm glad you 'turned the other cheek' but that you felt you had to do so lends me to quote from my religious tradition: "Good advice grates on the ear."

  • Bill Dalasio||

    I keep hearing this, but it seems to be pretty darned inconsistent in practice. Honestly, I'd say I see as many who just want to be left alone as who want to impose their beliefs. And more than either of them who just don't want the government encouraging what they view as bad behavior. I can't help but wonder to what extent is this a fiction palmed off by Hollywood (at the same time they rob your liberty more than the most rabid evangelical would ever dream). After all, it isn't evangelicals telling me I can't buy a large soda in Manhattan. It isn't the religious right that gave us campus speech codes. It's not fundamentalists telling me I've got to sort my garbage. I'm more likely to get attacked by a feminist than a fundamentalist for buying a porno.

  • Heroic Mulatto||

    I'm more likely to get attacked by a feminist than a fundamentalist for buying a porno.

    Unless it's gay porn.

    Jus' sayin'

  • Bill Dalasio||

    No, I live in Manhattan. It's still more likely to be the feminists. :-)

  • wT||

    Theonomy is a great word that I learned by reading you.

    Thanks.

  • wareagle||

    you are stretching to equate evangelicals to Bush specifically. They would have voted for whomever the Repub nominee was.

    Where Bush got a pass on everything else was due to his stance on terror. Once he became the terror warrior, anyone who disagreed with him on anything was branded a moral coward or traitor to the state. You may recall he had six years of Repub majorities when no one was too concerned about federal expansion of budget and power.

  • Eduard van Haalen||

    And if even libertarians on this very forum yield to Culture War temptations despite frequent warnings, how can we be surprised if evangelicals do, too? If the loudest critics of Bush came, not from the ranks of libertarians, but from people who say Bush wasn't doing *enough* regulation, then where's the incentive to adopt a limited-government critique? (and many libertarians seem to be out-and-proud atheists)

    With the economic disaster, which affects even evangelicals, we'll see more rethinking of previous ideas.

  • ||

    Judging the entire atheist community from freethoughtblogs is very much like judging it from the Soviet Union.

  • Heroic Mulatto||

    Not every Evangelical supported Bush. Let's not forget that Christian Reconstructionism is a plague upon Libertarianism as well. (i.e. Gary North co.)

  • robc||

    What about the evangelicals who voted for Browne and Badnarik instead of Bush twice?

  • SIV||

    They probably outnumber the Atheists who did so.

  • SugarFree||

    Cool story, bro.

  • VG Zaytsev||

    Again, fuck every Evangelical for supporting Geo W...

    Yes fuck Bush, but really, the problem is super smart ivy league assholes that know everything. They're the ones, from both teams, that fucked up the economy, drove us to war and keep pushing for ever larger government, not evangelicals.

    And the most brainwashed followers are all progressives, no evangelicals. The fucking cult of Obama is at least two orders of magnitude more loyal and creepy than evangelicals ever were to Bush.

  • wareagle||

    it's Reason...faith in religion is treated with greater scorn that blind faith in liberalism.

  • Heroic Mulatto||

    Yes fuck Bush, but really, the problem is super smart ivy league assholes that know everything.

    Bush is a Yale man.

    Jus' sayin'

  • VG Zaytsev||

    He's definitely one of the ivy league assholes. Despite the folksy mannerism and Texas twang.

  • ||

    SCotUS eviscerating more limits on power and strengthening the federal titan? I wish I could say I was surprised when it happened. Furious, hateful, depressed. But not surprised.

  • Tim||

    It's for your own good. If you were smarter (but you aren't) you'd realize that.

  • Mike M.||

    This is by far the most succint, accurate, and devastating legal critique of this monstrosity I have read yet.

    Thank you Judge Napolitano. We could use a few hundred thousand more lawyers and judges like you in the system, but we're not going to be so lucky.

  • Rich||

    Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing.

    What is this "Constitution" of which you speak?

  • Scruffy Nerfherder||

    It's a character trait in your typical role-playing games. A higher constitution confers a greater ability to withstand abuse.

  • ant1sthenes||

    What's a THAC0?

  • Taco||

    what now?

  • Taco||

    "What is this "Constitution" of which you speak?"

    Its one of those documents like the Declaration of Independence, the Magna Carta, or the Code of Hammurabi that has some pretty words and used to have real meaning. But now that its over 100 years old nobody really understands it anymore.

  • 0x90||

    Shorter US gov: "Not doin' what we say, that's a paddlin'."

  • Auric Demonocles||

    Under the Constitution, a tax must originate in the House (which this law did not)

    Would it be possible to sue for unconstitutionality on the basis that the shell bill game violates this portion of the Constitution?

  • robc||

    Its possible to sue for just about anything.

    Winning is an entirely different issue. The shell game clearly violates the intent of the constitution, which is good enough for me. But I bet you would get an 8-1 if it somehow made it to the Supremes.

  • Auric Demonocles||

    By "possible to sue" I meant "get it anywhere near the SC without losing handedly due to some stupid precedent".

  • Contumacious||

    The bill that passed the Senate wasn’t technically a Senate bill. Reid took a bill that had already passed the House, stripped out the provisions to turn it into a “shell bill,” and then inserted the text of ObamaCare to get around this requirement. The bill that passed the Senate was H.R.3590, which initially had to do with tax breaks for military homeowners.

    Are they corrupt or are they corrupt?!?!?!?!?!?!?

  • entropy||

    New theory of planet formation posits that the planets were actually painted onto the sky with a GIANT FUCKING BRUSH.

    Evangelicals don't bathe properly and libertarians hold Edi Amin Dada to be the pinacle exemplar of wise leadership.

    Carry on.

  • entropy||

    That was supposed to be a reply to that longtorso/vanhaalen crap above.

  • plcombs||

    Such a stupid mess this can create..just plain dumb.

    http://www.blogger.com/blogger.....4684267226

    "However, by allowing the Government to levy a Tax if a citizen fails to buy a particular type of product is the problem. The Government can now enforce through new laws backed up by Tax penalty, anything which can be argued will improve the health and well being of the nation, improve worker productivity and allow a Tax Penalty to be levied and collected to encourage a change in buying/spending habits to achieve this end.."

  • Bill Dalasio||

    My suspicion is that those on the left celebrating this ruling might want to hold off on their rejoicing. Sure, Roberts gave them the healthcare law they wanted. But, how do they think all of this might play out should we get a President Santorum ("We're not banning abortion, we're just taxing it at $100 K a pop.", "We're not making homosexuality illegal, we're just taxing it at $1,000 per incident.")

  • Rasilio||

    I actually suggested this a few days ago. Not sure they could make the Homosexuality one stick because there is no real way for them to know when someone has homosexual sex, however the abortion one is entirely realistic and easily argued for with this logic.

    Further the health care law makes it even easier for them to implement since it requires doctors to report what services were provided so they can be evaluated for "cost effectiveness"

    What's that you say, Abortion is protected under the right to privacy? That's fine, we don't tax the patient, we tax the provider who is then free to pass on the tax or not (no different than a gas tax), as far as legal rationaly, lets see we need a way to fund Social Security and well aborting babies means fewer future workers to pay into the system and maintain benefits therefore to cover this shortfall in funding a $5000 per abortion tax is levied with the funds going into the SS Trust Fund.

    Sure it won't eliminate all abortions because the rich will still be able to get them but Planned Parenthood is straight out of business and abortions will be out of reach of 90% of the public.

  • Bill Dalasio||

    Well, there was really no way to know if someone were violating the old sodomy laws. That doesn't change that they were on the books and enforced from time to time. But, yeah, it would be pretty useless as a tax. But, really, taxing would only be incidental to the actual intent, wouldn't it?

  • Brendan||

    $50,000/yr tax on all doctors. Exempt those who do not perform abortions.

  • Gadianton||

    A friend of mine posted this the day the ruling came out:

    Explaining Robert's ruling on the "Individual Mandate" in language Republicans and Conservatives can appreciate:

    Congress decides that the 2nd Amendment is important enough that they want to give it some oomph. They pass a law that requires all Americans to buy a personal firearm. Failure to do so has no direct criminal penalty (you don't go to jail for failing to buy a gun) however you will need to pay a tax to the IRS to make up for the added cost of protecting you... since you cannot defend yourself (as construed by your failure to own a handgun). You don't have to own a gun, you don't even have to like guns, but if you choose to not buy a gun... you will be taxed.

    That's what happened today. Insert any product or service you can imagine.

    Same basic logic. What inactivity (or activity) we tax is determined by who holds the levers of power.

  • Taco||

    I'm not FORCING anyone to be Catholic... that would be unconstitutional! All I'm doing is creating a condition, non-Catholicism, and then taxing it at a rate of $250,000 a year. Everyone still has absolute freedom of religion.
    -- President Santorum, 2017

  • guerito||

    Perhaps the wisdom of the founding fathers was correct i.e. the prohibition of direct taxes. Maybe, just maybe, we need to repeal the 16th amendment.

  • ||

    How the fuck did this thread become a fucking christian philology thread? [shakes-head]

  • Dr. Thaddeus Tingleberry||

    The "progressive" wing suffers no cognizable limits on government power... and they are more dangerous on the bench than conservatives.

    At what stage can states conjure into existence their own version of Marbury v. Madison, perhaps rhetorically buttressed by the 9th and 10th amendments?

    Clowns to the left of me, jokers to the right.... the clowns seem to be the one taking the red pen to the Constitution the most these days.

    What is the jurisprudential philosophy which allows judicial branch amendments to the Constitution?

    The ability to decide that a tax penalty both is and is not a tax is many things... but it is not proper judicial review, and stands in direct opposition to the bare idea of government with the Will and Consent of the People: This is government by Newspeak.

    "So much of left-wing thought is a kind of playing with fire by people who don't even know that fire is hot."
    - George Orwell

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  • Devil's Advocate||

    What the hell kind of spam filter does Reason use anyway? Legitimate, on-topic posts get marked as spam, but ones that start with "Learn how to make money using google" get through?

  • DWC||

    As far as the tax versus penalty thing goes - well, you know what they say, he who controls the language controls the debate. Or something like that. Just like the word "war" has lost its particular meaning and is now used to justify anything, we now have "tax" meaning whatever whoever wants it to mean.

  • Nike air max womens||

    Often five member majorities on the court are fragile, and bizarre compromises are necessary in order to keep a five-member majority from becoming a four-member minority. Perhaps Chief Justice Roberts really means what he wrote -- that congressional power to tax is without constitutional limit -- and his opinion is a faithful reflection of that view, without a political or legal or intra-court agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of Marshall's big government aphorisms: The power to tax is the power to destroy.

  • Contumacious||

    A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the government. The word has never been thought to connote the expropriation of money from one group for the benefit of another.

    U.S. v. BUTLER, 297 U.S. 1 (1936)

    297 U.S. 1

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