Amid all of Chief Justice John Roberts’s scholastic hairsplitting over whether ObamaCare imposes a tax or a penalty for failing to buy medical insurance, one passage should matter most to advocates of liberty:
Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax. [Emphasis added.]
We thus are “free” either to become customers of a government-licensed insurance company or to pay a special tax. But we are not free to opt out of this artificially constructed “choice” entirely.
There is much of the case against ObamaCare: It denies us the freedom to opt out. This will be defended as necessary for the operation of the health insurance market or for some other conception of the greater good. But the end does not justify the means. The politicians’ first resort is force. That makes them different from the rest of us.
With few exceptions (and getting fewer), the Constitution does not stand in their way. Courts have long held that Congress may do most anything through its taxing power, even regulating conduct it may not regulate directly. If anyone has doubts about how wide-ranging the taxing power is in the courts’ view, I refer her to Brushaber v. Union Pacific Railroad, in which the U.S. Supreme Court upheld the income tax in 1916.
As I pointed out previously:
Here the Court embraced the broadest possible interpretation of the federal taxing power—a power that, the Court said, predates the Sixteenth Amendment. The Court said: “That the authority conferred upon Congress by [section] 8 of article 1 ‘to lay and collect taxes, duties, imposts and excises’ is exhaustive and embraces every conceivable power of taxation has never been questioned. . . . And it has also never been questioned from the foundation . . . that there was authority given, as the part was included in the whole, to lay and collect income taxes. . . .” The Court went on to acknowledge: “the conceded complete and all-embracing taxing power”; “the complete and perfect delegation of the power to tax”; “the complete and all-embracing authority to tax”; and “the plenary power [to tax]” (emphasis added).
That was just in one paragraph!
Later in the opinion we find this: “[T]he all-embracing taxing authority possessed by Congress, including necessarily therein the power to impose income taxes. . . ” (emphasis added).
So it would appear that Congress has the constitutional authority to tax someone who does not buy insurance—Chief Justice Roberts and four other justices certainly think so. And under the rules of the game, the Constitution means what a Supreme Court majority says it means. To say something is constitutional, of course, is not to say that it is right. People often forget that. We must beware the dangerous temptation to read our own values into the Constitution and to assume that anything we think good is in there somewhere and anything we think is bad is forbidden. It ain’t necessarily so.
Now it is true that the dissent, apparently written by Justice Kennedy, makes plausible arguments against the constitutionality of using the taxing power to get us to buy insurance. But that’s how laws and constitutions are: The text always has some Rorschach quality to it. As libertarian legal scholar Randy Barnett put it, “While I do not share [the] view of law as radically indeterminate, I sure think it is . . . underdeterminate . . . .” In other words, human interpretation is inevitable. There’s no getting around this, no computer to be programmed to yield perfect decisions. (For more on this, see my “Where Is the Constitution.” )
Constitutional though it may be, ObamacCre is an act of aggression against Americans: Buy insurance (to state-dictated specifications) or some of your money will be taken from you, by force—even lethal force—if necessary. (Of course the pre-ObamaCare system was riddled with coercion. There was no free market.)
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