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.)
Brought to You By . . . Conservative Jurisprudence
Finally, the irony of Roberts's opinion must not go unnoticed. His opinion, which is the object of such conservative scorn, is in fact right out of the Antonin Scalia (who dissented) and Robert Bork playbook. (Hat tip to Donald Boudreaux for first bringing this to my attention.) Bork and Justice Scalia believe that unelected judges should not interfere with the elected branches of government except when Congress violates an express, narrowly construed right (essentially the ones in the Bill of Rights). Other interference is branded "judicial activism." I once heard Justice Scalia say: "My job is not to strike down laws that are constitutional. My job is to strike down laws that are really unconstitutional." He went on to say that the view that there are unenumerated rights (such as referred to in the Ninth Amendment) would bring the "downfall of the republic."
Bork, whom Ronald Reagan tried to put on the Supreme Court, is beloved by conservatives for this philosophy, but when he was nominated the Cato Institute forcefully critiqued the Borkian philosophy, with people such as Stephen Macedo (The New Right versus the Constitution) and Randy Barnett arguing that Bork's view turns the Constitution on its head, seeing in it a few islands of rights in a vast sea of government powers. In response, they argued that courts should work from a presumption of liberty and strike down legislative acts that violate broadly conceived rights, both enumerated or unenumerated. (See Barnett's praise of Justice Kennedy's opinion in Lawrence v. Texas.)
Clearly, Roberts wrote his opinion in the Bork/Scalia spirit—even if Scalia doesn't like the outcome this time. (He's been accused of occasional activism himself.) Quoting Hooper v. California, Roberts wrote, "[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality." And he added, "Our permissive reading of these [delegated] powers is explained in part by a general reticence to invalidate the acts of the Nation's elected leaders."
Thus the path to the constitutional validation Obama was paved by conservative legal philosophy.
Sheldon Richman is editor of The Freeman, where this article originally appeared.