Madison in Tatters

The Supreme Court has, as I am sure many of you are aware, narrowly upheld Obamacare against constitutional challenge. Many say that this isn’t too big a deal, if we just elect Republicans to the Presidency and Senate, and hold the House, we can repeal it and it does not matter what the Court said because Congress has the power to undo what it has the power to do. This is incredibly shortsighted and fails to grasp that what the Court has done, in effect, is fundamentally alter the nature of the American government. Not merely this decision, but the recent decision to tell the States they cannot decide for themselves how to sentence juvenile murderers, and the decision to tell the States that they cannot maintain their sovereign status even if fully compliant with federal law. Moreover, the Court has just engaged in a clear case of violating the separation of powers among the co-equal branches of the federal government. Has there ever been a more clear case of legislating from the bench? I doubt it. Even the majority opinion concedes their reading of the individual mandate as a tax is not “straightforward” nor is it the most “natural” reading, but on the basis of “precedent” points out it doesn’t have to be an easy reading-if they can go out of their way to save a poorly written law, precedent says they should. The dissenting opinion rightly sees this as quite the stretch, as not only did the government, but also the majority, agree that it was not a tax “for purposes of” the Anti-Injunction Act (that is, the ruled it not a tax for the issue of legal standing) the law is clearly written so that this alleged “tax” is a penalty, a distinction that makes the whole difference as to whether the mandate passes muster. The issue is clearly expounded upon by the dissent. The majority’s opinion is baffling, beyond being wrong.

Truly this is the death Madison’s Federalist vision. Every element of restraint on the government’s power is now gone. The government may now undertake to compel any action of Americans under the power to tax-not merely health insurance, but to use an example given by majority opinion author Roberts, a mandate to purchase energy efficient windows, could be enforced by a “tax.” What the government cannot compel of people is unclear because frankly, it really has no limits any longer. Under penalty of “taxation” under penalty of criminal prosecution, anything may now be required of Americans by their own government. None of this is likely to ever be undone. Congresses will come and go, but in the modern era, Supreme Court cases are essentially forever.

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