The Roberts Decision: Stop Complaining and FIGHT

From: Paul M.

Sent: July 20, 2012

To: undisclosed recipients

Subject: Fw: The Roberts Decision: Stop Complaining and FIGHT

For your consideration.
"The American war is over; but this far from being the case with the American revolution. On the contrary, nothing but the first act of the drama is closed. It remains yet to establish and perfect our new forms of government, and to prepare the principles, morals, and manners of our citizens for these forms of government after they are established and brought to perfection." --Benjamin Rush, letter to Price, 1786

No matter how you slice/dice the decision, the bottom line is that unless we can give The Usurper, and all his allies, and all the fellow travelers in both parties their walking papers in November, and elect Constitutionalists, our country, our freedoms will be history.

Paul

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The ObamaCare Decision: Pandora’s New Box

By Robert Redler, attorney at law
Following the Supreme Court’s decision upholding ObamaCare, there have been many articles, news reports, e-mail comments and blogs offering the opinions of journalists and writers who have neither a legal background nor a background in constitutional principles.

Of course, those in favor of ObamaCare have claimed victory, as they justly have the right. Yet, opponents to ObamaCare are now claiming that the Court’s ruling, with the lead opinion written by Justice Roberts, was a great service to the conservative cause. This approach, however, is not only wrong, but dangerous since it provides a false sense of security.

Justice Roberts began his opinion with a remarkably conservative, constitutional review. He continually quoted the Federalist papers, the earliest Supreme Court decisions and Tenth Amendment rights of the states. He then proceeded to dismantle the government’s argument that ObamaCare’s individual mandate to buy insurance is a valid exercise of the ability of Congress to regulate interstate commerce. He even repeatedly and specifically referred to Justice Ginsberg’s dissenting arguments and reduced them to a virtual waste of paper and ink.

The conclusion was resounding: under the commerce clause, the government cannot force people to buy insurance or any other product when those people are not already in the market.

If we visualized Justice Roberts penning his opinion, his approach was so conservative that it would be easy to picture him dressed as one of the framers of the Constitution. We would never have suspected that gift-wrapped present he next handed to us was, in reality, Pandora’s box.

As a means of opening that box, he wrote that, although ObamaCare’s mandate to buy insurance cannot be upheld under the commerce clause, the penalty for failing to buy insurance is, in reality, not a penalty, but a tax (i.e. a rose ... or in this case, poison ivy ... by another name) which can be upheld under the power of Congress to tax.

Conservative commentary has hailed this declaration as a victory by destroying President Obama’s claim that the Act did not raise taxes. Moreover, the one widely circulated commentary states Justice Roberts’ ruling means "Congress can’t compel American citizens to purchase anything. Ever."

Such commentary is unintentionally misleading for its failure to recognize the tax ruling as the Pandora’s box which it is.

True, it can now it can be argued the President’s tax promise has failed. Yet, from the beginning, it was widely recognized that ObamaCare includes 17 to 22 new taxes. This is nothing new, and nothing that the right spin cannot neutralize.

While conservatives may relish fifteen minutes of talking points concerning no tax promises, the true import and grave danger of the tax ruling is the vast authority now placed into the hands of Congress.

To recognize the newly approved taxing power of Congress, we can look to the history of the commerce clause, then recognize that, by analogy, the same is about to take place with the taxation clause.

The commerce clause grants Congress the power to "regulate commerce ... among the several states ..." This was originally applied to regulate actual interstate trade. But in the early part of the twentieth century, the Supreme Court so expanded the idea of regulating actual interstate trade to the point of stating that if activity wholly contained within a state has a "substantial effect" on interstate trade it can be regulated.

What did the new concept of "substantial effect" mean in practice? Consider the 1942 case responding to a law passed by Congress which limited the amount of wheat a farmer could grow and place into commerce. A particular farmer then also grew wheat for the private consumption of his family. This wheat never left his state, and was never sold. Yet the Supreme Court upheld a prohibition on his activity. The essence of the ruling in that case and many subsequent analogous cases was and remains that, even though the wheat would not enter interstate commerce, if many farmers grew their own wheat for their personal consumption, it would have an impact upon the wheat which is sold interstate.

That is, regulation of interstate commerce has expanded to the regulation of activity wholly internal to a single state, if it has some arguable effect on interstate trade.

In fact, Congress has employed the expansive interpretation of the commerce clause to drive a vast amount of legislation throughout the twentieth century. The ObamaCare opinion jointly authored by Justices Scalia, Kennedy, Thomas and Alito commented about this expansion: "Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development."

What does this mean? First, saying "Congress can’t compel American citizens to purchase anything. Ever" is wrong. A change in Justices will expand Congress’ powers to do just that.

Yet the more important meaning is that while twentieth century Congressional legislation was driven by an increasingly expanding commerce clause, Justice Roberts has now opened the twenty-first century to, as yet to be imagined, new, expansive uses for taxes levied by Congress which parallel the exponential growth of the commerce clause.

When the government was defending ObamaCare in oral arguments before the Supreme Court, the government attorney was facetiously asked whether Congress could mandate that people buy broccoli, since the commerce clause allowed the regulation of food in interstate commerce. In his opinion, Justice Roberts answered the question himself by definitively stating such a mandate was beyond the power of Congress. Yet, sadly, while we cannot be forced to buy broccoli under Congress’ power to regulate commerce, we can now be penalized (i.e. pay a tax) for failure to do so.

How can this new approach toward taxes be applied in practice? Justice Roberts himself provided an example: a $50 "tax" can be levied on homeowners for not installing energy efficient windows. He did not say whether that tax is yearly, monthly or even per window.

If we can be "taxed" for failure to buy insurance and buy energy efficient windows, virtually every aspect of our lives can be controlled through penalty type taxes.

The conclusion then, is not that the Supreme Court decision has a silver lining, but it has opened a Pandora’s box allowing government to control essentially all it desires by economic coercion. Even if ObamaCare is repealed during the next administration, prepare to eat more broccoli.