6.28.2012 – The Day America Ceased To Exist

The title may sound a little bit over the top.  On reflection however it is probablynot a strong enough statement.  In 2010 the 111th Congress bent the legislative machinery to its breaking point in to pass the Patient Affordable Care Act or Obamacare, Twenty-six states challenged aspects of the law, the most imnportant of which was the mandate that every person in the United States purcahse a government=approved health care insurance plan from a private insurance company or pay a penalty for failing to do so.  The Supreme Court of the United States was the best hope for invalidating the mandate on the grounds that Congress has no authority to create such a mandate.

This is a big deal.  One of the ofunding principles upon which our government was founded is that the Federal Government has powers limited to those stated in the Constitution.  Having secured freedom from England, each of the colonies was a sovereign entity.  In order to forge a new nation which could better defend itself from further predation from Europe and to enhance commercial activity, the states banded together in a federation.  There was much tussling back and forth over what power to cede to the new central government.  Hence they laid down a framework in the founding Constitution which gave certain enumerated powers to the central authority and left all else to the states.  The government was separated into three co-equal branches of government, legislative, executive and judicial.  Among the powers of the Judiciary is the power to decide whether laws passed by the legislative branch have a basis of authority in the constitution and do not conflict with anything in it.

In the 20th century the central government greatly expanded its reach, usually by taking advantage of a population confronted with grave crises.  Ite created a central bank.  It used various crises to enact legislative under the Commerce Clause of the constitution, an enumerated power giving the central authority over interstate commerce.  And it instituted an income tax.  Originally the income tax was declared unconstitutional as it was ruled byt SCOTUS to be a capitation or direct tax.  To get around this problem, the constitution was amended to grant a new power to the federal government, the power to tax income, essentially overriding the prohibition on direct and capitation taxes.

Obamacare Mandate
Now comes the 111th Congress to reform health care.  I think most people will agree that reform was sorely needed.  I also think that most people feel that in a country as wealthy as ours, we are not going to take the Spartan approach and let people die when they are ill, even if they have not purcahsed insurance.  Furthermore, for people with a chronic disease, the country is certainly wealthy enough to figure out a way to provide medical care to them.  Unfortunately the formulation chosen by Obama and his 111th Congress which was entirely controlled by Democrats included an affirmative mandate that every American purchase insurance or pay a penalty equal to 2.5% of income or some minimum dollar amount, whichever was greater.  The President and Congress went to extraordinary lengths at the time of passage to insist that this penalty was not a tax, with Obama giving an interview, most famously, with George Stephanapoulous in which he categorically rejected the statement that the mandate was a tax.  The bill passed with a minimum of votes and all of the votes were by Democrats.  It is likely that even then, had the mandate been characterized as a tax, Obamacare would likely not have passed even with Democratic votes as too many of them feared it would cost them election in 2010.

Twenty-six states ultimately joined a suit to challenge the mandate, among other things.  They prevailed in this suit in Federal District Court and then at the Circuit Court level setting up a hearing at the Supreme Court.  Three days were allotted for oral argument.  Oral arguments were heard in March 2012.  The decision was eagerly awaited and was delivered on the next to last week day in June, after the final day in session for the SCOTUS and on the last day opinions were released.

The Decision
Those of who take the IDEA of America seriously listened in horror as Chief Justice Roberts delivered the majority opinion largely upholding the law, with some modification of only the issue of states providing medicare or medicaid programs.  Roberts did indeed circumscribe Congress’ power under the commerce Clause.  But rather than thereby striking down the law, he instead took it upon himself to rewrite the law by recasting the Mandate as a tax and holding that Congress has the authority to levy such a tax.

The Consequences
With respect to the issue of the limits of the authority of the central government, casting the Mandate as a permissible tax rather than an exercise of power under the commerce clause is a distinction wothout a dofference.  There is now NO limit on the authority of the US legislative authority.  Congress now has the authority to order all Americans to eat Broccoli, or to have a body mass index under some threshold percentahe, or to buy a new car every 3 years or any thing else you can think of.  There is no STRUCTURAL impediment to their doing so., only political.  The country is subject to the whim of the majority.  If the majority consists of Progressive do-gooders who think they know how you need to live your life and they have the votes, well then we will all have to do as they say.  This is the kind of whimsical governance and tyrrany of the majority the Constitution was meant to prevent, and the SCOTUS is the keeper of the power to rise up against such usurpations.  They have just failed to do that.  Even if the next Congress manages to repeal Obamacare, there is no longer any structural restraint on the power of the US Congress, only political restraint.  This is why one can say that the Constitution has just been killed and America has died.  One of the key pillars that separated the US from failed states like pakistan has just been kicked out.  America is no longer America.

Defense of Roberts?
There are those who are trying to paint Roberts decision as some kind of brilliant move that reigned in Congress’ authority while limiting the Medicare power grab and putting the president and Democratic Senators on the defensive in the 2012 elections by making them justify the giant new tax represented by Obamacare. Personally I think that people are so horrified by the decision that their grief has only reached the first stage, denial.  So they make up reasons why this decision is not the disaster that it is in reality, They say that Roberts was concerned that striking down the law would be seen by the left as a political decision and thus undermine the idea that SCOTUS is above politics.  While it is very unseemly that the President and the liberal media would attempt to pressure the Court by essentially threatening them using the bully pulpit and the organs of public communication, I fail to see the decision as a face save for the court. .First of all, the very idea that the Chief Justice would engage in a naked and devious political maneuver and that these pundits APPLAUD this is very troubling.  That is exactly what happens in failed states like Pakistan where the court and the other political power centers do political battle.  This is not what the SCOTUS is supposed to do.  The job of SCOTUS is to rule on the legal merit of the cases at hand.  Roberts’ absurd decision in which he took judicial activism to an extreme in rewriting the law in direct contravention of the stated language as evidenced in the statute itself as well as by its authors severely lowers the standing of the Court.  With outrageous decisions like Kelo (public takings), Peterson (term limits) and now Obamacare, my opinion of the court went from about 30 to zero.  The SCOTUS in my view now has NO legitimacy.  And while I doubt anyone really cares what I think, I think that my view is held by an increasing number of people.

Then there is the question of the very basis of Roberts decision.  The Congress has the authority to tax income.  It did not have such authority originally.  It took a constitutional amendment to grant it because the Constitution actually prohibits the Central Government from levying direct taxes.  The mandate can therefore only be a permissible tax if it falls within the powers granted by the 16th Amendmnet.  So, is it a tax on income?  I do not really see how it is.  It is a penalty.  It is not levied generally, it is levied as a punsihment for some lack of activity that has been decreed by our now imperial Congress.

What now?
There is only one final legal recourse left and that is to repeal some or all of Obamacare.  If the mandate is now a tax, then it can be repealed by a simple majority vote in the Senate.  Of course this presupposes that the Republicans take the Senate, keep the House and that Romney beats Obama.  Even if however this happens and Obamacare is overturned and the Mandate stricken down, the precedent has now been set by SCOTUS that the United States Congress can decree any action on the part of its citizens that it wishes as long as they match it with a penalty.  They do not even have to call it a tax.  The SCOTUS will do that for them if necessary.  How nice.  What a joke.  A dangerous and sad joke.  My direct ancestors came here between 100 and 400 years ago.  I love the idea of America, a land where people are free to pursue their lives as they see fit.  This America is now a thing of the past.  Cynics will say that it was already gone.  But this is different.  Until last Thursday, the idea still existed that America was a Constitutional Republic with a government of limited powers.  The government no longer has limited powers.  It has plenary police powers.  John Roberts will go down in history as the man who killed the constitution of the United States.  He will not be lauded for the decision.  He cannot be removed from office except by impeachment and this was clearly not impeachable.  But if at all possible, he should no longer be Chief Justice.

Roberts is not impeachable.  Or is he?  How is it that he came to his decision?  The Kennedy opinion, as noted by others, reads like it was originally written as the majority opinion.  It refers to Ginsburg’s opinion as the dissent among other things.  This implies that Roberts changed his mind at some point relatively late in the game.  My own speculation is that he was threatened by something.  Not threatened by the insane rantings of Obama from the bully pulpit or the idiocy spewed by the media, but really threatened.  Like by men wearing black suits getting out of a black car at his house.  I imagine that they told him to find a way to uphold the case or else.  Or else what?  I do not know.  Did they have something on him he did not want revealed?  Did they simply threaten him?  If the former, then his integrity would be gone and he would be impeachable.  If the latter, well then we have a serious problem.  The decision is just so absurd, so unreasonable and so ill-thought out it is hard to believe that the Chief Justice of the supreme court, a person who is regarded as a top intellect, could possibly have come to the decision in a rational way.  So my guess is he was threatened.  Of course the other possibility is that he really is just an idiot.  One more lingering disaster of the disastrous Bush presidency.

Finally, in the opinion, Roberts wrote:
“People, for good reasons of their own, often fail to do things that would be good for them or good for society. Those failures – joined with the similar failures of others – can readily have a substantial effect on interstate commerce,” Roberts wrote in his opinion. “Under the government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act…  That is not the country the framers of our Constitution envision”.

And yet that is precisely the country that Mr. Roberts has delivered.  How does he envision any limitations on power under his tax theory?  Does he not see that Congress can now just impose a penalty on anything they wish to compel?  Anything!  And it will be constitutionally permissible under his new ruling.  And if not, then the court will have to enunciate some principle under which the taxing authority is limited.  From where will such a principle come?  Nowhere.  What we formerly knew as America is gone.

It will be the duty of every citizen to resist the unchecked intrusion of the government into our lives in any way possible.  In the extreme, an argument can be made that in burying the Constitution for good, the SCOTUS has removed the basis for ANY law.  That is to say, one is now free to disregard all law.  You do so at your peril of course.  Just because the idiots in charge do not see that there is no principled basis for our system any longer does not mean they do not have the will and the means to enforce whatever nonsense they dream up.  But it does mean everyone is justified in taking countermeasures.  Do not cooperate, or do so only slowly.  Use cash for everything, preferably in the underground economy to deprive the government of visibility and tax revenue.  Hopefully, if the law is not repealed, people will band together and just refuse to comply.  If the IRS asks for proof of your health insurance and 50 million people just say no, they will have a hard time enforcing it.    I am sure there are countless other ways to create friction for the operation of our elitist Progressive lords and masters.  Be creative.  Resist.

Comments are closed.