Celebrate while you can, Democrats

| July 3 2012
Christopher Cook

If I had my druthers, I would rather that the Supreme Court had ruled all of Obama unconstitutional. They got two things very right, but the one thing they got wrong, they got—on the merits—spectacularly wrong. If Congress can demand that we buy something and then tax us if we refuse, that is the equivalent of an involuntary contract. You cannot tell me that it’s not an involuntary contract because, “Hey, you can “choose” to pay the tax instead.” There is no choice involved when you are putting a gun to my head and giving me a choice between an involuntary contract, a tax/penalty, or jail. That is coercion, and it is a violation not only of the spirit of the Constitution, but the millennium of English common law whence we derived much of our own jurisprudence.

That being, there are many silver linings to be found; others have found them, and I have as well. The final chapter is never written; this is an ongoing struggle and we have much to look forward to, and reasons to be hopeful. Here are a few more:

In Randy Barnett says Roberts’ tax power argument is “lame” but “easily fixed,” Phillip Klein points out that the architect of much of the legal challenge to Obamacare is pleased by the rollback of Commerce and Necessary and Proper Clause jurisprudence, but unimpressed by the tax argument.

In his view, it’s political poison . . .

 “Chief Justice Roberts rewrote the (health care) statute to change this from a requirement, or mandate, to an option to buy insurance or pay a penalty,” Barnett explained. “This is far less dangerous than had the mandate been upheld under the commerce power. Because a Commerce Clause regulation could be upheld up to and including imprisonment as drug laws are, but this power is limited to paying a tax (for those who pay taxes) and can be as politically toxic as taxes are.”

. . . and Congress isn’t going to dare try it again for a while.

I asked him whether a future Congress could just repeat what we saw in this instance – call a mandate a penalty for the purposes of passing the bill, then switch around and call it a tax in court.

“That is never going to happen again,” he insisted. “No one is ever going to fall for that again…The findings in the (health care) bill were Commerce Clause. The findings in the next bill will have to be taxing power.”

In other words, future Congresses would have to explicitly use taxing power justifications for any future economic mandates.

He predicted, “We have years before any future Congress is going to work up the nerve to do anything like a broccoli mandate. If we don’t change the political and legal culture between now and then, broccoli mandates are going to be the least of our worries.”

The taxing power portion of the ruling is weak and won’t survive:

“It’s lame,” he said. “The reasoning is transparently lame, and that doesn’t hurt, that helps. Transparently lame reasoning doesn’t stand the test of time. What will stand the test of time is everything he had to say about the Commerce Clause and Necessary and Proper Clause, because that was hard-edged. And that had five votes in support of it.” [ . . . ]

He explained, “If we do change the legal culture, even in the slightest, and we do get new justices on the Court, they are not going to have any problem with this precedent on the tax power. It was lame, it was (Roberts’) own opinion, it built in trip wires that could easily be used in the future by a court that cared. This tax thing is easily fixed. A Commerce Clause ruling that Congress had unlimited discretion to pick whatever means are necessary to effectuate its Commerce Clause powers, see McCullouch v. Maryland, we would never get that undone. This was huge.” [ . . . ]

“This case reaffirms everything we said about constitutionally limited government. Everything that the other side has said was frivolous has been affirmed by the Court. It is now the law. It will be taught in every constitutional law class. You think anybody is going to spend time teaching this tax power argument in con law class?”

I am appalled by the taxing power ruling. Perhaps one day we will know what was going through Roberts’ mind. Perhaps he really did want to legitimate the much more important ruling on the Commerce Clause and start rolling back on the idea that the Necessary and Proper Clause can justify anything at all. On the merits, the tax portion of this ruling is terrible, but maybe Roberts’ ruling will, in the long run, prove to work out better. I am at least comforted by Randy Barnett’s contention that . . .

“I always thought, these two rows rose and fell together — if we lost Obamacare, we’d lose the Constitution, and if we won on the Constitution, we’d win on Obamacare,” he said. “But if you ask me what I’d rather pick in court, which one I would win on, I’d pick winning on the Constitution and losing Obamacare, because the people can beat Obamacare, but if we had lost in court on the Constitution, it would take a generation of elections to get the Constitution back.”

Barnett criticized Roberts’ reasoning in upholding the mandate on taxing grounds, but said it was too flimsy to survive as constitutional doctrine.

Read the whole thing. In a narrow sense, Democrats and the left have reason to celebrate. Their legislation survived. However, much of the jurisprudence upon which they have been relying for the growth of their statist project for the last century has just been taken out from under them. If Romney wins and puts one or two more genuine originalists on the court, that will be the start of a major move away from big government.

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  1. […] In Celebrate while you can, Democrats, we highlight an argument from legal scholar and chief Obamacare opponent Randy Barnett that the taxing power argument of the Obamacare decision is weak and will not stand for long, even if Congress is willing to put it to the test. […]