Does the Obamacare ruling have a silver lining?

Just minutes after the Supreme Court voted 5-4 to uphold the Affordable Care Act, the Internet was abuzz with various theories, trying to make sense of what, to many, seemed to be a fairly straightforward ruling. Vocal opponents of the bill appear to be grasping at straws, attempting to formulate some kind of explanation about the why of the decision, but the real focus should instead be on the what – that is, what exactly does it all mean?

The government’s argument in favor of the ACA was essentially two-fold.  First, it made its case on the back of the Commerce Clause, and this defense was rejected by at least five of the justices (Roberts included).  Court precedent maintains that, in relation to the Commerce Clause:

Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce” (cite – p4).

The first argument for the ACA maintained that the government could regulate economic activity as well as economic inactivity.  Essentially, if an individual refused to purchase health insurance, it would “affect interstate commerce” (cite – p15), and therefore the federal government would have the power to compel a purchase.

Roberts rejected the first argument, noting “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product” (emphasis mine) (cite – p18).  Fortunately, Roberts did not wish to create a powerful new precedent, and he concurred with Kennedy and the three conservative justices on this first issue.

In analyzing the second argument put forth in favor of the ACA, one should first fully digest more of Roberts’ words concerning the first:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority (emphasis mine) (cite – p20).

Here lies the hypocrisy of Chief Justice Roberts.  Part of his reasoning for rejecting the case on Commerce Clause grounds was because it would give virtually unlimited new power to Congress, yet by upholding the law on alternative grounds, he allows for precisely the same thing.

The second argument for the ACA, which was ultimately upheld, finds constitutional basis in Congress’s taxing power. Essentially Roberts argues that if an individual fails to purchase health insurance, the only consequence is that he must pay a penalty to the IRS.  Roberts:

The mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes… it may be within Congress’s constitutional power to tax (cite – p32).

Interestingly enough, the issue which ultimately propelled the ACA towards constitutionality was considered such a “feeble argument” by the four dissenters that, according to these justices, it was never even offered by the Government in their opening brief.

The dissent:

The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that [the mandate] is an exercise of the tax power (emphasis mine) (cite – p25).

They add:

One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression (emphasis mine) (cite – p26).

The new problem established by the majority ruling is that Roberts managed to set exactly the same precedent that he sought to avoid in the first argument.  Roberts has ceded to the Congress the power to regulate quite literally any and all individual activity.  The legislature now has the power to simply “establish a condition” exists and then, from that condition, “trigger a tax” (cite – p32).

If the condition is that people are not healthy enough, they can now tax people for not eating healthy foods (or vice-versa).  If the condition is that all people someday require funeral arrangements, they can levy a tax on those who do not purchase life insurance.

One man, Justice John Roberts, has recognized Congress’s power to tax both economic activity and potential inactivity, thus essentially removing all restraints on government power, and he’s done so on the back of what the dissenters referred to as a “feeble… fly-by-night argument.

However, despite Roberts’ seeming betrayal to Constitutional principles and common sense, there may be a silver lining in this all.  The Court maintains that individuals cannot be compelled into economic action directly–they can merely be penalized for certain inactions. Thus, we are not faced with a fundamentally different relationship between citizen and government, merely a relationship with a different dynamic. Congress cannot force me to buy broccoli for the health of my community. Instead, they can only attempt to tax me for my failure to do so.

We must now be aware, more than ever before, of what legislation is considered in Congress.  Simply because the legislators may enact a tax on anything they choose does not mean that we should simply roll over and take it.  In order to create a more legitimate relationship between citizen and state, we must focus on repealing America’s first-ever tax on inaction, and move forward, remaining vigilant against all of the inevitable power-grabs that are soon to follow.

See also:’s video with Peter Suderman.