Nathan Sass

Roberts’ Folly

In Health Care Reform, Politics, Tax Policy, Taxes, Tea Party on June 28, 2012 at 4:50 PM

The Roberts ruling stating that Obamacare was constitutional, so long as it was considered to be a tax, raises an interesting thought exercise.

If you follow Roberts’s logic to its conclusion, you run into a whole slew of ridiculous outcomes, all of which are fully legitimate under this ruling.

Roberts held that the individual mandate was unconstitutional under the commerce clause, but that the “penalty” that enforces that unconstitutional individual mandate is not a penalty at all, but a tax.

Since the congress has almost unlimited authority to tax, Roberts held that the individual mandate, and therefore the rest of Obamacare, stands.

In one sentence, as long as you use the tax code, you can unconstitutionally regulate or mandate all you want using that tax as punishment for failure to comply.

Where else might this logic be applied?


Imagine a Democrat Congress and President Obama passing a new law that issues an individual mandate for all American households to purchase or lease a new GM or Chrysler vehicle within the next 12 months, and then every 3 years there after.  Since the US government (and therefore taxpayers) own a share of the firms, their sales are a matter of public interest.

Should people fail to buy a GM/Chrysler, they would be assessed a tax by the IRS equal to a year’s worth of the average new vehicle’s monthly payments on their income taxes.  Every year.  Until they buy GM/Chrysler, that is.

Using Roberts logic, a GM/Chrysler mandate would be unconstitutional, but the “tax” punishing you for failing to comply with the unconstitutional mandate would be just fine.  So if you didn’t want a GM/Chrysler vehicle, you would  be forced to pay the tax.  According to Roberts’ “logic”, this makes perfect sense.

You can apply this to almost anything you can imagine:

* Mandate the surrender of all registered firearms or pay an income tax penalty equal to the cost of that gun every year.  Guns are bad.  So what if there is a Second Amendment?  We can ignore it now using the tax code.  Roberts says so!  Give us your guns, or give us your money!

* Mandate purchase of CFL bulbs or pay a tax.  Energy use is a public concern!  If you will not reduce your energy use, we will make you pay!

* Mandate the regular use of public mass transit or pay an income tax penalty.  Leave that new GM/Chrysler at home, and ride the bus!  It’s good for you!  Leave the driving (and thinking and deciding) to us!

* Mandate the purchase of a minimum amount of corn per month or pay an income tax penalty.  Low corn prices hurt american farmers!  You should want to help farmers.  Allergic to corn or just don’t like it?  Too bad.

* Mandate donations to NPR or pay an income tax penalty.  Public radio is a vital national resource!  You should WANT to support it, and if you don’t we’ll make you anyway.

* Mandate the annual purchase and use of bicycles or pay an income tax penalty.  Biking is good for you, and too much driving is killing Mother Earth!  Don’t like to bike?  Too bad.  Pay up.

As you can see, there is now literally nothing under the sun that cannot be mandated by the federal government, so long as the “punishment” for failure to follow the orders of your superiors in Washington D.C. is nothing more than another line item on your 1040.

Roberts’ opinion is as dangerous as it is stupid.

In trying to limit federal power under the commerce clause, he opened the door to IGNORING IT ENTIRELY by using the tax code to punish people for failure to follow otherwise unconstitutional laws.

Therefore EVERYTHING is subject to federal regulation via taxation, no matter how unconstitutional, and the Constitution itself means almost nothing.

Roberts has created a monster with virtually no limits.

So now we get to see what a federal government unfettered by that pesky Constitution can do when given the freedom to control us via a “death by a thousand cuts” tax code that tells you what you can buy, do, wear, eat, and perhaps even watch, listen to, or even worship.

Thanks Justice Roberts.  It appears our faith in you as an intelligent and reasoned jurist was misplaced.  You are apparently neither intelligent nor reasoned.

You are just another social engineer in a black robe telling all the “stupid little people” what they must do.

  1. Well argued. There are several other disturbing points that need to be noted.

    First, this ruling doesn’t require any justification whatsoever for imposing a new tax. None. It doesn’t even matter whether a president or congressional leaders offer a compelling reason; their taxing power is absolute.

    Second, and most frightening, is that “the SCOTUS five” have now ruled that not only does government have the constitutional power to tax us for items and services we CHOOSE to purchase (thru sales taxes, gas taxes, etc.) but they can also tax us for items and services we CHOOSE to NOT purchase (health insurance coverage being merely a prototype). In effect, every POTENTIAL transaction, whether executed or not, is a constitutionally protected revenue source / punishment as long as it is codified in the form of a tax. That’s all-inclusive; there is little – if anything – that could not be construed to fall into one of those two categories (what we do purchase, what we don’t purchase).

    An overwhelming conservative win in November, hopefully invigorated by this ruling, may overturn Obamacare before it can wreak too much havoc on our economy, jobs, and quality of health care. That would help. But this new definition of the government’s inherent and constitutional taxation power will be devastating to our nation’s future solvency, freedom and sovereignty. And, short of a new case before a future SCOTUS that would provide them a new opportunity to rethink this awful “unintended consequence” it’s now set in stone.

    God help us.

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