General Welfare Fraud: Roberts creates a tax loophole

The Shinbone: The Frontier of the Free Press Blog ^ | July 4, 2012 | Daniel Clark

[Daniel Clark]

General Welfare Fraud: Roberts creates a tax loophole by Daniel Clark

It’s fitting that the Supreme Court handed down its Obamacare ruling the same week that it threw out the “stolen valor” law against falsely claiming military decorations, because it has now enabled unconstitutional federal power grabs to go around masquerading as “General Welfare,” without any legal consequence.

Chief Justice John Roberts, in his single-minded determination to save the Democrats’ health care law from its own terminal defects, ruled it constitutional by recasting the individual mandate penalty as a tax. Justice Antonin Scalia spent a considerable part of his dissent explaining that, where the law is concerned, penalties and taxes are mutually exclusive categories. A penalty is assessed for the purpose of deterring a proscribed activity (or lack thereof, in this case), whereas a tax is levied against a legal activity for the purpose of raising revenue. Since the purpose in this case is to compel individuals to buy health insurance, the penalty for not doing so cannot be defined as a tax.

Scalia is correct as usual, but so what if he wasn’t? Let’s assume, for the sake of argument, that the individual mandate penalty is, constitutionally speaking, a tax. How does that render the mandate constitutional?

Roberts’ argument is that the mandate, being enforced by a tax, is validated by the clause in Article I Section 8 of the Constitution that empowers Congress to levy and collect taxes for the purpose of promoting the “general welfare.” Like many before him, he is taking that term to be roughly equivalent to the “common good,” and concluding that liberal government doogoodism is broadly endorsed by the Constitution.

What that clause actually says is that Congress shall have the power to lay and collect taxes “to pay the Debts and provide for the common Defence and general Welfare of the United States.” It is the welfare of the nation that is addressed here, not that of individual citizens or demographic groups. The fact that a majority of states had sued the federal government over this law ought to have taken the general welfare argument off the table from the outset.

Moreover, there is another mention of the phrase “general welfare” in the Constitution, in the Preamble, which lists its promotion among the reasons for which the document was written. If the Constitution is the instrument for promoting the general welfare, then Article I Section 8 cannot be understood to endorse an extraconstitutional act like requiring individuals to purchase health insurance.

Had our founders meant to allow the federal government to do whatever it felt was necessary for the common good, they would have simply granted Congress the power to provide for the general welfare, but they didn’t. They only wrote that Congress shall have the power to lay and collect taxes for that purpose. In light of the Preamble, this can only mean that Congress shall raise the revenues necessary to exercise those powers that are actually enumerated in the Constitution.

Roberts instead characterizes the congressional power of taxation as if it were the magical key that unlocks the escape hatch from the Constitution. He tells us so when he explains that an otherwise unconstitutional law is made to be constitutional by the implementation of a tax. Imagine trying to explain that one to James Madison.

This magical key theory is not in the Constitution, but it is now Supreme Court precedent, which makes it even more indelible. The misguided judicial principle of stare decisis (“to stand by that which is decided”) is adhered to far more strictly than the actual, written law of our land. Even if Obamacare is repealed legislatively, the Roberts rule will remain.

Next time the Democrats win back majorities like they had in 2009, they could require that we all paint the roofs of our houses white in order to combat the effects of “climate change.” As long as the initiative included a tax to pay for the painting, how could Roberts resist joining the four liberal justices to approve it? The tyrannical possibilities are nearly limitless.

Remember that it was Roberts who bungled the Presidential Oath of Office while administering it to President-elect Obama at his inauguration. We must now consider the possibility that he got it wrong on purpose, in order to give Obama a technicality under which he would not be bound to protect and defend the Constitution after all. Just think of it as another clever escape plan from that keeper of the magical keys, the wizardly Chief Justice John Roberts.

-- Daniel Clark is a writer from Pittsburgh, Pennsylvania. He is the author and editor of a web publication called The Shinbone: The Frontier of the Free Press, where he also publishes a seasonal sports digest as The College Football Czar.

[DanMiller]

As long as the initiative included a tax to pay for the painting, how could Roberts resist joining the four liberal justices to approve it? The tyrannical possibilities are nearly limitless.

The problem as I see it is that the Congress could levy a tax for not painting it, just as the Chief Justice said the Congress could levy a tax for not buying gasoline -- even though he seems to have forgot that the Congress had never done so as to gasoline or anything else. That was the principal justification for approving the ObamaCare mandate as constitutional under the power to tax.

The law has long seemed clear that the Congress can encourage people to purchase goods and services by reducing their taxes for doing so. Whether it is wise policy is not up to the Court.

By giving its approval to the coercive taxing of inactivity as consistent with encouraging activity by offering reduced taxes, the Court took a big step in the wrong direction.

The Court also held the amount of the ObamaCare mandate "tax" reasonable, but gave no guidance as to what in future cases would be deemed sufficiently unreasonable to amount to an unconstitutional penalty. The decision will create rather a mess.

[Fully Awake DAV]

Ok....someone....anyone....remind me how a court....can re-write any law? Or in other words re-write the context of the lawsuit. The lawsuit against the obamacare (aka ACA) was based on the Individual Mandate, also the ACA references Individual Mandate, not tax. Personally from a logical, legal and common sense approach, the ruling is null and void.

[DanMiller]

The Supreme Court can say and do whatever pleases five or more justices. The question is not "can they" but "should they."

There is ample precedent that the Court should not rewrite the laws, yet the Roberts Court did so. The only guard against that is to have the Senate do its job when giving its "advice and consent" to presidential appointees; even that does not always work because justices change their views over time and due to desires to do what is "right." They rarely should but they do.

No President is prescient about what a Supreme Court appointee may do years after he is confirmed, and neither is the Senate. I don't know of any solution beyond electing Presidents and CongressCritters who will do their best, imperfect though it may be, to avoid that sort of thing. And that's up to us.

[Fully Awake DAV]

I know what you are saying, but it does not change the situation. If someone is taken to court over a crime of stealing a candy bar, the court cannot judge that person for a different crime, say using the pay toilet and not paying, unless that crime is specifically addressed in the summons, basically rewriting case and never rendering a decision of candy bar theft.
My point still stands, the supreme court was not tasked with determining what to call the individual mandate, they were tasked on whether or not it was constitutional.