Led by Chief Justice John Roberts, the Supreme Court decided that Americans have no right to due process. Indeed, the Court not only upheld a fraud perpetrated on the public — it became a willing participant.
The assessment charged for failure to comply with ObamaCare’s “individual mandate,” which requires Americans to purchase health insurance, was presented to the country by the administration and the Democratic Congress as a penalty assessed for lawlessness — i.e., for refusing to honor this new legal requirement. It was strenuously denied by proponents that they were raising taxes.
The Obama administration, in particular, was adamant that the assessment was a penalty, not a tax: the president himself indignantly objected to a suggestion to the contrary in an ABC News interview with George Stephanopoulos. Obama officials also vigorously maintained that there had been no violation of the president’s oft-repeated campaign pledge not to raise taxes on the middle class. Moreover, as stingingly noted in the joint dissenting opinion of Justices Scalia, Kennedy, Thomas and Alito, the Democratic majority in Congress rejected an earlier version of the bill that became ObamaCare precisely because it imposed a tax — lawmakers intentionally substituted a mandate with a penalty for failure to comply so they could continue to contend that no one’s taxes were being raised.
Chief Justice Roberts claims that Congress simply used the wrong label. That is legerdemain. This is not a case in which Congress was confused, or inadvertently used the wrong term under circumstances where the error wasn’t called to its attention. The tax-or-penalty question was a hotly contested issue. As the dissent points out, it is one thing for a court to construe as a tax an exaction that “bore an agnostic label that does not entail the significant constitutional consequences of a penalty — such as ‘license’…. But we have never — never – treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a ‘penalty.’”
Let’s say that, back when I was a prosecutor, I tried and convicted a man on a charge of conspiring to sell narcotics. I can prove he was conspiring, but it was really to sell stolen property. I convict him but, on appeal, the court holds, “The prosecutor’s evidence that it was drugs the defendant conspired to sell is wholly lacking.” At that point, the conviction has to be dismissed, and if I want to try him a second time, this time for conspiring to sell stolen property, I’ve got to indict him and start the whole process over again.
Let’s suppose, however, that the appeals court instead said, “Eh, drugs, stolen property, what’s the big whup? You just wrote the wrong commodity into the indictment. So let’s not bother with a whole new trial at which you’d have to prove the correct charge to a jury. Let’s just rewrite the indictment and pretend that it says ‘stolen property’ instead of ‘narcotics.’ Then we can uphold the conviction and call it a day.”
That would never be permitted to happen — not even to a crook of whose guilt we were certain. It would be an outrageous violation of due process, a conviction obtained by false pretenses, that would not be allowed to stand.
Yet this is essentially what Chief Justice Roberts & Co. did. They said the American people are not entitled to an honest legislative process, one in which they can safely assume that when Congress intentionally uses words that have very different meanings and consequences — like tax and penalty — and when Congress adamantly insists that the foundation of legislation is one and not the other, the Court will honor, rather than rewrite, the legislative process. Meaning: if Congress was wrong, the resulting law will be struck down, and Congress will be told that, if it wants to pass the law, it has to do it honestly.
Just as an appeals court may not legitimately rewrite an indictment and revise what happened at a trial, neither may it legitimately rewrite a statute and fabricate an imaginary congressional record. But today, the Supreme Court rewrote a law — which it has no constitutional authority to do — and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.
The ObamaCare mandate was enacted as a penalty flowing from Congress’s Commerce Clause power. It has been upheld as a tax flowing from Congress’s power to tax-and-spend under the General Welfare Clause. As the dissent sharply demonstrates, the contention that the mandate could have been enacted as a tax is frivolous. Meanwhile our country, trillions of dollars in debt and rapidly sinking further, desperately needs a debate about the limits of Congress’s power to tax and spend for the general welfare.
Madison — correctly in my view — thought the General Welfare Clause (which is in the preamble to article I, section 8 — it is not a separate, enumerated power) was simply an affirmation that Congress had the power to tax and spend to achieve the specific grants of power exactingly set forth in that section. Hamilton, by contrast, argued that the General Welfare Clause was an independent (i.e., not restricted to the enumerated powers), open-ended grant of authority to the national government to tax and spend on anything that would support someone’s idea of the overall betterment of society. Madison rightly contended that Hamilton’s interpretation would defeat the purpose of enumerating Congress’s powers — namely, to limit it to only these functions and no others. It would also usurp the rights and authority of the states and the people, in whom were retained all rights and authority not expressly assigned to the national government by the Constitution.
During the New Deal, under FDR’s court-packing threats, the Supreme Court adopted Hamilton’s view — enabling Congress to enact the New Deal, the Great Society, Social Security, Medicare, Medicaid, and innumerable other programs for which there is no enumerated power in the Constitution. These programs are unsustainable and leading us over the economic cliff, besides intruding on the domain of state power. Had ObamaCare been honestly presented as a tax, or had the Court acted properly by striking it down as an illegitimate use of the commerce power and telling Congress that if it wanted to pass the bill as a tax it would have to pass the bill as a tax, our dire financial straits might have forced this much needed debate about the limits of congressional welfare power.
We have now lost that opportunity through fraud: fraud in the legislative action, and fraud in the judicial review. Due process would not allow this to be done to a criminal, but the Supreme Court has decided that Americans will have to live with it.
Pajamas Media: Andrew C. McCarthy
June 29, 2012