The Supreme Court, the Mandate, and “Taxes”


In light of the Supreme Court’s decision to uphold the Patient Protection & Affordable Care Act (PPACA), conservatives have by and large been apoplectic. A picture with Chief Justice Roberts above the word “traitor” has made its way around Facebook, his Catholic faith has been called into question, and Mitt Romney’s campaign says 42,000 donations worth $4.2 million has been raised since the decision came out.

Voices more knowledgeable and of higher status than mine have commented at length about the Court’s decision, and so I won’t get into most of the decision, but I did want to make three brief comments:

First, if the individual mandate is a tax, Americans can now be forced to buy anything. From Right Wing News’ John Hawkins via Facebook via Twitter: “Per John Roberts, it would be constitutional to force every American to buy a Chevy Volt or Al Gore’s “Earth in the Balance.” Correct?” Related, from Hot Air’s Ed Morrissey this morning comes a mocking proposal that all Americans should have to buy guns or face a “tax.”

To me, the Court’s decision essentially supports a complete violation of the free will contract history of America. If someone puts a gun to my head and forces me to sign over all of my assets to him or her, that contract used to be null and void. With the allowance of the federal government to put what I’ll call a “tax gun” to my head and force me to buy insurance from a private entity, free will contracts have essentially been declared null and void, at least for the federal government.

A former co-worker who graduated from Harvard Law last year pointed out this morning that government has coerced private, non-free will actions in the past, such as by implementing minimum wage laws. However, we both agreed that a free will contract of employment has to be entered into before the minimum wage aspect of employment is implemented.

Second, taxes have traditionally been for actions — sales taxes for spending, income taxes for earning, cigarette taxes for smoking, etc. This mandate, for what I believe is the first time in America (though I could be wrong), “taxes” withholding action. And, to quote many conservatives, it does so in an extremely regressive fashion.

Lastly, Erick Erickson and George Will have said Chief Justice Roberts’ decision to support the individual mandate as a tax has given conservatives several political gifts, among them an energized base for the November elections, a deflated liberal base that was going to target the Court as illegitimate, and strong limits on expansions of the Commerce Clause. To which I respectfully reply: that’s not the job of a Supreme Court Justice.

Now, Erickson is a lawyer and George Will is about a gazillion times smarter than I am, so I may be speaking out of turn, but if Roberts decided as he did for these reasons I would have to say his choice smacks of judicial activism. If Roberts did indeed rule as he did to limit expansion of the Commerce Clause, and give conservatives a better chance of taking Congress and the Presidency in the fall, those are respectable political goals. But is that the job of a Supreme Court justice? To me, the job of the Supreme Court is to interpret the Constitution regardless of consequences — as conservatives rightly insisted when Justice Sotomayor was first nominated, and President Obama wanted a justice who had “empathy.” To step outside of that while on the bench is to violate the trust of the position of Supreme Court Justice.

Anyway, those are my thoughts. Try to have a great weekend.

[Originally posted at Race42012.com]

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