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Issue Analysis

    Tyranny of the Majority

    Chief Justice John Roberts delivered his opinion on the constitutionality of Obamacare, and has been widely hailed as either a savior of conservative jurisprudence or an unsubtle sellout in abandonment of it. Roberts clearly tried to protect the reputation of the Supreme Court. In the very act of trying, he failed to do so, and worse, failed to uphold the Constitution. 

    Roberts abdicated, or forgot, his responsibility to defend against the tyranny of the majority. In the area of taxation, as in any other, a majority can force its will on a minority. In fact one political movement, led by the Obama administration, is explicitly pitting "the 99%" against "the 1%" -- trying to use the government's taxing power to redistribute wealth. 

    The changes to the Medicaid portion of the law required monkeying around with its basic plumbing. The expansion of Medicaid was intended to operate with the establishment of exchanges, which in turn interact with the individual and employer mandates. The Medicaid expansion itself affects how individuals and employers behave. Roberts in effect rewrote the entire law.

    Roberts did not protect us against abuse of the Commerce Clause:

    Roberts’ refusal to justify Obamacare by creating even further expansions of the commerce power is part of the dicta of Roberts’ Obamacare opinion, it is not acta. That gives it little precedental value. Stare decisis applies to acta (the actual basis on which the ruling was made) not dicta (mere commentary on other matters).

    The argument would have been much stronger had Roberts simply agreed with the dissent and rejected the law on the basis of its overreach. 

    Ramesh Ponnuru made the case against taxes that are normative -- changing a societal norm -- versus taxes that simply raise revenue without targeting any particular behavior.

    To my mind, what made the individual mandate so obnoxious was that it carried the law’s moral authority to a field where it was unnecessary and inappropriate.

    We are told that "You can't legislate morality." All that really means is that the law never made a person moral, even though people are forced to behave themselves. But the law does change morality, slowly and over time. It's much better when the law reflects public morality, rather than trying to create it.

    Morality is the set of rules we think others ought to obey. Those rules may vary from person to person and place to place, and some may even reject the concept of morality as a set of rules -- but that's only because they haven't really introspected what behavior they expect other people to have. 

    And here we have Obamacare enforcing the moral stricture that everyone ought to have health insurance.  We see the desire to change or assert this new morality over and over again: that those without insurance raise the rates of those who do have it, and having health insurance is a way to make sure you're paying your own way. 

    Health insurance is a financial product, a means of amortizing the antipated costs of medical treatment. There is no intrinsic moral benefit to paying for health care with insurance versus paying for it some other way.

    We should not be required to purchase a product simply to make it cheaper for others, for a similar thing applies to toasters and cars as to insurance. If only a small number of people want a product, they must be willing to pay a higher portion of the fixed costs of supplying it.

    The advocates of Obamacare have, perhaps unconsciously, sought to make the purchase of health insurance a rule of morality. Since most people view it as a practical issue, rather than a moral one, there has been great opposition to creating a law from the tenuous moral position.

    Obamacare advocates, in other words, are attempting to legislate morality.

    But back to Roberts. Surely not all behavior-altering "taxes" are allowed. A poll tax, for instance, is out of bounds, as would be a tax on a particular political opinion, religious engagement, or any other tax that violated an enumerated right.

    If to be unconstitutional a tax must violate one of our rights (a position I do not hold, but it is enough for this argument), then isn't one of our rights not to enter into commerce? Roberts said as much in his decision; the Commerce Clause does not give Congress the power to mandate commerce -- ergo, we must have the fundamental right not to engage in it.

    What Roberts failed to reason out is that the taxes must be levied not either for the General Welfare or for the specific purposes or in the specific means listed in Article I, Secion 8, but for those purposes and for the General Welfare:

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfareof the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    That a tax is for the General Welfare is necessary, in other words, but it is not sufficient. 

    Roberts twisted and molded his opinion to shape the outcome he desired. Explicitly, that was to allow the law to be read as constitutional -- even though he had to rewrite the law to do so. But what he ended up with is a ruling that says that even if Congress would be denied a power otherwise, it can wrap a tax around an inactivity and do whatever it wants.

    if the Consitution gives Congress the power to compel any behavior, including those in violation of freedoms we never dreamed they would take away, what is the purpose of listing its powers? And if the Court is not there to protect the minority from the rule of a legislative majority, what then is its purpose?