We, being Christians with a decent respect for individual prudential judgement and conscience, ought not be absolute in our assertions that Roberts was placing his own reputation, or even the Court's, above the law. It's one thing to say "Sure looks to me like ..." and another to subscribe to the internet meme of Roberts=Traitor by reposting that pic on Facebook.
The Justice thanks you.
In addition, we should all be happy that Chief Justice John Roberts upheld, in sterling language, a conservative vision of the Commerce Clause in his ruling on ACA, aka Obamacare. Yes, we should be happy.
Boy! Are we happy!!
Then moving right along ... What we should not be happy about is Roberts' choice to uphold the mandate by expanding the taxing power. For expand it he did.
The narrow traditional understanding of taxation supposes that taxes exist for the purpose of raising revenue. Of course, throughout history taxes have also been used to reward behaviors of which the State approves and to punish behaviors that the State considers bad. On the reward side, countries seeking to raise their birth rate, whether for nefarious purposes (Nazi Germany) or benign (present-day European states facing demographic winter) will often give parents credits for bearing children. Likewise, governments use tax structures to reward businesses for employing their own citizens and discourage them from seeking labor elsewhere. Looking back into medieval history, both Christian and Moorish Spain used taxes to support religious observance, with Christians taxing Jews and Muslims applying the jizya to Christians and Jews both. Renaissance England saw the same sort of religious pressures—Roman Catholics and Protestant non-conformists paid stiffly for failing to attend Anglican services—although the financial burden was called a "fine" rather than a "tax". Modern America still uses taxes to modify behavior: see for example the painfully high taxes on tobacco products, or the tax breaks given to married couples.
It is therefore a fact, however unfortunate, that attempts to limit the tax power by asserting the definition of tax as a means a raising revenue are historically assailable. Moreover, the most basic understanding of economics assures us that even when taxes are not designed to affect behavior, they nonetheless do affect it on the margin by sightly raising the price of the good taxed. As tempting as it is to define "tax" as "revenue raiser" and nothing more, the fact remains that economically "tax," "reward," "fine," and "penalty" are intertwined.
Alright, smart alec, you say. So aren't you siding with Roberts then? Haven't you just defended his claim that the health insurance mandate is a tax? Haven't you just denied the most promising limiting principle for taxation? Haven't you just argued that there is no limit to what the government can tax? Hmmmmm?
No, I haven't. I began by saying that Roberts has expanded the tax power, and I meant it.
First, up until now, when Congress said a thing was a tax, it was a tax. If they didn't, it wasn't. Now, following The Roberts Precedent, any justice who happens to like a bit of federal legislation can define it (and thereby defend it) as a tax, whether it was passed as one or not. (Incidentally, there is a name for this thing that justices do when they interpret a law so as to make it appear more legal, or more palatable, than it was as passed, so that they can uphold it without losing face. It's called "activism.")
Secondly, up until now in America a tax was something that you paid for buying or owning something.
Forget ces stupides English and Spaniards.
You got a car, you paid tax. You owned a house, you paid tax. You pumped gas, you paid tax. You bought gum, you paid tax. There were a few notable exceptions—no one, alas, defends the death tax as the fed's percent on the sticker of the garments of eternal life—but these exceptions were just that: exceptions, and indeed widely hated exceptions, and even, it is worth noting, constitutionally dubious and debated exceptions.
But no longer need there be evidence of a purchase on your part before the federal government takes action. Indeed, no longer need there be activity on your part ...
Even dying and selling real estate are after all activities,
and as such trigger death and capital gains taxes respectively.
and as such trigger death and capital gains taxes respectively.
... in order for the government to take action. Just breathe. And if you're not breathing using the government-certified inhaler, you could be taxed for that. Because really, in these polluted days we all could use inhalers; and given the way the air is going those of us who aren't on inhalers now will need them soon enough; and if we don't buy them TODAY then Other People may get stuck with the job of buying them for us later on; and then We Will Be Greece; and then ...
You think I'm kidding, no? How about this one:
Mayor Bloomberg's NYC soda tax has been getting a lot of negative attention in the press lately. It's only part of the growing trend to make all Americans healthier, whether they like it or not. But if you can tax people not only on the food they buy, but also on the food they don't buy, then what's to stop a bill decreeing that all Americans who will not buy broccoli (yes, I said it! BROCCOLI!!) must pay a penalt—excuse me, a tax?
Oh, wait, never mind; we can call it a penalty, because words mean whatever we say they mean.
T'was brillig in the Court Supreme. Whatevs.
The truly unfortunate thing about the Broccoli Bill, would be the fact that there are NO religions out there which forbid the eating of broccoli, so it's not like the Catholics or someone would be able to get folks an exemption, much less take the heat for all the fried-chicken eaters by arguing that cruciferous mastication infringes upon their free exercise. And speaking of exercise, what's to stop anyone from penaliz—pardonnez mois, TAXING those of us who don't own a gym membership? The hair curls. Pigeons weep. Saints bleep. The very prospect is enough to make even a running rat like me sit down in protest.
And if this anxiety of mine seems exaggerated, be it known that no less a lawyer than Ted Olson made this point precisely, that National Federation of Independent Business v. Sebelius is an expansion of the tax power—complete with the broccoli purchasing example!—at the Federalist Society's annual Supreme Court Roundup.
So, mon petit freres, be afraid. Be very, very afraid. Call your congressman. Wave signs in front of the HHS offices. Say the Rosary on the Metro. Pray that Romney picks Paul Ryan for VP. Something! Because, while we're going to win the war, we do not want to lose another battle, ouis? Nor do we need to. Even in the little things, there can always be hope. Dave King can only hit fouls, but the Atoms win the superbowl. The Israelites got shuffled off to Babylon, but Esther got Hamman hanged. Thomas More lost his head, but the crown prince of Lichtenstein gets to keep his veto power. There is hope for the world.
Further Enlightening Reading:
Partly wrong: http://www.nationalreview.com/
Partly right: http://www.washingtontimes.