Judge Roberts, Obamacare, and the Constitution

by Dr. Michael Farris
July 05, 2012

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Having carefully reviewed Justice John Roberts' baffling opinion on Obamacare this past week, I can say without doubt that, contrary to the opinions held by many, he is not a genius. And he distinctly did not follow a conservative path.

As I see it, the core issue surrounding the Supreme Court’s decision upholding President Barack Obama’s health care overhaul is this: Can Congress tax and spend for purposes that it cannot directly regulate?

In the first place, to construe the health care measure as a tax, Justice Roberts must have had to do mental gymnastics. For its part, Congress deliberately did not call it a tax but a penalty. In legal terms, lawsuits against taxes must wait until people actually have to pay the tax — a result of the Anti-Tax Injunction Act.

Roberts said it is not a tax for the purpose of the Anti-Injunction Act, and yet it is a tax for constitutional purposes even though Congress said… it was not a tax. Roberts' cryptic "logic" on this point reminds me of the young man who murdered his parents and then argued that he was entitled to mercy because he was an orphan.

There are a number of cases, matters of legislative precedence, on which Roberts relies to justify the view that Congress can tax for purposes that it cannot regulate. He is clearly stretching in some of those cases, though in others he uses them more appropriately.

All of which leads us to the ultimate question: Should Justice Roberts be following precedent or the actual text of the Constitution?

Joseph Story—who Roberts cites in his opinion—wrote the leading early treatise on the meaning of the Constitution. Story said that "Congress is not empowered to tax for those purposes which are within the exclusive province of the states."

Roberts made it clear that health insurance questions are exclusively within the power of the states. Story would agree with that much but would then add, if you can't legislate for that purpose, neither can you tax for it.

Story's view was grounded in a detailed recitation of the record from the Constitutional Convention. Story got the original meaning of the Constitution right. Roberts did not.

At best, in his decision Roberts was a creative and faithful follower of Supreme Court precedent. In light of the original meaning of the Constitution, however, most of that precedent is wrong.

Roberts faced a divide in the road: “Will I take this Court back in the direction of original meaning or will I continue the path of ever-expanding federal power?” Precedent supported the path he took. The real law (that is, the Constitution as it was written) clearly stands to the contrary.

He took an oath—not to Supreme Court precedent—but to follow the Constitution itself. I think he should have been loyal to his oath.

The amount of harm done by this decision cannot be calculated. It means that Congress can regulate every aspect of our lives so long as there is a tax involved. Congress can ban spanking by enacting a $1000 tax on those who do. Congress can ban homeschooling in a similar fashion.

Any constitutional theory that leaves Congress with unlimited power is simply wrong. Justice Roberts should have known better.

Michael P. Farris served as founding president of Patrick Henry College (2000-2006) and is now Chancellor. In addition to teaching Constitutional Law and coaching the Moot Court team, he serves as Chairman of the Home School Legal Defense Association. Read full bio.

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