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Maybe George Will is correct in calling Chief Justice John Roberts’ upholding of Obamacare a “substantial victory” for supporters of limited government. I’m trying real hard to believe that. I would like ever so much to believe that.
And who knows, maybe the ruling would be a big win in a world where the present and future Congress — and the present and future Supreme Court — were somehow filled with vat-brewed clones of Roberts — cautious, careful, temperate men and women mindful of history, tradition, experience and precedent.
But I worry that activist judges who inhabit reality as we know it will kick through Roberts’ barriers around the Commerce Clause like it was old drywall and snap the shackles he’s created for it as would old-time circus strongmen.
As for Congress, the animating force of today’s liberal legislators is one that is both extractive and redistributive in the service of expanding and financing the Welfare State. Handing it a possibly more expansive taxing power is unexpected gift.
And it is one unlikely to be wasted by innovative politicians on the left. As the Wall Street Journal puts it, “The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it call them something else and judge call them taxes.” Richard Epstein on this point:
The earlier portion of the Chief Justice’s opinion noted the huge expansion in federal power that could arise if the government were permitted to regulate various forms of inactivity. What possible argument then could be put forward to say that the same risks do not apply to the expansion of the taxing authority to those same forms of inactivity, in ways that it has never been exercised before. The two examples that the Chief Justice gives are the tax on buying gasoline or earning income. Both of those are obvious activities that have long been regarded as acceptable bases for taxation. But not buying health insurance is not an activity. I am not aware of any tax imposed on individuals for not buying gasoline and not earning income, or not taking a bath or not working in a home office. To allow this to stand as a tax is to accept the same kind of absurdity that was rejected in connection with the commerce power. Intellectually shabby, to say the least.
What else will American be required to do or else suffer a tax? I’m sure climate change activists and Occupy radicals will be giving the Roberts opinion and its “verbal wizardry” — the scathing words of Alito, Kennedy, Scalia and Thomas — a particularly close reading in coming days.
The power to tax is not only the power to destroy but also, in the wrong hands, the power to a bit more easily recreate America into a European-style entitlement state — or anything else a government of men rather than laws decides.
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