The Constitution Is What They Make It


“You are free to not eat broccoli, but if you don’t the government will impose a penalty on you. This penalty is really just a tax and since the government has the power to tax for all sorts of reasons, they can tax you if you don’t eat broccoli.”

This is the logic of Justice Roberts argument in the Obamacare case that was handed down today.

This should not surprise us because the Constitution is whatever the Justices wish it to be. Now they have handed the government another mandate to regulate our behavior. As we know they can and do regulate our behavior already. For example, if you smoke, they will tax your habit heavily. It is not a giant leap to force you to do something they want you to do by penalizing you for not doing it. According to today’s ruling, there is nothing in the Constitution preventing them from doing this.

The technical details of the ruling are interesting but very disappointing. Roberts’ justification of the Obamacare Act relied on the taxing power of the federal government as well as the general welfare clause.  Roberts shot down the government’s reliance on the Commerce Clause to mandate our behavior. He wrote, “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular [interstate] transactions.” Some clever commenters are saying, “Aha, that sneaky old Roberts. He always wanted to limit the wide powers of the Commerce Clause and this is how he did it.”

This limitation of the Commerce Clause may or may not be significant. Only future cases will answer this question. Based on the history of the Court, I have my doubts that this will impose any new restrictions on the government’s broad powers to regulate the economy.

The argument that a penalty was really a tax was, to say the least, a novel approach since the Administration thought it was a penalty and not a “tax” (the statute clearly points this out). Thus Justice Scalia’s famous query during argument that the government could force us to eat broccoli under the government’s theory of the Commerce Clause was cleverly turned aside by appearing to support the logic of Scalia’s broccoli argument yet upholding the law under the taxing authority.

The tax argument by Roberts is a good example of finding means to justify and end.

None of this is to say that the payment is not intended to affect individual conduct.  Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new.  Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.

Roberts’ final words on the subject:

But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.  Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

Roberts’ logic is tenuous: none of the examples of taxation he cites impose a “tax” on something someone doesn’t do. If I wish to buy expensive heavily taxed imported goods, that’s my choice. Under his logic they could “tax” me for not buying domestic goods because it serves the goal of fostering “the growth of domestic industry.” Roberts just makes it up to fit his intended outcome.

The Court’s dissenters make quick work of Justice Roberts’ invention (turning a penalty into a tax). Justice Kennedy’s dissent on behalf of Scalia, Thomas, and Alito:

Our cases establish a clear line between a tax and a penalty: “[A] tax is an enforced contribution to provide for the support of government; a penalty …  is an exaction imposed by statute as punishment for an unlawful act.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty.  But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

It’s not a tax, it’s a penalty.

This use of the taxing power was hailed by most legal scholars this morning as a proper conclusion by Roberts. Most whom I heard couldn’t understand why anyone would think it would not pass constitutional muster. Most legal scholars see nothing wrong with expanding federal power to implement social policies they believe are beneficial. This is the “living constitution” theory which has guided legal scholarship for many years, most specifically since FDR’s New Deal. But it is an old argument going back to the Federalists and the Jeffersonian Republicans.

What Justice Roberts has done may be another “switch in time to save nine.”* Perhaps it is a bit hyperbolic to so suggest this, but clearly he wanted to uphold Obamacare and take the Court out of the political and policy spotlight by this legal sleight of hand. Left-wing commentators are saying how crafty the Justice is to uphold this worthy social policy on the one hand, and yet hew to his supposedly conservative roots with his Commerce Clause arguments on the other. Most of these people could care less about the Constitution: to them the end justifies the means in every extension of federal power.

This is the problem with progressives who think the government has the right to regulate the economy in any way Congress deems it, and the Court is full of progressives. Justice Ginsberg in her opinion said, “The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”

The Constitution has been gutted by the Supreme Court, and their butchers work continues. The Founders’ fear of a powerful central government has been betrayed by the Court. Our original constitutional limitations on federal power have been ground down by redefining the Constitution to suit government goals. A Court can now find constitutional power for almost anything the government wishes to do. 

With but a few exceptions we now closely resemble the Nanny states of Europe. And those countries have powerful central governments with few limitations on their power. Now with government-run health care, it would be difficult to distinguish the U.S. from, say, France. After 225 years, we are “them”. Thank you, Justice Roberts for doing your part.


*It is ironic that the justice who switched his vote in the famous “switch” case ( West Coast Hotel Co. v. Parrish) was also a Roberts, Owen Roberts.


18 comments to The Constitution Is What They Make It

  • dd

    this is sad day for our country. this is just devastating, in my view. game over for the once great American economic engine.

    • “this is just devastating, in my view. game over for the once great American economic engine.”


      “this is just devastating, in my view. game over for the once great America.”


  • Californio

    June 28, 2012, America officially became a EuroTrashed Socialist State – very very sad.

  • More and more I am convinced there should be term limits to supreme court justices, as they have long since been politically compromised, thanks to FDR, and the idea that they are politically impartial is laughable. It seems like elections, now more than ever, devolve into who can win so they can stack the courts and ensure their agenda for the next 20+ years.

  • Joe

    I am very bitter, we took a huge leap from liberty today,

  • geoih

    Perhaps now people will finally understand that the US Constitution has failed. It does not do what it was purported to do. It does not limit anything. It hasn’t limited the state for decades, but nobody has wanted to recognise it. Penalties are taxes, welfare is insurance, subsidies are investment, coercion is safety, violence is peace.

    As Keynesianism and monetarism are failed theories for economic prosperity, the US Constitution is a failure for protecting liberty. Until that is recognized and accepted, there will be no moving on to something that does.

  • David Pristash

    I agree with all of the above and I would go further and say that on June 28, 2012 the U.S. Constitution was official nullified and is no longer valid. For this act Justice Roberts should be impeached for he clearly “made” law which the judges are not supposed to do.

    I suspect that it is now to late to go back as the barn door is wide open and all the horses are long gone. And I also agree that problem basically started with the FDR’s new deal and what he did to the SCOTUS as referenced with the “switch in time to save nine” reference. The one mistake that the founders made was to create a judicial branch that wasn’t independent of the other two. The lack of constitutional definition here allowed FDR to make the threats that resulted in the court backing down and redefining the commerce clause that the progressive so love now. Roberts has now given them another tool to use with his novel use of a tax to force behavior.

    My personal belief is that the supreme court justices should be elected just like our representatives and there number fixed by the constitution. The only concession I would make to taking politics out of it, as much as is possible, is a longer term say 8 years. Since this would require a constitutional amendment so it will never happen.

    I will add that there is now only one way to reverse the damage and that is for the states to call a constitutional convention and put things back like they were before FDR. I have written on this a lot if anyone is interested write me at

  • Hans

    What died yesterday was: US Constitution; the separation of power; liberty; state rights; and common sense…

    We shall soon arrive at Serfdomville…

    The courts, (most being liberal) have simply become an extension of government rather than a barrier…

    Let this be a warning, that Conservatives should not rely on this branch of government for constitutional relieve, but rather that they will act in concert with the governing authorities to maintain the industry of government..

    Geoih, brilliantly writes “Penalties are taxes, welfare is insurance, subsidies are investment, coercion is safety, violence is peace.”

    It will take decades to undo the work of the Trotsky’s gang and the International movement…The crossroad is here.

    The Rubicon is to our backside…

    America is in mortal danger..

    Tears flow from my face. God All Mighty, deliver us from this fate..

  • Onlooker

    Roberts, the ultimate judicial activist!

    Land of liberty, indeed

  • Busmongrel

    I believe that Roberts cowed to the threats of Obama in his desire to get the court out of the political fray. Of course that is not possible because the court has always been part of the fray (at least since FDR) and there is no chance that the courts’ liberals will ever vote anyway except straight political belief. Are there any “Impeach Earl Warren” billboards left? we could easily modify them to the current situation.

  • Don Levit

    The reason that Social Security was passed, primarily came down to the government’s power to tax.
    It was very important that the taxes paid for Social Security went directly to the Treasury’s general fund, not to a person’s individual account.
    In that way, a person could not tie his account benefits to his specific contributions.
    Here, however, the “tax” is going directly to private companies, not the general fund of the Treasury.
    Don Levit

  • mak

    You folks talk of a failed constitution….but it is the people who have failed. The constitution isn’t rules scribed on granite somewhere. It’s a piece of paper, somewhat like our currency, that immoral men have trounced upon. And the immoral men were placed in position of power to do so by self serving immoral voters.


  • Hans

    I would like to add, that very earlier in this matter, several Conservative talk show hosts suggested that it was unlikely that the Court would, would rule against CONgress…

    In fact, I suspected a split decision rather than an either or…

    Believe it or not, very few federal acts
    are struck down by the High Court.

  • Franz

    The only reason we have the complex sloppiness that is ACA is because we are incapable of moving to a single payer health insurance system.

    We could adopt a single payer system that is modeled on that of Switzerland. Switzerland imposes a national tax of about 8%, and the government has legislated a basic coverage plan that people are mandated to purchase, over 80% of the insurance is purchased from private companies. The government provides a subsidy to citizens based on means. Less than 2% of the people are uninsured.

    I have no hope that we’re sensible enough to adopt such a system.

  • B. Johnson

    The problem that I have the USSC’s activist justice majority support for Obamacare is the following.  Regardless that Justice Roberts referenced the Gibbons v. Ogden case in the Obamacare opinion, Roberts seemingly ignored two statements in the Gibbons opinion which clearly indicate that Congress has no constitutional authority to address public healthcare imo.

    In fact, note that the first statement below clarifies, in a single sentence, that not only is public healthcare a state power issue, sovereign state powers to address public healthcare protected by the 10th Amendment, but also that Congress has no constitutional authority to address intrastate commerce issues; FDR’s activist justices got the Commerce Clause wrong in Wickard v. Filburn.

    “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress (emphases added).”  –Gibbons v. Ogden, 1824.

    “Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” –Chief Justice Marshall, Gibbons v. Ogden, 1824.

    In other words, Congress cannot make laws to lay taxes or establish penalties in the name of intrastate public healthcare any more than it can make laws regulating 1st Amendment protected religious expression and freedom of press.

    Sadly, until the states decide to delegate to Congress via constitutional amendment the spetific power to tax and spend in the name of public healthcare, the federal government’s unconstitutional power grab concerning Obamacare is stalling the states from establishing their own healthcare programs, evidenced by Massachusetts’ RomneyCare.  Article V of the Constitution is the best kept secret of the unconstitutionally big federal government imo.