Enjoy Your Broccoli

Chief Justice Roberts upheld ObamaCare's individual mandate with verbal wizardry.  According to Roberts, the requirement to buy health insurance isn't really a requirement to buy health insurance.  It's a choice.  And the penalty for failing to comply isn't a penalty.  It's a tax.

Defending the Court's ruling, Roberts argued, "It is not our job to protect the people from the consequences of their political choices."  But the fact that ObamaCare was passed by a Congress and signed by a president elected by the public is completely irrelevant.  The justices have a duty to strike down laws that violate the Constitution.  And Roberts abandoned this duty.

In dissent, Justices Scalia, Kennedy, Thomas, and Alito demonstrated the fallacy of Roberts' opinion, writing, "In this case, there is simply no way ... to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty."

From a legal perspective, the key question is whether the penalty is being imposed for a violation of the law.  If not, the penalty can properly be called a tax.

However, the dissenting justices provided example after example, proving that the type of penalty imposed by ObamaCare isn't a tax.  In summarizing the precedent being set by the Court, the dissenters noted, "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 place liberty at peril," with such rulings, the dissent concluded.  Indeed.

Following the decision, a number of conservatives focused on the positive: the individual mandate can't be upheld under the Commerce Clause.  However, even if ObamaCare is repealed by a future Congress, or temporarily offset by a future president with an executive order that paves the way for the federal government to issue waivers to all fifty states, as Mitt Romney has promised, the damage has been done.  Simply put, federal power under the Taxing Clause has been expanded to a dangerous extent.

The precedent has been set.  Now, the federal government can regulate activity, and inactivity, that previously was, and still is, beyond its power under the Commerce Clause.  For example, the federal government can impose mandates to buy government-approved products or services, such as particular types or brands of health foods, or environmentally-friendly clothing, vehicles, houses, or energy, so long as the mandates are structured as taxes.

Because, as Roberts wrote, "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."

Where exactly does liberty fit in that choice, Mr. Roberts?

Justice Scalia was harshly criticized for saying that, under ObamaCare, the federal government could make people buy broccoli.  Clearly, he was making a point.  In legal terms, you can't be forced to buy broccoli.  What difference does that make, though, when you can be penalized for not buying it?

And it certainly isn't going to be just broccoli.

Chief Justice Roberts upheld ObamaCare's individual mandate with verbal wizardry.  According to Roberts, the requirement to buy health insurance isn't really a requirement to buy health insurance.  It's a choice.  And the penalty for failing to comply isn't a penalty.  It's a tax.

Defending the Court's ruling, Roberts argued, "It is not our job to protect the people from the consequences of their political choices."  But the fact that ObamaCare was passed by a Congress and signed by a president elected by the public is completely irrelevant.  The justices have a duty to strike down laws that violate the Constitution.  And Roberts abandoned this duty.

In dissent, Justices Scalia, Kennedy, Thomas, and Alito demonstrated the fallacy of Roberts' opinion, writing, "In this case, there is simply no way ... to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty."

From a legal perspective, the key question is whether the penalty is being imposed for a violation of the law.  If not, the penalty can properly be called a tax.

However, the dissenting justices provided example after example, proving that the type of penalty imposed by ObamaCare isn't a tax.  In summarizing the precedent being set by the Court, the dissenters noted, "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 place liberty at peril," with such rulings, the dissent concluded.  Indeed.

Following the decision, a number of conservatives focused on the positive: the individual mandate can't be upheld under the Commerce Clause.  However, even if ObamaCare is repealed by a future Congress, or temporarily offset by a future president with an executive order that paves the way for the federal government to issue waivers to all fifty states, as Mitt Romney has promised, the damage has been done.  Simply put, federal power under the Taxing Clause has been expanded to a dangerous extent.

The precedent has been set.  Now, the federal government can regulate activity, and inactivity, that previously was, and still is, beyond its power under the Commerce Clause.  For example, the federal government can impose mandates to buy government-approved products or services, such as particular types or brands of health foods, or environmentally-friendly clothing, vehicles, houses, or energy, so long as the mandates are structured as taxes.

Because, as Roberts wrote, "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."

Where exactly does liberty fit in that choice, Mr. Roberts?

Justice Scalia was harshly criticized for saying that, under ObamaCare, the federal government could make people buy broccoli.  Clearly, he was making a point.  In legal terms, you can't be forced to buy broccoli.  What difference does that make, though, when you can be penalized for not buying it?

And it certainly isn't going to be just broccoli.

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