SCOTUSCare Follies: Et tu, Justice Thomas?

Leftists are celebrating the Supreme Court’s latest ruling, in California v Texas, to uphold the constitutionality of Obamacare.  And why wouldn’t they?  Sure, Obama’s flagship legislation may be little more than a leaking and rotting hull in the D.C. harbor nowadays, but progressives are clinging to it nonetheless.  And in spite of 18 red states’ most recent broadsides to sink her once and for all, this latest ruling ensures that she remains afloat for a little while longer.  The 7-2 decision was pretty lopsided, too, with a concurring opinion that was written by none other than arguably the leftists’ most despised justice, Clarence Thomas. 

In their concurring and dissenting opinions regarding the latest challenge against the constitutionality of Obamacare, California v. Texas, Supreme Court Justices Clarence Thomas and Samuel Alito find themselves on separate sides of the political divide. 

Why?  Well, the answer to that question may be more complex than most Americans might find in the headlines, cursory examinations, or fake news reports. 

First, let’s revisit some history. 

Do you remember why Obamacare’s constitutionality was originally considered questionable?  It was the individual mandate, upon which the fiscal efficacy of the law relied.  Congress no more has the power to make the purchasing of individual health insurance compulsory than it has the power to make the purchasing of broccoli compulsory, as the late Antonin Scalia cogently argued.  

However, in 2012’s National Federation of Independent Business v. Sebelius, the Court stood on a precedent set in 1937 when a similar question was argued before the Court.  Forcing all Americans to purchase a stake in a fixed annuity (then and now called Social Security) from the federal government, for their own individual retirement income security, was deemed by some to be the coerced purchase of retirement income insurance.  

The Court certainly agreed in the year that the Social Security Act became law.  The Railroad Retirement Act of 1934, for example, used the word “annuity” in its legislative language with zeal and was shot down for it in 1935 by the Court. 

But in 1937, the Court, under duress for having continually thwarted FDR’s unconstitutional New Deal legislation and enduring his threats to pack the Court with new justices of his choosing, opted to uphold the federal government’s power to coerce the purchase of insurance, while offering a peculiar defense for it. 

It wasn’t that the government was forcing Americans to buy insurance for their own individual welfare, the Court decided.  Obviously, the government can’t constitutionally do that.  No, the compulsory obligation to purchase individual insurance was a “tax” to promote the general welfare, which the government can do, and apparently, it can do so without any meaningful discernment of limitations by the judicial branch of government, according to the Court. 

Justice Benjamin Cardozo concurringly opined in Helvering v. Davis (1937) that:

The conception of spending power advocated by Hamilton… has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general… There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress…

It should be unthinkable to imagine that any Founder would have understood that the text of our Constitution, which is so fiercely and famously in favor of limited government, would imply “a penumbra” allowing Congress the authority to collect taxes and distribute the revenue for whatever reason it pleases, and without any meaningful discernment regarding the legislature’s “discretion” by the judicial body that exists explicitly for that purpose.  But the castrated Hughes Court in 1937, like the Roberts Court in 2012, upheld the law by arguing that the legislation’s individual mandate represented a tax for the promotion of the general welfare, not the federal coercion to purchase individual insurance that it clearly was.

The Court managed to conclude in 2012 that the Obamacare “penalty” is actually a tax, which is an odd formulation.  A state-imposed fine for not carrying car insurance, for example, shouldn’t be interchangeable with excise or income taxes, but that’s what the Court concluded, nonetheless. 

It is important to note that state penalties for a lack of car insurance are allowable at the state level, but not the federal level. (See: Tenth Amendment.)  But those jurisdictional boundaries got murkier in 2015’s King v. Burwell, the second big challenge to Obamacare in 2015.  The Court ruled, incoherently, that the “United States” could be ambiguously interchangeable with a “State” in constitutional interpretation.  This is a ludicrous proposition that has no basis to be found in the Constitution, only in similarly “penumbral” interpretations. 

Furthermore, consider that an unenforceable law isn’t a law -- it’s little more than a documented suggestion.  The same goes for taxes.  Taxes are ostensibly vital for the functioning of government.  Therefore, if you don’t pay your taxes, you will be penalized and coerced to pay.  If you fail to meet the IRS penalties and timetables, men with guns will come to your home and take you to jail.  If that were not the truth, then a government tax would not be a government tax.

Obamacare was stripped of its enforcement mechanism in 2017.  Without it, Obamacare’s mandate can no longer be understood to be a tax.  And without understanding the individual mandate as a tax, it no longer maintains the implied Court protections of stare decisis.

In his dissenting opinion for California v. Texas, Alito distills this recent history thusly:

No one can fail to be impressed by the lengths to which this Court has been willing to defend the ACA against all threats.  A penalty is a tax.  The United States is a State.  And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge.  So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history.  Fans of judicial inventiveness will applaud once again. [Emphasis added]

Right on cue, we have the headlines.  “Obamacare now appears safe,” writes Politico.  “Supreme Court upholds Obamacare health care law, rejecting GOP challenge,” writes ABC News. 

In a sane world of honest jurisprudence, Obamacare would be correctly understood as being mired in a relentless vortex of circular logic leading to eventual doom.  The federal government forcing an individual to buy health insurance is only considered constitutional because it can be deemed a tax to promote the general welfare. But if revenue collection cannot be enforced by law, it ceases to be a tax that can be counted upon to provide for the general welfare.  And if it’s not a tax that could be counted upon to provide for the general welfare, then Obamacare’s individual mandate is, as it has always been, an unconstitutional imposition upon the states and the American people.

Justice Thomas, interestingly, agrees with Alito on all of that.  He concedes that the individual mandate is the “cornerstone” of the law.  And few would argue. 

But he chose to provide Obamacare a stay of constitutional execution, anyway.  Thomas writes:

In this suit, the plaintiffs assert that the mandate is unconstitutional because it no longer imposes financial consequences and thus cannot be justified as a tax.  And given that the mandate is unconstitutional, other portions of the Act that harm the plaintiffs must fall with it… Those who would preserve the Act must reverse course and argue that the mandate has transformed from the cornerstone of the law into a standalone provision.

On all of this JUSTICE ALITO and I agree.  Where we part ways is on the relief to which the plaintiffs are entitled.

It’s abundantly clear that Alito and Thomas agree on the foundational unconstitutionality of Obamacare, but differ as to whether these particular states (plaintiffs) are suffering financial injury due to the law’s specific individual mandate, which “does not impose obligations or consequences.”  “Although they claim harms flowing from enforcement of certain parts of the Act,” Thomas writes, “they attack only the lawfulness of a different provision. None of these theories trace a clear connection between an injury and unlawful conduct.”

Justice Thomas concludes: “Although this Court has erred twice before in cases involving the Affordable Care Act, it does not err today.” 

This is a profoundly narrow and technical concurrence.  Thomas agrees that the individual mandate is the “cornerstone” of the law.  It was so inseverable from the other provisions and promises of Obamacare that if the mandate were declared unconstitutional in 2012, it was understood that the whole law would fall with it.  Now, when the provisions of the law are clearly causing financial injury to the states and the individual mandate can be proven unconstitutional by applying the Court’s own logic, he is suggesting that it is incumbent upon those who would “preserve the Act” that they treat the mandate as a standalone provision?

Justice Scalia predicted these interpretational follies in his dissenting opinion for King v. Burwell in 2015:

We should start calling this law SCOTUScare.  Perhaps [Obamacare] will attain the enduring status of the Social Security Act… perhaps not… The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited endlessly, to the confusion of honest jurisprudence.  And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

That’s marvelously prophetic.  Though one can only imagine that this clairvoyance couldn’t have included a prediction that Justice Thomas would be taking part in the intellectual gymnastics to keep Obamacare on life support with a supposed conservative majority in 2021.

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