JOHN EASTMAN’S COMMENTARY
Hard to know where to begin. As I said in my preliminary assessment
yesterday, the opinion by Chief Justice Roberts upholding the Affordable
Care Act (aka Obamacare) as a valid exercise of Congress’s taxing power
is a sell-out of constitutional principle of the first magnitude. (And
yes, for those that caught that typo in the original post, I do know the
difference between principal and principle–but it appears that the
Chief, in his role as “principal” of the judicial system, may have
forgotten his primary role is to uphold constitutional “principle”!).
It is also fundamentally wrong on constitutional law; the doctrine of
separation of powers; the meaning of a direct tax; and the idea of
limited government and enumerated powers.
It also appears that the Chief may have switched his vote after the
original conference and circulation of opinions. Rather than repeat all
the evidence for that claim that others have noted, I’ll just point you
to the more insightful of the commentaries on this point. Short version:
the joint dissenting opinion by Justices Scalia, Kennedy, Thomas and
Alito refers to Justice Ginsburg’s concurring opinion as a “dissent,” is
written as though it were the majority opinion, and says that if the
individual mandate were really a tax, they’d have to address the close
constitutional question of whether it was a direct tax–something they
don’t address even though, as the case was ultimately decided, the issue
was squarely presented.
See in particular Professor Paul Campos’ commentary  on this at
Salon, Ed Whelan’s commentary  over at National Review, and Lawrence
Solum’s commentary  at Legal Theory Blog.
If that is indeed what happened, and the Chief’s motive was to prevent
the Court from being “politicized” and therefore having its legitimacy
undermined (in the eyes of elite opinion, that is), he has done just the
opposite, both for the Court and his own here-to-for stellar reputation.
Indeed, if that is what happened, the Chief should resign; he would not
be fit to continue in office. As the great Chief Justice, John Marshall,
recognized more than two centuries ago in _Marbury v. Madison_, it is
“the very essence of judicial duty,” the reason a “judge swear[s an
oath] to discharge his duties agreeably to the constitution,” that the
judge must find “that a law repugnant to the constitution is void.” Then
again, in _McCulloch v. Maryland_, he added: “should Congress, under the
pretext of executing its powers, pass laws for the accomplishment of
objects not entrusted to the government, it would become the painful
duty of this tribunal . . . to say that such an act was not the law of
We have a judiciary independent of the political process precisely so
that can withstand such political attacks and uphold the Constitution.
(And oddly, it should be even easier to do so when the political opinion
of the majority of the American people is so strongly opposed to the
But let us for the time being give the Chief the benefit of the doubt.
What, then, of his constitutional arguments.
The law is unconstitutional as an exercise of Congress’s power to
regulate commerce among the states, he tells us (and on this point he is
joined by Justices Scalia, Kennedy, Thomas and Alito), because Congress
cannot force people into commerce in order to gain authority to
These were the grounds on which Congress passed this bill, deliberately
choosing not to raise taxes as a way to fund the massive expansion in
health care entitlements. The Chief’s Commerce Clause holding should
therefore have been the end of the matter.
Instead, the Chief manipulated the law to treat it as a tax, and then
held that the taxing power is broad enough to uphold this law.
There are several problems with that. First, the President and leaders
in Congress argued vociferously that the individual mandate was not a
tax. Second, Congress did not impose a tax; It imposed a penalty for
failure to comply with a regulatory mandate. Third, if it is a tax, the
Anti-Injunction Act deprives the Court to even here the case. Fourth,
the so-called “tax” did not originate in the House of Representatives,
as Article I, Section 7 of the Constitution requires. It originated in
the Senate. (Yes, I know. Technically the Senate stripped down a House
bill that was languishing there, and then used that bill number as the
vehicle for the Obamacare legislation. To say that the bill therefore
“originated” in the House is a fraud). Fifth, the power to tax is to
provide for the “general welfare,” not effectuate massive transfers of
wealth from one group of citizens to another. And sixth, if it were a
“tax,” it would be a direct tax, but one that is not apportioned
according to population, as required by Article I, Section 9, clause 4
of the Constitution.
Why does this matter? Aren’t these all a bunch of constitutional
niceties that really don’t mean much? Actually, no, if the idea of
limited government envisioned by our nation’s founders is to continue to
have any force.
Even assuming Congress has the power to accomplish such broad and
otherwise unconstitutional regulatory purposes by way of the taxing
authority — a dubious proposition — the constitutional process for
raising taxes is critically important. In insures that our lawmakers are
accountable to the people for their actions (heck, the unaccountability
of the King and Parliament for imposing taxes on the colonists was the
principal reason we had a revolution!). The requirement that tax
measures originate in the House was designed because the House is most
directly accountability to the people. At the time of the founding,
members of the Senate were not even elected directly by the people; that
came about only after the 17th Amendment was adopted in 1913. Even
today, every single member of the House has to face the voters every two
years (rather than every six, as in the Senate), a pretty serious
political check on raising taxes.
And the prohibition on un-apportioned direct taxes was designed to
prevent the use of the taxing power to redistribute wealth. If Congress
can impose a direct tax on some while exempting others, there would be a
serious risk of majority tyranny — that is, the prospect that 51% of
the population could simply tax the other 49%. That can’t happen with a
direct tax that can only be imposed if apportioned based on population.
(Note: This is also the problem with a steeply progressive income tax,
which allows for the same kind of majority tyranny mischief, but that’s
a discussion for another day). But a direct tax with exemptions? Look
How does Chief Justice Roberts address this problem? Well, he ducks it.
In a great bit of circular reasoning, he contends that the tax is not a
direct tax because it doesn’t apply to everyone. But that says nothing
about whether it is a direct tax or not; it merely admits that if this
is a direct tax, it is unconstitutional. So why is it a direct tax, in
my view? Well, for starters, because it is not any of the other kinds of
taxes authorized by the Constitution. It is not an excise (such as a tax
on liquor or cigarettes); it is not an impost or duty (such as tariffs
on imported goods); it is not an income tax, because it is not triggered
by your income (although the size of the penalty can be effected by the
amount of your income). It is a tax imposed for _not _doing something.
That is the very definition of a direct tax. A good analysis of this
point was published by my friend, Rob Natelson , over at Independence
Institute. His analysis is spot on. Maybe if the Chief had had the
benefit of briefing on this subject, he might not have made such a
sophomoric error. But methinks he knew exactly how disingenuous this
argument was, and he made it anyway.
What of the second part of the opinion, holding (by a vote of 7-2) that
the threatened loss of a State’s entire Medicaid funding if it declined
to accept the massive expansion in Medicaid mandated by the Obamacare
law was unconstitutional. Many conservative commentators over the past
24 hours, desperate to find a silver lining somewhere in the decision,
have focused on this. True, this is the first time that the Court has
ever held a federal spending grant to states to be so large as to be
unconstitutionally coercive. The Chief called this, quite correctly, “a
gun to the head” of the States, “economic dragooning that leaves the
States with no real option but to acquiesce in the Medicaid expansion.”
But that aspect of the Chief’s holding is immediately rendered largely
meaningless. If a State refuses to expand its Medicaid program, as
Congress desired, it cannot lose existing Medicaid funding. But its
citizens will still be taxed to pay for the Medicaid expansion
everywhere else. Few, if any, of the States will be able to reject entry
into the new program as a result. The choice will be: Pay for it, and
get some money back in return to cover some of the costs of expansion;
or Pay for it, and send all your money to other states to pay for the
costs of their expansion. That’s every bit as much a “gun to the head”
(albeit a six-shooter rather than a bazooka), yet the Chief does not
even discuss that coercive aspect of the Medicaid expansion, much less
find it to be unconstitutional.
Justices Scalia, Kennedy, Thomas, and Alito authored a joint dissent.
That itself is rare; normally dissents are authored by a single justice
and then joined by others. As noted above, the dissent reads as though
it was written as the majority opinion. We will learn whether that is
true or not in the fullness of time, but likely not until one of the
current justices retires, passes on, leaves their papers to a library
archives, and then we get to the day those papers are unsealed and made
available for public inspection. Then, we will see the initial votes of
the justices that were cast on the last Friday in March, two days after
the conclusion of oral argument in this case.
The dissent is a powerful defense of our Constitution’s system of
checks and balances, of federalism, and of the notion that our federal
government is one of limited, enumerated powers, not one with unlimited
power to compel action by its citizens as it sees fit. My one point of
disagreement is that the joint dissent concedes too quickly that
Obamacare would be valid if Congress had actually chosen to enact it as
a tax. In my view, the Tax and Spend power also has limits. The
signature accomplishment of the Rehnquist Court was to restore the
foundational idea that the Commerce power had limits, but it has been
clear for some that that accomplishment is meaningless if Congress can
simply shift to the Tax and Spend power to accomplish the same
This, then, is the greatest disappointment of yesterday’s ruling. When
given the opportunity to restore limits on the Tax and Spend Power,
comparable to the limits his predecessor was able to restore on the
Commerce Power, Chief Justice John Roberts appears to have blinked in
the face of political pressure. He apparently found the exercise of the
“painful duty” to tell Congress it had exceeded its authority too
painful to actually exercise. Chief Justice Rehnquist had the
constitutional fortitude to do his duty. A Chief Justice Mike Luttig
would undoubtedly have exercised that same constitutional fortitude had
he been appointed to the position instead. Those who pushed hard for his
nomination, greatly concerned that John Roberts had not been tested in
the fire of a landmark decision, have been vindicated. Small
consolation, though, given the damage that has been done to the
constitutional principle of limited government.
Is there a silver lining? Yes. But it is not simply that this issue now
becomes a rallying cry for those who would seek, following the next
election, to repeal Obamacare. No; it must be more than that. It must be
a repudiation so strong that the Court’s decision itself is repudiated.
In 1798, Congress passed the Alien & Sedition Acts, making it a crime to
criticize the government. There was a huge outcry against the Acts, but
the lower courts upheld them as constitutional. Thomas Jefferson waged
his campaign for President in the Election of 1800 largely on
repudiating those Acts. He was successful, but the Acts were not just
repealed (or more accurately, left to expire). They were repudiated.
Jefferson pardoned every one of the conscientious objectors who had been
convicted under the Acts, and the judgment of history has been that the
Court decisions holding the Acts constitutional were profoundly wrong.
That is the exercise of true power by a truly sovereign people. That is
the metal of which free men and women must be made if they are to remain
free. That is now our charge, and our moment to take our place in the
pantheon of American patriots, defenders of freedom, is now. Will we
prove ourselves worthy of the task?
John C. Eastman
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