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McDaniel – Bad presidents come...

McDaniel – Bad presidents come and go, but bad precedents last a lifetime

By: Magnolia Tribune - July 4, 2012

The Supreme Court finally issued its opinion on the Affordable Care Act, finding the so-called individual mandate – a requirement that individuals purchase healthcare coverage from an insurance company or pay a penalty – to be constitutional.

Chief Justice John Roberts, a George W. Bush appointee, surprised many commentators when he joined four liberal justices in upholding the law, writing the majority opinion. But the most astonishing part of his decision was the use of congressional taxing authority as justification.

It was so unexpected that the government’s opening brief did not even address the question of whether the taxing authority could validate the mandate — perhaps because, until the Court’s ruling, no other federal court had accepted the implausible argument that the mandate was an exercise of the tax power.

Even liberal law professors and court-watchers who agreed with Robert’s conclusion did not agree with his arguments for it.

One problem with his approach is that the law consistently speaks in terms of a “requirement” to buy insurance, expressly stating that individuals “shall” purchase it. For those who ignore the mandate, the act then levies a “penalty.” It was no accident that Congress referred to the mandate as a “penalty” in eighteen separate places, rejecting – as clearly as the English language would allow – the idea of it being a tax. Furthermore, the location of the mandate and penalty are in Title I of the act, which is its operating core. They are not found in Title IX, where revenue provisions and taxes are listed. From language to location, it has the obvious characteristics of a regulatory penalty, not the hallmarks of a tax.

Perhaps more compelling, Congress had rejected an earlier version of the legislation that imposed a tax instead of a requirement with a penalty.

And yet, Justice Roberts embarked on a different course, apparently changing his mind at the last minute.

Purporting to resolve the issue with judicial restraint, he correctly acknowledged that the Court is not the sole judge of constitutionality. He likewise addressed the long-standing conservative principle that a judge should search for some way, if possible, to uphold the law before him. And then he offered conservatism another symbolic gesture by striking down the administration’s Commerce Clause claim of authority.

But his gestures, seemingly generous at the time, were merely designed to soften the coming blow.

By construing the mandate as a tax rather than a penalty, he departed from previous case law. The Court had never held that a penalty imposed for violation of the law was so trivial as to be in effect a tax. In searching for a way not to declare the mandate unconstitutional, he struggled to uphold it by ignoring the statute’s plain language.

Roberts appeared to appreciate the distinction between inactivity and activity when it came to his analysis of the Commerce Clause, but he then refused to comprehend the fundamental difference between taxing purchases and non-purchases when applying the taxing authority.

In so doing, he traded a virtually unlimited Commerce Clause power for a virtually unlimited taxing power – a shocking grant of authority that permits the federal government to compel or regulate personal behavior of almost any kind, whether based in action or inaction.

If Congress now wishes to penalize an individual for not following a direct order, it is empowered to simply impose a tax for noncompliance. And as the decision clarified, it does not even have to actually call it a tax.

There is a big difference between construing a law charitably and completely rewriting it to suit one’s purposes. The Constitution has never given the Court the power to rewrite laws by judicial fiat.

“The fundamental problem with the Court’s approach to this case is this: It saves a statute Congress did not write,” Justice Kennedy said in a statement from the bench. “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching.”

“The values that should have determined our course today are caution, minimalism, and the understanding that the federal government is one of limited powers,” Kennedy said. “But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.”

Roberts abandoned judicial restraint, just after praising it. He abdicated his role as a counter-majoritarian, just after exercising it.

The four dissenting justices rightfully complained that the majority was ignoring key structural protections found in the Constitution. “The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril,” the dissent wrote. “Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”

So before groups praise the ruling as a politically preferred one for the upcoming November elections, they should be warned: bad presidents come and go, but bad precedents last a lifetime.

Regardless of how one feels about healthcare reform, this is not a decision to be celebrated.

***** State Senator Chris McDaniel

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Magnolia Tribune

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