The Supreme Court's "Declaratory Act"
by EDWARD CLINE
July 3, 2012
Chief Justice of the Supreme Court, John Roberts, wrote the majority opinion upholding the alleged constitutionality of the Affordable Care Act (ACA), otherwise known as Obamacare. Obamacare will compel, under penalty of a monetary payment, all Americans to purchase health insurance. This monetary penalty was never intended by the authors of the ACA to be a revenue-raising impost. It was never intended to be a tax, either, although the Internal Revenue Service was appointed the enforcer of the law and collector of the penalty. Further, proponents of Obamacare argued that Congress had the power to enforce compliance with the law under the Commerce clause of the Constitution, which bestows on Congress the power to "regulate interstate commerce."
Opponents of the law have argued that Congress does not have the power to force individuals to engage in such commerce. During initial arguments before the Court, the Court rebutted this argument to some extent, dismissing the Solicitor General's position that an absence from such commerce is no excuse for not complying with the mandates of Obamacare. The "individual mandate" - or the feature of force - became the bête noir of Obamacare.
Chief Justice Roberts, however, side-stepped the whole issue and, as some commentators have observed, "rewrote" the punitive feature of the individual mandate and called it a "tax," arguing that such a tax is not outside the bounds of Congressional power. In that single act, Chief Justice Roberts, in an act of evasion and moral cowardice, conferred upon Congress the power and authority to tax every human action and commodity.
Violating the Aristotelian law that a thing cannot be A and non-A at the same time, Roberts wrote that the punitive penalty can be treated as a tax. Worse, the Constitution can limit Congress's powers, and expand them at the same time, as well. He did not recognize the Commerce clause argument advocating compulsory engagement in the commerce of insurance. He recognized, however, Congress's power to enslave and destroy.
The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress's power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress's power to tax. (p. 58)
But many pages before Roberts' lop-sided logic, he begins with this reductio ad absurdum gem.
The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. (p. 3, Italics mine)
So, rather than undermine the principle behind the Commerce Clause (which does not grant Congress the power to "regulate" business in terms of controlling it, but rather to bring objective law to chaos), Roberts elects to undermine the principle of limited and enumerated powers that constrain Congress.
This opinion is unprecedented in the Court's annals, because it does and does not uphold Obamacare. In his opinion, Roberts wrote, with the pouting, moral fervor of a scold, "It is not our job to protect the people from the consequences of their political choices."
Charles Krauthammer wrote in his Washington Post column, "Why Roberts did it":
How to reconcile the two imperatives - one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds - interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.
Law upheld, Supreme Court's reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.
I do not think the advocates and supporters of Obamacare will much mind that Roberts, with the flick of his pen and a leap in logic, dubbed the penalty a tax. After all, the penalty and the tax will accomplish the same results.
Let us not say that Roberts's actions are, in a political context, unprecedented. There are historical precedents. We must go back to the pre-Revolutionary period to find them. The Proclamation of 1763, the Stamp Act of 1765, and the Declaratory Act of 1766.
The Proclamation of 1763, on occasion of Britain's victory in defeating the French for possession of North America, was issued under the name of George III. It forbad all British colonials from escaping the mercantilist, regulatory and taxing authority of the Crown by crossing into the transmontane, or the Western wilderness beyond the mountain range from the settled colonies on the Eastern seaboard, and establishing new settlements. That was the overture.
In 1765, to defray the costs of the French and Indian War, and to fund the costs of maintaining a standing army in the colonies as well as maritime courts and a civilian bureaucracy to enforce Crown law, Parliament passed the Stamp Act, which imposed a tax, payable in Crown silver only, on most court and legal documents, newspapers, playing cards, and even university degrees. The pseudo-Solons of the Crown had observed two things: That colonials were insatiable readers, and the most litigious subjects in the Empire.
The colonials revolted against the Stamp Tax. Without going into details, except for a paltry amount collected in Georgia, the Stamp tax was a famous failure, the Crown not collecting a penny of the tax, and seeing its Stamp Tax collectors hounded from their royally appointed sinecures. The turmoil caused Parliament to repeal the Stamp Act exactly one year later, in 1766, rather than allow it to stand and exacerbate hostility towards the mother country. The American colonials celebrated their victory.
Most did not pay attention to the companion legislation that accompanied repeal, The Declaratory Act, which was:
AN ACT for the better securing the dependency of his Majesty's dominions in America upon the crown and parliament of Great Britain.
WHEREAS several of the houses of representatives in his Majesty's colonies and plantations in America, have of late, against law, claimed to themselves, or to the general assemblies of the same, the sole and exclusive right of imposing duties and taxes upon his Majesty's subjects in the said colonies and plantations; and have, in pursuance of such claim, passed certain votes, resolutions, and orders, derogatory to the legislative authority of parliament, and inconsistent with the dependency of the said colonies and plantations upon the crown of Great Britain: ... be it declared ...,
That the said colonies and plantations in America have been, are, and of right ought to be. subordinate unto, and dependent upon the imperial crown and parliament of Great Britain; and that the King's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever....
Note the stress on dependency. Congress wishes Americans to become dependent on it for every conceivable human action and relationship, in "all cases whatsoever" - by edict and fiat. There is no difference between Parliament's intentions and Congress's.
I have noted in past columns that Mitt Romney, the de facto Republican candidate for President, is no antidote to either Obama, Obamacare, or statism. He is a statist. Chief Justice Roberts (likely under some threat from the White House) has sanctioned the humongous expansion of federal power, aside from upholding the ACA. Romney is no friend of freedom, either. He signed MassachusettsCare into law, after all, and that was a miniature template for Obamacare.
Either way, Americans have just been put on notice that they are wards of the state. Two things should alarm Americans: Roberts's apparent last minute switch from a majority that would have struck down Obamacare (obviously a sign of White House arm-twisting, or Capone-style persuasion), and the expansion of federal tax-and-punish powers. Remember, the "tax" that's not a "tax" feature of the ACA is not a revenue-raising one, but a punitive one.
That is the hallmark of "conservatives" - to seek a "middle ground" that seems apolitical and non-partisan. That is, to uphold no principles at all, except that of "me-too." After all, we would not want to challenge the altruist nature of Obamacare, would we? We're nice guys at heart, just like the collectivists. And if it turns out to be a pernicious law, well, you people asked for it. It's not for a Chief Justice to judge.
Well, no we didn't ask for it. It was passed over the raucous and highly visible and exacerbated hostility of the Americans on whom the burden would fall.
The Court has never consistently upheld the Constitution, not in its entire history. The role of the Chief Justice, however, is not to evade judgment of an outrageous, looting, confiscatory law and blame the electorate for voting for the creatures who passed it. He and his colleagues are supposed to say: "This is evil, this violates individual rights, this is villainous and tyrannical, and we're declaring it unconstitutional." We are not paying the Chief Justice to collect a sumptuous salary and enjoy perks we can't afford. (Remember, ALL federal employees are exempted from ALL features and stipulations of Obamacare, as well as ALL members of Congress.) We are paying him to pass judgment on legislation. Sure, he can blame some of the electorate for voting the creatures from the Black Lagoon into office, but that is not his job, to place blame (except perhaps in an aside or a footnote to an opinion) and pass the buck. That feature of Roberts's opinion is, I think, unprecedented in the Court's annals. How low can you get?
Republicans, as "conservatives," consciously wish to "conserve" the status quo, which can mean any state of affairs in any point in time, as long as it means the welfare state, entitlements, subsidies, tens of thousands of regulations, all kinds of taxes and tariffs, central banking, and so on. Perhaps the correct term should be "preserve." Now, that would make an appropriate designation of most Republicans: the Preservatives.
Seriously, however, the Conservatives cannot challenge the Left in any fundamental way, because they share the same morality, which is altruism. All they can say to the Democrats and Progressives, with the indignation of a priggish scold, "Not so fast!" The Right and the Left agree on the ends; the means and speed are open to bipartisan negotiation. That has been the history of Congress and the Executive Branch since the late 19th century.
Parliament meant what it said when it affirmed legislative and taxing authority over the American colonies. Beginning in 1764, Parliament passed over two dozen Acts to make the colonies dependent on Britain for its trade and sustenance. It made no finicky distinctions between taxes and penalties, between commerce and non-commerce.
President Obama, Nancy Pelosi, and the Democrats meant what they said when they asserted legislative authority over Americans' lives, health and fortunes. They rammed Obamacare through Congress, blithely indifferent to or ignorant of Congress's enumerated powers. Little could they know that Chief Justice John Roberts would affirm their tyranny with his own Declaratory Act.
And we all know what the original Declaratory Act led to.
Well, not all. Congress is oblivious. And so is Chief Justice John Roberts.
It can happen again.
Edward Cline is the author of the Sparrowhawk novels set in England and Virginia in the pre-Revolutionary period, of several detective and suspense novels, and three collections of his commentaries and columns, all available on Amazon Books. His essays, book reviews, and other articles have appeared in The Wall Street Journal, the Journal of Information Ethics and other publications. He is a frequent contributor to Rule of Reason, Family Security Matters, Capitalism Magazine and other Web publications.