Health care reform bill upheld--because it's a tax!

The Supreme Court of the United States upheld
almost everything that the health care reform bill does. The only thing
the Court disallowed was removing all Medicaid funds from States who
refuse to expand their Medicaid programs. This opinion severely weakens
the Constitution and grants Congress unlimited power to tax. But it also means that all who vociferously denied that the health care reform bill had a tax increase in it, were lying.

The Supreme Court released a 193-page opinion under the title National Federation of Independent Business et al. v. Sebelius et al. The Court had two questions before it:

1. May the Congress force people to buy something, or else pay a money penalty? (And what do you call that penalty? Is it a tax or a fine?)
2. May the Congress force a State to expand a massive charity program (Medicaid), and withdraw all the funds they now send to that State if it does not?

Besides that,the Court had to ask whether the health care reform bill could stand if any part of it could not
stand. When Congress passes a law, they usually put in a line to say
that if a court holds one part of the law unconstitutional, the rest of
the law can stand. Lawyers say that they make the parts of the law severable. Congress did not do that in the health care reform bill. In fact, they took out a severability line that they had earlier put in.

The Court;s answer: Yes, Congress can make you buy health insurance,
but not for the reason Congress first said. Chief Justice John Roberts
explained it (or tried to). According to him, the “Commerce Clause” does
not let Congress force anyone to buy something they wouldn’t otherwise
buy. But the Tax Clause lets Congress tax anyone, for any reason.

Roberts took note that the health care reform bill called its “Minimal Coverage Mandate” a penalty and not a tax.
Because Congress did that, the government could not argue that the
Anti-Injunction Act made the lawsuit premature. (The Anti-Injunction Act
says that a taxpayer can’t sue to stop a tax until he has first paid
it.) But Roberts said that whatever Congress chose to call it, it was a tax if that’s what it took to save the law. The Syllabus clearly says:

Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.

Roberts decided that it was. He also decided that he could in effect rewrite a statute.

In answering that constitutional question, this Court
follows a functional approach,“[d]isregarding the designation of the
exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287,

294. Pp. 33–35.

On point 2 above, Roberts said that Congress had no authority to withdraw all Medicaid funds from a State that did not expand its Medicaid program. The reason: Congress cannot make a State do anything.

Finally, the Court seemed to assume that the parts of any law were always severable, whether the law itself says so or not.

The United States Supreme Court, with several March for Life participants in the foreground. Photo: CNAV files

Obviously the opinion means that the health care reform bill stands,
except that the Medicaid penalty does not stand. But it means something
worse than that: Congress may tax anyone, for any reason, to force him or her to do anything it wants. Even if the government cannot fine a person, it can tax that person. Furthermore, the government can tax wherever it may not fine.

This is a blank check for the government. It destroys almost all the
protections that a person now enjoys. All the government has to do, to
fine a person (in any amount) for any reason or no reason, is to call
the penalty a tax instead of a fine. The government can also be as
selective as it wants in deciding whom to tax, and whom not to tax, and
why or why not. (Roberts also said that because the “minimum coverage
mandate” did not apply to everyone, whether they acted or no, it was not
a capitation tax and the government need not apportion it like one.)

Therefore, any American citizen or lawful resident might be subject to a bill of attainder, an ex post facto penalty, or any kind of “excessive fine.” The only things that the government may not do as arbitrarily are:

• To execute someone, or
• To confine someone.

Chief Justice Roberts just gave the government the perfect workaround: call it a tax!

So says the Court. But what say you? Is this good for the country? Bad? Indifferent?