I was wholly unsurprised that Ginsberg, Breyer, Sotomayer, and Kagan upheld the health care law. The former two are the intellectual descendants of William Brennan, the third has less legal acumen than a Walter Brennan character, and the fourth has less integrity than the person who appointed her.
I am disappointed in Roberts, however. (I shouldn't be, of course; just as pinhead Obama appointed pinheads Sotomayer and Kagan, it's hard to expect that pinhead Dubya would have been able to avoid at least one pinhead to the Court.)
I haven't read the opinions yet, but the "it's a tax provision and therefore okay" rationale is about as lame as it gets. Mr. Chief Justice, the individual mandate isn't just a tax provision. You're either a moron or a conservative statist swine, I don't know which.
US v. Darby Lumber and
Wickard v. Filburn were bad enough. But those cases merely gutted the Commerce Clause. Thanks to your decision to enter the Pinhead Of The Year contest,
National Federation of Independent Business v. Sebelius says the power to tax and can be more powerful than any individual freedom, not only because the Congress and the Treasury agents happen to be five-hundred pound bullies with bigger guns than anyone else, but because the Constitution legitimates their bullying.
It's bad enough to use taxes to catch Al Capone. Al Capone was a thug who committed murder, robbery, and assorted other offenses against criminal law and morality. It's wholly a different thing to use the power to tax to make someone into a criminal for practicing basic freedoms we have for choosing our own basic needs like health care.
It's bad enough that you use the democratic process to "give" me health care options I didn't ask for. It's bad enough that you use taxes in general to pay for your provision of those options. That's the nature of majoritarian politics: if the majority says "spend", it isn't just the majority that gets to pay higher taxes. We all do, whether the spending is on health care, imposing democracy in Iraq, or first class air travel for all U.S. Senators. The power to tax is the power to confiscate in the name of the "general welfare".
But it's a whole different matter if you tell me that the only reason I am being taxed is because I have chosen not to take your new options.
This is not refusing a deduction for health care expenses -- you can do that, too, just as you can refuse to give a deduction for credit card interest. I'm not entitled to any particular deduction unless you grant it to me. However, if I want to protect my health in non-deductible ways, I ought to be able to do that.
This individual mandate thing is a different kind of rule. This is the lord of the manor telling one of his serfs she can't get married until she gives the lord her virginity. And mandating health insurance should be no more justifiable by majoritarian political processes than
droit de seigneur.
Mr. Chief Justice, what are you going to do when Congress passes and the President signs a bill saying every unwed mother of sufficient wealth will be taxed if she chooses not to abort in the first trimester? What are you going to do when Congress passes and the President signs a bill saying vegans are going to be taxed unless they buy so much USDA-certified beef and pork each year?
Benevolence is not a sufficient condition. I'll set aside the questions of whether government-provided health care is a good thing or not. That is not the problem with your "it's a tax" rationale. The problem with your rationale is that, just like the
Darcy Lumber and
Wickard courts, you have said that government power is more important than individual freedom to choose.
And you've said it not just with regard to our choice of recreational chemicals, hobbies, or other "luxury goods." You've said it with regard to a fundamental choice like health care. And if you didn't know this already, I'll let you in on a secret -- not just the Obamas and the Sotomayers and the Kagans, but lots of caring people like my friends Troy, Nick, Paul, and Kevin, consider health no less an important choice than food, shelter, clothing, association, and other fundamentals.
Hayek once spoke of us being on a particular road. I guess we've finally arrived at our destination. The
Darcy Lumber court was content with you and the 10th amendment to a "truism." Thanks to you and your colleagues, Mr. Chief Justice, the Constitution and the Declaration are worth less than the parchment they are printed on. The power to tax is the supreme law of the land.
We're just serfs, after all.
p.s. I thought Mr. Obama was going to run away with the Pinhead of the Year award yet again, but rest assured, Mr. Roberts, you're definitely in the lead now.
And do not be conformed to this world, but be transformed by the renewing of your mind, that you may prove what is that good and acceptable and perfect will of God.
Romans 12:2 (NKJV)