Roberts, writing for a narrow 5-4 majority (with Justices Kennedy, Alito, Scalia and Thomas dissenting), argues that the individual mandate is constitutionally permissible because it is the result of the federal government's taxation power and right to encourage certain behavior such as the purchase of health insurance. However, the ObamaCare tax carries a powerful disincentive for not buying: a tax penalty on purchasers with incomes over a set level.
The ObamaCare tax sets a new and alarming precedent. All other taxes are levied on people because of their activity, what they do. These taxes share the uniform characteristic of being avoidable should one simply avoid participating in the activity that triggers the tax (e.g., buying cigarettes). This tax will be levied on people because of their inaction. The tax thus seeks to have a compulsory effect, to induce upon pain of penalty the purchase of health insurance, even at a high or unaffordable price or any price, for that matter. And as for its avoidability, the only ways to avoid the ObamaCare tax are to have household income below a certain threshold (to be determined), to leave the country, or to die.
In essence, this is an oxygen tax -- if you breathe, you are subject to the tax.
Roberts' opinion is troubling because it turns the principle of enumerated powers on its head and gets it backwards. Roberts writes at page 41 of the opinion that "[t]he Constitution does not guarantee that people may avoid taxation through inactivity." The implied meaning is that there is no Constitutional right to avoid taxation, period; further, it implies that taxation is a natural state of mankind to which we are subject. Finally, it implies that the Founding Fathers' failure or oversight in not declaring an enumerated right to the people to avoid taxation through inactivity (meaning by extension that one may be taxed merely for existing or being) means that the State -- the federal government -- has the power to impose such a tax. This is a backwards analysis.
The concept of enumerated powers is one which limits the power of the federal government, such that it has only those powers enumerated in the Constitution, and everything else is a power reserved to the States or to the people. It is a limiting principle and limits government power. Roberts follows the reverse or opposite of this principle, implying that the lack of an enumerated power or right of the people to avoid a tax through inactivity necessarily subjects them to an expansive, virtually limitless power of the federal government. Roberts thus uses the limiting concept to limit the power and rights of the people -- the very opposite approach to what the Founding Fathers intended.
So much for Chief Justice Roberts being an originalist and strict constitutionalist.
Eric Dixon is an investigative attorney and Yale Law School graduate who is admitted to practice in both New York and New Jersey.