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Monday, July 2, 2012

Roberts Invents The Constitution

Supreme Court Chief Justice John Roberts made some tragic legal errors in his tragic (if not comic) majority opinion in the ObamaCare case (NFIB v. Sebelius).  

Roberts' opinion is troubling for two reasons.  First, his opinion violates the principle of enumerated powers which limits the powers of the federal government to only those powers enumerated in the Constitution, with everything else being a power reserved to the States or to the people.  It is a limiting principle -- one which limits government power.  But Roberts gives the green light, and a roadmap with flashlight, to the Big Government crowd which wants no limits on the powers of the federal government.  

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, and by extension leads to the horrible conclusion that being subject to tax is part of the natural state of man, which by continued extension means that the Government has a natural right to tax you.  These are the principles and language of subjugation, not of freedom.  

The Chief Justice also implies that the Founding Fathers' failure or oversight in not declaring that the people have a particular right to avoid taxation through inactivity (meaning by extension that one may be taxed merely for existing or being) essentially reverses the Founding Fathers' original meaning of the concept of enumerated powers.  Roberts implies 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.  The dangers of this precedent may know no bounds. 

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.

The second problem is that the opinion is fundamentally contradictory in allowing the federal government to coerce individuals' compliance with the ObamaCare mandate-as-tax by imposing a penalty (tax) for noncompliance, while disallowing the federal government's coercion of the state governments by requiring (and funding) the states' expansion of Medicaid to all adults with incomes up to 133% of the federal poverty level and threatening to withdraw all Medicaid funding from states which do not comply.  

The meaning of this second contradiction is obvious. The federal government has the power to coerce, as long as the coercion is of American citizens.  Coercion of state governments by the federal government, however, is disallowed. 

Roberts' opinion has the unintended consequence of discriminating against the American people.  Perhaps never before have the American people been made to feel so fundamentally inferior and submissive to their government as they have been now with the ObamaCare decision.

Eric Dixon is a New York investigative and corporate lawyer who is also admitted in New Jersey.  Eric Dixon is also a co-host each Monday afternoon from 4-5pm of the Conservative Commandos Radio Show, heard on two AM stations in New Jersey and worldwide through the Internet.  

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