In the recent ruling by the Supreme Court of the United States on our healthcare system, Chief Justice John Roberts did something completely unexpected. He was the deciding vote and, as such, was the one that overruled the government’s main argument – the Affordable Care Act is Constitutional by way of the Commerce Clause – but ultimately allowed the law to stand as an exercise of the Federal government’s taxing power. Let’s look at what is actually said in the Commerce Clause and how the Congress has the “power to lay and collect taxes.”
The Commerce Clause, Article 1, Section 8, Clause 3:
&, Article 1, Section 8, Clause 1:
The Commerce Clause, if you really look at what it says, is easy to dismiss and I’m glad Chief Justice Roberts did so. The Commerce Clause allows the federal government to regulate commerce “with foreign Nations, among the several States and with Indian Tribes.” Missing in this clause is a specific term … “the people”. Because that is missing, the federal government does not have the power to force “the people” to buy a particular product or enter a particular market. Since, this part was ruled against, I won’t spend anymore time discussing it.
The part of the ruling that allows this law to stand is an interpretation of the taxing power. Article 1, Section 8, Clause 1 allows the Federal government to “lay and collect taxes” as part of it’s enumerated powers. However, this Act is not to pay a debt, nor does it provide a common defense, so this Act must be collecting a tax for the “general Welfare”. The “General Welfare Clause” has been used throughout our history as a nation to pretty much provide cover for the Federal government to do anything it wants. This ruling continues that bastardization of what the General Welfare Clause really means. Precedent for Chief Justice Roberts’ decision started back in the 1800’s, but we don’t need to go through all the history to see that this decision continues the court’s determination as ruled in Helvering v. Davis, which described the taxing power granted to Congress as nothing short of a plenary power – a power that is near absolute and not necessarily subject to judicial review. There are some caveats to that, but this is the general view of Congress’s taxing authority by the Supreme Court as held over the last 80+ years. Understanding where we came from allows us to see where we’re going and why.
As it stands, even though I disagree with Chief Justice Roberts in his ruling, I am gladdened to see the court halt the encroachment on our freedoms by way of the Commerce Clause. I am, nevertheless, saddened to see it replaced by the taxing authority and General Welfare Clause. Essentially the Supreme Court decision means that if there is already market activity, the Federal government can regulate it by way of the Commerce Clause. If there is, instead, market inactivity, the Federal government can coerce activity by way of it’s taxing powers. This decision allows the Federal government near absolute power. There is a silver lining to this, however. Since the Supreme Court has ruled that the Affordable Care Act is a tax, it can be repealed by Congress with a simple majority vote, not what has been termed a “super-majority”. I traditionally like to see the Congress represented by the opposition party to the President, but seeing as how the Democrats are responsible for the Affordable Care Act, having Democrat control in either house of the Congress or the White House is not acceptable this time around. The ultimate fate of the Affordable Care Act will become more clear after November 2012.