The Constitution Is What They Make It

Econophile's picture

“You are free to not eat broccoli, but if you don’t the government will impose a penalty on you. This penalty is really just a tax and since the government has the power to tax for all sorts of reasons, they can tax you if you don’t eat broccoli.”

This is the logic of Justice Roberts argument in the Obamacare case that was handed down today.

This should not surprise us because the Constitution is whatever the Justices wish it to be. Now they have handed the government another mandate to regulate our behavior. As we know they can and do regulate our behavior already. For example, if you smoke, they will tax your habit heavily. It is not a giant leap to force you to do something they want you to do by penalizing you for not doing it. According to today’s ruling, there is nothing in the Constitution preventing them from doing this.

The technical details of the ruling are interesting but very disappointing. Roberts’ justification of the Obamacare Act relied on the taxing power of the federal government as well as the general welfare clause.  Roberts shot down the government’s reliance on the Commerce Clause to mandate our behavior. He wrote, "The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular [interstate] transactions." Some clever commenters are saying, “Aha, that sneaky old Roberts. He always wanted to limit the wide powers of the Commerce Clause and this is how he did it.”

This limitation of the Commerce Clause may or may not be significant. Only future cases will answer this question. Based on the history of the Court, I have my doubts that this will impose any new restrictions on the government’s broad powers to regulate the economy.

The argument that a penalty was really a tax was, to say the least, a novel approach since the Administration thought it was a penalty and not a “tax” (the statute clearly points this out). Thus Justice Scalia’s famous query during argument that the government could force us to eat broccoli under the government’s theory of the Commerce Clause was cleverly turned aside by appearing to support the logic of Scalia’s broccoli argument yet upholding the law under the taxing authority.

The tax argument by Roberts is a good example of finding means to justify and end.

None of this is to say that the payment is not intended to affect individual conduct.  Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new.  Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.

Roberts' final words on the subject:

But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.  Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

Roberts' logic is tenuous: none of the examples of taxation he cites impose a “tax” on something someone doesn’t do. If I wish to buy expensive heavily taxed imported goods, that’s my choice. Under his logic they could “tax” me for not buying domestic goods because it serves the goal of fostering “the growth of domestic industry.” Roberts just makes it up to fit his intended outcome.

The Court’s dissenters make quick work of Justice Roberts' invention (turning a penalty into a tax). Justice Kennedy's dissent on behalf of Scalia, Thomas, and Alito:

Our cases establish a clear line between a tax and a penalty: “[A] tax is an enforced contribution to provide for the support of government; a penalty …  is an exaction imposed by statute as punishment for an unlawful act.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty.  But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

It’s not a tax, it’s a penalty.

This use of the taxing power was hailed by most legal scholars this morning as a proper conclusion by Roberts. Most whom I heard couldn’t understand why anyone would think it would not pass constitutional muster. Most legal scholars see nothing wrong with expanding federal power to implement social policies they believe are beneficial. This is the “living constitution” theory which has guided legal scholarship for many years, most specifically since FDR’s New Deal. But it is an old argument going back to the Federalists and the Jeffersonian Republicans.

What Justice Roberts has done may be another “switch in time to save nine.”* Perhaps it is a bit hyperbolic to so suggest this, but clearly he wanted to uphold Obamacare and take the Court out of the political and policy spotlight by this legal sleight of hand. Left-wing commentators are saying how crafty the Justice is to uphold this worthy social policy on the one hand, and yet hew to his supposedly conservative roots with his Commerce Clause arguments on the other. Most of these people could care less about the Constitution: to them the end justifies the means in every extension of federal power.

This is the problem with progressives who think the government has the right to regulate the economy in any way Congress deems it, and the Court is full of progressives. Justice Ginsberg in her opinion said, "The Chief Justice's crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress' efforts to regulate the national economy in the interest of those who labor to sustain it."

The Constitution has been gutted by the Supreme Court, and their butchers work continues. The Founders’ fear of a powerful central government has been betrayed by the Court. Our original constitutional limitations on federal power have been ground down by redefining the Constitution to suit government goals. A Court can now find constitutional power for almost anything the government wishes to do. 

With but a few exceptions we now closely resemble the Nanny states of Europe. And those countries have powerful central governments with few limitations on their power. Now with government-run health care, it would be difficult to distinguish the U.S. from, say, France. After 225 years, we are “them”. Thank you, Justice Roberts for doing your part.


*It is ironic that the justice who switched his vote in the famous “switch” case ( West Coast Hotel Co. v. Parrish) was also a Roberts, Owen Roberts.

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zombiebank's picture

I had no say in whether I was born or not - so shouldn't my parents be responsible for this "tax" since I was brought into the world by them?

Whoa Dammit's picture

Look at the expression in Roberts eyes. Its not like that of a normal sane person. His eyes also dart around all over the place like coyotes eyes do. There's something badly wrong with him. 

windcatcher's picture

In reply to Jumbi: The Mafia was the originators of the “insurance” racket and insurance should be nationalized for the general good health of the nation.

Simple and honest, take the racket out of insurance and everyone’s premium drops and benefits increase. Eliminate the criminal’s juice and health care mathematically becomes very affordable for everyone.

It is the feeding of the parasite that makes health care expensive and of course, kills it’s host, not cure the host.

Kill the parasite not the host! Cut off their juice!

ATG's picture

This just in:

Roberts on drugs and could be impeached as unfit to serve:

Meantime, just took windfall profits on SPY Jul 133 Calls 

and averaging in on QQQ Jul 64 puts:

Happy Financial Independence Day TD and all ZH...

HungrySeagull's picture

Impeached huh?


Oh shit.

Congrats on your profits.

ebworthen's picture

Lawyers are nothing more than professional equivocators.

Neo1's picture

You are required to pay tribute to the federal reserve for the privilege of using their private currency: a federal reserve note, SS and the Income Tax are just not enough anymore to pay the interest on the national us corporation debt so now we have a forced health care tax added on, are the lights starting to go on people?
Republic vs CORP:
Make your money Tax free
Search: the communist takeover of america—the 45 declared goals
Search: The united states isn’t a country—it’s a corporation by lisa guliani
Short version
Long version

Hey Assholes's picture

The Constitution, as written, "is all sail and no anchor" to the meddling hands of whores and vipers.

Violence is the truly only way to protect one's liberty I fear.

Hey Assholes's picture

I have used this avitar for 1 year, 33 weeks sir.

If I had a custard pie I would cover your face with it - this means war!!


Don Levit's picture

A tax goes into the government coffers, not to private companies.

Don Levit

ussa's picture

I would like to see Alito and Scalia square their past logic that supported an expansive view of the commerce clause and what makes a market that can be regulated.  They are no different than any other court member in an expansive view of federal powers.

Justices who supported Citizens United revealed their fascist sympathies. 

We should wake up and realize that the constitution was killed over 100 years ago by the creation of the Fed and corporate personhood to name a few examples.

The inconsistency of SCOTUS over the last decade shows more of the institutional rot evident in the US.


ussa's picture

I would like to see Alito and Scalia square their past logic that supported an expansive view of the commerce clause and what makes a market that can be regulated.  They are no different than any other court member in an expansive view of federal powers.

Justices who supported Citizens United revealed their fascist sympathies. 

We should wake up and realize that the constitution was killed over 100 years ago by the creation of the Fed and corporate personhood to name a few examples.

The inconsistency of SCOTUS over the last decade shows more of the institutional rot evident in the US.


Jumbie's picture


 “You are free to not eat broccoli, but if you want to or think you might like to and can't afford the high produce prices caused by government subsidies and political handouts, too bad. Seniors, indigents, military, politicos and government employees and the like get all the veggies they need whenever they like, but if you find that you need broccoli's vitamin K tomorrow you'll have to grow it yourself or do without."

Repeal Medicare, Medicaid, Romneycare, Bushcare and all the rest and I'll believe you're really interested in stopping the milking of the median productive workers of the US. Big Pharma alone spends $22k/year/doctor in direct advertising, more than that on congress. And they're the minority of the medicine/insurance industry out to suck as much of the real taxpayers' income as possible through any means possible. Not doing so would be "leaving money on the table" and expose management to shareholder ire. It all has to stop; the debate ITT is just about the political wind today. And I consult for the medical industry - its all about financial leeches' ROI and not a rat's ass about people's health. As one said in a meeting, "there are warehouses full of good ideas, how am I going to make money on this?"

windcatcher's picture

In reply to Jumbi: The Mafia was the originators of the “insurance” racket and insurance should be nationalized for the general good health of the nation.

Simple and honest, take the racket out of insurance and everyone’s premium drops and benefits increase. Eliminate the criminal’s juice and health care mathematically becomes very affordable for everyone.

It is the feeding of the parasite that makes health care expensive and of course, kills it’s host, not cure the host.

Kill the parasite not the host! Cut off their juice!

Animal Cracker's picture

Coming Soon:

We're proud to have an all-volunteer military.  However, if you choose not to volunteer, you will be subjected to a tax of $100k.  Nobody rides for free, folks.

monad's picture

If you want it done right you just have to do it yourself.

windcatcher's picture

The Robert’s Supreme Court has no credibility. They are all Traitors to our Democracy and Constitution and have set themselves up as the Fathers to a new corporate/government Fascist Nation.

Look how stupid Robert’s is, like Alberto Gonzales, he can’t carry on an intelligent logical discussion let alone make a critical decision.

Bring the Traitors to Justice!

JimBowie1958's picture

Roberts is exactly right on this.

Your taxes go up almost every year, and almost every year Congress passes deductions that penalize you if you dont take them because you will pay all or most of the tax increase for that year.

What do you expect Roberts to do? To rule that the Congress cant tax? To rule that Congress cant enact subsidies?

What Roberts DID do by ruling individual mandates unconstitutional was to limit the penalties associated with noncompliance to fines and thus Congress cannot jail you, take your kids, suspend your drivers license or anything else other than fine you because the Constitution allows them to do that that one thing: take your money.

In other words, Federal power really did not increase at all, only the appearance did as they had to publicly admit that they can raise your taxes almost any way that they want.

But it is not because of the Obamacare law, but because we have let Congress grow too big and too powerful long before now.

The other part of Roberts decision that struck down witholding Medicaidfor states that opt out is HUGE in comparison to the individual mandate. They just ripped from the federal governments hands the biggest stick in their posession. From now on Congress cannot make automatic witholding part of a federal law as those funds are already existing funds. That auto-penalty was like the witholding tax technique where you dont feel like your paying taxes emotionally because you never see the money leave your hands and go to the government.

They will have to pass a law from here on out that specifically targets a state and removes its funding and that is a very high profile pro-active thing to do that puts the onus on them. People in that state will hate the party responsible and these politicians know it. So they will never actually do it.

This is a HUGE disarming of the federal power structure. There is still more to that structure, no doubt, but they have definately lost their biggest weapon to compel states that they had in their arsenal.

Walt D.'s picture

All animals are equal.

But some are more equal than others.


Uchtdorf's picture

Hail to the Chief, Broccoli Hussein Obama!

dannynewmexico's picture

This article sounds like my wife, when things like this happen she always says

"they just make the rules as they go along"


I begining to believe she is right!

q99x2's picture

You get what you pay for. Fraud and Bribery are taxes too.

nah's picture

at least the government can save the kids


they never had a chance bitchez

Joe Davola's picture

As dubious as this ruling is, I still think the worst recent abomination from the Supremes is Kelo.




RallyRoundTheFamily's picture

+1 More evidence of who they really work for.

proLiberty's picture

The Roberts opinion is the Wickard of our generation. 

You will recall that Wickard v. Filburn, 317 U.S. 111 (1942) "vividly re-imagined" the Commerce Clause so that it covered a farmer growing a crop for his private use on his own land.  In this case the fact that he was growing grain to feed to his own livestock and because he was not going to put that grain on the market, he was somehow possibly going to have an effect on interestate commerce and that gave the federal government the nexus for regulating the crop.  

Wickard plagues us today.  Most recently in Gonzales v. Raich (2005), where a the Court ruled that a person, growing marijuana on her own property with her own soil somehow was engaged in interestate commerce. 

In Raich, the court said, "Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."

Now we have an expansion of this treasonous logic, for if government can wrap anything in an activity that can be taxed, then it too is legitimate, no matter how extreme.

I would point out that taxes must only be levied for legitimate government functions, and those come from the enumerated powers.   In this ruling, the Court stated that ObamaCare could not be justified under the ever-elastic Commerce Clause.  In doing so, they admitted it was not found in the enumerated powers.  But since it was suddenly a tax, the tax could be levied and the law could stand.  

So, in my opinion, this ruling is treasonous because it devises and end run around the Ninth and Tenth Amendments.    Every Justice who approves of that reasoning must be impeached.  (but of course, nothing will happen)



Walt D.'s picture

Interesting, since  the  Gonzales v. Raich (2005) ruling would no longer require the Commerce Clause - they could just rule that since all marijuana growers are subject to taxation, (whether the growing is legal or not) that the Federal Government has the right to regulate it.  In fact the new ruling encompasses all economic activity that is subject to taxation.

Citxmech's picture

Another worrisome thought is that firearm regulation is already set-up with a tax structure (ie $5 and $200 BATFE stamps for AOWs, suppressors and Class III, etc.).  One wonders if this could be a back-door into eliminating all kinds of "grandfather" exceptions (e.g., turn-in your _____ or pay a tax).  This kind of shit might not even implicate the rules restricting governmental takings.


Joe Davola's picture

Herein lies the problem.  The Krugman's and progressives that are cheering this ruling and the expansion of power it entails don't think far enough ahead to envision the precedent this ruling sets being used contrary to their wishes.

JimBowie1958's picture

They are being their usual stupid ass selves and not looking at the devil in the detils.

That is fine. I rather enjoy the idea that they just got punked and dont even realize it yet.

Citxmech's picture

Thanks for bringing this up.  Wickard was an absolute abortion.  Easily one of the worst holdings from these clowns in a catagory that has a long line of serious competition.

What I find interesting about this expansion is that previously, the tax code would give you 'breaks' for encouraged behavior - but now, you can be positively penalized for engaging in discouraged behavior.  A subtle and semantic point, but one that leaves open the possibility for a new level of financial coersion.  

MrBoompi's picture

"Now they have handed the government another mandate to regulate our behavior."

Bullshit.  Republicans have refused to do anything about the problms with healthcare, other than trying to do away with medicare and medicaid, and allowing healthcare and insurance cartels to make obscene amounts of money and ruin the lives of millions of Americans who are forced into bankruptcy due to medical bills.  Is it a tax, is it subject to the commerce clause?  Who gives a shit?  I have health insurance, and I'm sick of paying higher premiums and taxes for people who can afford it but don't.

Can we use more reform?  Sure, but don't count on eitherr party stepping up to the plate now.  I wish we could regulate the behavor of Republicans.  This would be a step in the right direction.

NeedtoSecede's picture

You are a fool and an idiot.  Both Rs and Ds are to blame for their poor work in Washington but have any of the "private" options for fixing health care even been attempted.  Fuck No.  Statist socialist brain-dead dumb fucks just want more government, more government and still more government.  We can't afford the corrupt government we have now, how the fuck are we going to afford more?  Not a single attempt to increase competition (let insurers cross state lines, allow consumers to really know the costs) and really bring costs down have even been attempted.  All attempts to really allow some freedom-oriented principles to work in health care/insurance have been squashed and fear-mongered by the power-hungry statist.  More government we cannot afford is NOT the solution.  It is not working real good over in Europe, why the fuck are do you think it will work here?  Government will not solve any of the "problems" you mention in your post.  Ya, someone may be bankrupt because the system is fucked up, but I would rather be bankrupt than dead.  Bankruptcy is a temporary state of affairs, dead was pretty damn permanent the last time I checked.  Dumbass fucking Zombies everywhere.  "More government, more government more government!"  Zombie dumbass.

Secession Anyone?

F. Bastiat's picture

On Sept 11 2001 the US government had $5.8 trillion in debt and islamists controlled Afghanistan. 

Today, almost 11 years later, the US government has $15.8 trillion in debt, the islamists have fought the US military to a draw in Iraq and Afghanistan and have gone on to conquer almost all of North Africa.

In other words, the central government is failing miserably.

Carbine's picture

This is the absurd attitude - there are problems with healthcare so who gives a shit about individual freedom, just give me my benefits no matter what - that is absolutely sinking this country.  So many people are so easily bought off!

gaoptimize's picture

This ruling, unless ObamaCare is overturned, brings the latest immaginable date of the fiscal economic collapse in about 4 months.  I suspect it will be adding ~$500B to the annual deficit by 2017.

hivekiller's picture

Well BO has trashed the bill of rights and the Supremes have trashed the constitution. I'd say the social contract between them and us is dead. Since almost a majority of citizens are dependent on the govt., this revolution will have to be different since they've shown no hesitation in killing citizens.

F. Bastiat's picture

Two small but tangible steps can be taken immediately:

- Get rid of cable service, eliminate TV to cut off their primary propaganda outlet

- Trade from currency for gold and silver

It all adds up; it's time to act.

Josey Montana's picture

Agreed.  Since the plain language of the Constitution is the only reason we agree to play this game at all, there is no longer a moral imperative to abide its restrictions ourselves.

Here's what we need:

1.  Our own local and, in time, regional "posses" to protect and defend ourselves against gangs, including "law enFORCEment occifers".  These might also have the effect of improving the attitude of our elected representatives.

2.  "Public Servant Transparency":  every minute of every day of every person suckling on the government teat gets 100% video surveillance, a la the Inner Party in 1984 except no off buttons.  High priorities for real time monitoring would be anyone

  • police powers
  • investigative powers
  • budget authority
  • tax authority
  • policy authority
  • spend authority

And of course this extends to contractors from the lowliest grunt at Xe or Blackwater of WTF all the way to the Bernank.


I know, I know it's just day dreaming.

Josey Montana's picture

 So now what do we do?  It is clear as can be no one will ride to our rescue.  The entire official government is corrupt and tyrannical.  Duh.

The US Army is ordered to send women to do its fighting.  Not a peep from the Brass.

The US Navy has been emasculated since ordered to dump naval infantry and now it's all YMCA.  Not a peep from the Brass.

The US Air Force, under its own initiative, outright persecutes Christians while drone jockeys blow "targets" from the Face of the Earth by remote control.  Ghoulish.  Soulless.  Frightening.  Not a peep from the Brass.

The USMC, the Leathernecks, the Devil Dogs, the "president's 911" forced to take it up the poop shoot.  Not a peep from the Brass.

The NSA is tasked to intercept, record, analyze and act on all electronic communication by US citizens. Not a peep from the Brass.

The FBI in a giant "me too!" tries the same, on a budget.  Not a peep from the Brass.

Local cops are intoxicated with playing ninja and joined the FSA with tactikewl army surplus shit including drones and tanks.  Not a peep from the Brass.

Not a single Bankster has been imprisoned.  Any of them actually prosecuted?


It is truly us against them.

What is to be done?

WTFx10's picture

What do you expect from a Rothschild Colony?

PulpCutter's picture

Econophile, you're missing the minor point that Congress voted for ACA.  If you don't like what happened, vote to change it.  If you don't carry the day (don't have a majority), get over it. 

De minimus's picture

You are asserting that the fight was fair. It was not. These people control 95% of the news and entertainment that the people see and they have only been presented the "wonders of socialism" 24/7/365. They even control the schools to the extent that principle lessons and concepts aren't taught, history isn't taught but everything harmful is, daily and without answer or any controls ensuring equity, even a little bit. Economics? Please! There is only one god and his name is Marx, and that is what they teach.

Oh and as for your vote, well they are importing people who will vote for them, and depend upon them, and of course this means that they will be spending somebody's funds to do it. Of course without their permission.

One thing I've noticed is that once something is made law, repeal almost never happens, no matter what they tell you on the boobtube. The American people were betrayed, absolutely betrayed by this "justice" and everyone else in Washington DC but the media holds ultimate responsibility because they could have told the truth and chose instead not to. Educated people don't do these things without a reason or reasons and they can see these things as well as we. Therefore there are other motivations but betrayal is the result. Everyone knew what they were doing when they did it, so there are no excuses because they did it deliberately and in a thoughtful and planned manner, indeliberate contravention of the constitution and bill of rights of the citizens of the United States of America.


goodrich4bk's picture

Like many others here, your arguments are not supported by facts.

For example, your statement that repeal "almost never happens."  See, Prohibition, Glass-Steegal, Jim Crow laws and thousands of laws that are amended and appealed every year. 

Those who voted for ACA are thieves?  What have they stolen?  Before ACA I could get free medical care at the County clinic and pay nothing at all, particularly if I had no assets and little income.  After ACA, I will now have to buy insurance, which is a mechanism for forcing me to pay for the medical care I am likely to demand and receive.  That's a funny kind of theft where the thieve takes my money and gives me something valuable in return, don't you think?  And what was I doing before ACA when I walked into the County clinic with no intention of paying?  Wasn't I stealing the time and resources of the county hospital from everybody else who was paying, either directly or with their insurance premiums?

From the rhetoric I am seeing here, it look prettly clear to me who is in the ZH audience.  Not freedom fighters but soakers.

CaptainObvious's picture

You're missing a major point.  Congress couldn't read ACA before they passed it.  "But we have to pass the bill so that you can find out what is in it."  ~Nancy Pelosi

Sean7k's picture

Congress has a history of voting for bills that violate the rights enshrined in the Constitution, it is the Court's responsibility to strike these bills down. The court is the last protection from democracy that endangers minority rights. Why are you so ignorant of your Constitution?

goodrich4bk's picture

You are absolutely correct.  But the Constitution also states the the SCOTUS decides what is constitutional.  We're all free to disagree with the SCOTUS and to vote for Presidents and Senators who will appoint judges who agree with our particular views.  But in the meantime, ACA is now the law and like Rick Santelli I will work to see it improved through democratic means.

I voted for Paul and will do so again in November.  But I am also open to seeing if the ACA can work to solve some of the absolutely ridiculous problems with the delivery of healthcare services in our country.  Congress probably did a poor job, but let's wait and see.  I have Republican family in Mass. who railed against Romneycare and now think it is working.  I suggest some of the more strident ZH readers do the same thing.

Sean7k's picture

The Constitution does NOT state that the SCOTUS decides what is Constitutional. Marbury v Madison set that "precedent". Dred Scott was the law as well, there are lists of terrible decisions handed down for political reasons that have nothing to do with defending the Constitution. Read, "The Dirty Dozen" by Levy and Mellor. 

If you enjoy State taxation and tyranny, fine. Just don't expect everyone else to bend over so willingly. 

PulpCutter's picture

Now you can go back to worrying about whether ATF is responsible for a few of the millions of firearms the Mexican drug gangs have, after Reagan covertly sold planeloads of weapons to the mullahs of Iran.

You brainwashed partisan hack.