What difference does it make if you have to wear leg irons or handcuffs made of iron, rather than steel? None.
What difference does it make if you are forced to buy health insurance due to a monetary penalty, rather than due to its being regulated as an item of commerce? None.
The Supreme Court decision was predictable, since going along with Congress is the norm. Torturing language was predictable, since that is the norm. Torturing the Constitution was predictable, since that is the norm.
The expression of contradictions in this decision’s syllabus is striking. Here’s one example. It says:
“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”
It immediately goes on to argue that such an expansion of power involves an undue element of compulsion and is not in accord either with limited powers of government or enumerated powers of government. Well and good, I’d say. Here is the language:
“Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to ‘regulate Commerce.”’
Congress cannot compel commerce under the commerce clause, the decision says. BUT, and it’s a very big BUT, instead Congress can compel commerce via its power to tax, the decision says.
Although this use of a penalty (renamed a tax by the Court) surely undermines “the principle that the Federal Government is a government of limited and enumerated powers”, which the Court seemed to want to uphold by not allowing compulsion under the commerce clause, the Court nevertheless went out of its way to invent this use and support it as legal under the Constitution.
The “new and potentially vast domain to congressional authority” that the Court suggested it was concerned about is, in fact, of no real concern to it.
I suppose we should be thankful that the Court in black and white has disallowed expanding the commerce clause to include compelling people to do what they otherwise might choose not to do — for the time being. However, that’s small potatoes compared to the Court’s affirmation that Congress can pass a law compelling you to engage in an activity and make you do it by penalizing you if you don’t do it, and that will be called a tax. I don’t even want to start listing the possible federal applications of that approach.
These kinds of laws are already present. If I do not mow my lawn when it gets over a certain height, for example, the town will mow it and charge me an exorbitant fee for doing so. More to the point, if manufacturers do not meet certain federal product requirements, they face fines and penalties. But, gee, isn’t that power exercised under the commerce clause??
The Constitution was not an advance in 1789 over the Articles of Confederation. It was designed to create a strong central government. I do not see how anyone can look at the matter of the Constitution rationally and unemotionally without concluding that it lacks legitimate authority. The more that compulsion expands in the ordinary and everyday affairs of living, the worse that life becomes and the more evident does it become to greater and greater numbers of the compelled that this government and its Constitution are hopeless and should be abandoned.9:15 am on June 29, 2012 Email Michael S. Rozeff