Congress not only can tax anything that moves, it can tax anything that doesn’t move
The Supreme Court opinion on ObamaCare runs to 193 pages. It is the size of a book, only more boring than any book anyone would ever want to read — and that is true despite the fact that Ruth Bader Ginsburg, the worst writer on the court, didn’t write it. I’ve been making a valiant effort to read it, but because I have other things to do with my life, I abandoned the darn thing about one-third of the way through. For now, bottom line is sufficient. Per the Supreme Court, ObamaCare imposes a tax on people who refuse to buy a product from a third-party. An example of that includes the Affordable Care Act which forces a penalty on those who do not take part in the newly-appointed health insurance marketplaces. That imposition is consistent with Congress’s power to impose taxes.
Ed Morrissey managed to encapsulate my immediate reaction to this, frankly, bizarre outcome:
It’s an interesting argument, but one that should have Americans worried. Basically, this is a tax that you have to pay to private companies. For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II]. The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing. It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.
Nevertheless, this is the law of the land. We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.
Taxes have traditionally been levied to enable the government to buy and build things. This is the first time in history, so far as I know, that a tax is being levied as a penalty against citizens who refuse to buy products from private vendors. Taxes normally tax activity. Sure, you pay taxes on a product when you buy a product but those are (a) state taxes, which are a different animal from federal taxes; and (b) taxes on a voluntary transaction. That’s the important thing. The transaction is voluntary. You can opt to sit it out and the government cannot reach you. Here, though, we are being told that the government can exact an onerous tax for inactivity.
The decision constitutes a radical redefinition of what constitutes a tax. It is exactly what opponents said it was: the biggest tax in history and one, moreover, that Americans cannot alter their behavior to avoid. I am therefore at a loss to figure out why Roberts signed on to this decision, let alone authored it. It is a staggering constriction on individual freedom. The closest analogy to this tax is the poll tax of 1380, a tax that saw one of the biggest revolts in medieval British history and one that almost toppled the monarchy. Poll taxes are flat taxes but, more importantly, they tax someone just for being.
Okay, that’s the bad news and it’s very bad in the long-term. There are some potential short-term benefits, although they’re only possible, not probable:
Because ObamaCare is a tax, it’s easy to repeal the tax aspects, which leaves the whole thing unfunded. Still, unfunded doesn’t mean vanished. All the bits and pieces, the obligations, impositions, panels, etc., live on, unless Congress can gather itself together and formally repeal the whole darn thing.
The other short-term benefit is that it might galvanize those Americans who hate ObamaCare, leading them to vote for Romney. That’s so not a sure thing, though. It’s a great victory for Obama, and might finally put the wind at his back. His signature legislation is a good thing, said the United States Supreme Court. For many Americans, that might fall into the category of “that’s all she wrote.” The fat lady has sung. The opera is over. It’s time to go back home and get on with your life. If Roberts had some strange idea that he’d help a Romney election, he was taking a mighty big gamble with the American people, their freedom, and their money. (Speaking of money, it’s no coincidence that the market plummeted once it received word that Congress not only can tax anything that moves, it can tax anything that doesn’t move.)
I am disheartened, but disheartened is not the same as defeated. It is now imperative that Republicans take back Congress in its entirety and win the White House. Jim Carville and others may proclaim the Tea Party dead, but I suspect they’ll see a Zombie Tea Party taking to the streets this summer.
The Anchoress and The Anchoress again
The Volokh Conspiracy (was Roberts somehow forced to uphold the law?)
Jay Cost (this may harm Obama more than he thinks in the long run)
Slate (Obama wins battle; Roberts wins war)