The majority of conservative articles analyzing Chief Justice Robert???s recent decision in National Federation of Independent Business v. Sebelius have concluded that upholding Obamacare???s constitutionality is the decision???s most troubling aspect. I disagree.
We can deal with Obamacare. Doing so will require an informed and motivated electorate, but we can do it. Should we elect Mitt Romney President (this is critical) and should Republican???s keep control of the House (which is likely), and gain control of the Senate (they have a good chance), Obamacare???s most troubling provisions, including the mandate, can be repealed. Unfortunately, as the Johnson, Carter, Clinton and Obama presidencies demonstrate, at some point in the future it is likely that big government liberal Democrats will again come into power. Should that occur, Chief Justice Roberts??? opinion leaves us with a federal government empowered to restrict our individual liberty and economic freedom beyond anything the Constitution or its framers ever contemplated.
The essential question before the Supreme Court was whether the federal government could require American citizens to purchase something, in this case health insurance. The Obama administration argued that it had the power to compel Americans to make such purchases and to either (1) impose a penalty under the Commerce Clause of the Constitution for failing to do so or (2) impose a tax for such a failure under its power to “lay and collect taxes.”
The court concluded that while the federal government???s power to regulate commerce failed to confer such authority, its power to tax did. So, Obamacare was either a penalty beyond the federal government???s power to regulate commerce and thus unconstitutional or a tax and constitutional. The court decided that it was the latter with Chief Justice Robert???s specifically stating that Obamacare???s federal individual mandate ???[m]ay reasonably be characterized as a tax.???
How Obamacare can be repealed?
President Obama would have preferred that the court hold Obamacare???s mandate constitutional as a penalty under the Commerce Clause as opposed to a tax because (1) President Obama promised not to raise taxes on the middle class which Obamacare clearly does and (2) the Senate can vote to repeal a tax through a process called reconciliation. Reconciliation applies to legislative changes to taxes, spending and debt and allows the Senate to avoid the 60 vote filibuster requirement. As such, if Obamacare is a tax, to get a Senate floor vote on repeal, Republicans would need control of the Senate (50 votes plus the Vice President???s tie breaking vote) rather than a filibuster-proof majority (60 votes) which Republicans are unlikely to get in the next election.
In fact, following Scott Brown???s (R-Mass.) 2010 election to the Senate and the Democrats??? loss of their filibuster-proof majority of 60 votes, the Democrats split Obamacare into two bills and enacted one of them through the reconciliation process to avoid a filibuster.
Despite his best efforts and liberal media support, President Obama cannot now have it both ways. Obamacare is either a tax and constitutional or a penalty and unconstitutional. It can???t be a tax for constitutional purposes and something else for all other purposes. The administration argued that it was a tax and the Supreme Court agreed. Bottom line: It???s a tax.
Moreover, if it was procedurally correct for the Senate to pass portions of Obamacare through reconciliation, it is clearly permissible to repeal those provisions through reconciliation. In other words, repeal really is now in the hands of the voters with an election merely four months away. Obamacare may stand or fall. It is up to the voters and, as is always the case in democratic elections, we will get what we deserve.
But a bigger problem remains
The bigger problem is the extent to which Justice Robert???s decision expands the federal government???s power to regulate individual decision making. While Justice Roberts??? opinion correctly limited the reach of the Constitution???s Commerce Clause, it so expanded Congress???s power to ???lay and collect taxes??? that it is difficult to conceive of anything beyond the federal???s government???s taxing power. The court ruled that the federal government can compel us to purchase things we may neither want nor need and which we may be unable to afford. The source and extent of that power is certainly something constitutional scholars can debate, but the source is far less important than the fact that this power exists.
As stated by Justices Scalia, Kennedy, Thomas and Alito in dissent: ???Whatever may be the conceptual limits upon . . . the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.???
Nonetheless, the Chief Justice interpreted the taxing power as if it could be exercised without regard to the limits on governmental power in the rest of the Constitution. Everyone agrees that the Constitution was intended to apportion power among the different levels of government and to set real limits on the areas where the federal government could legislate. The taxing power was intended to allow the federal government to raise such revenue as needed to exercise the functions allotted to it by other parts of the Constitution. It was never intended as a back door through which Congress could enter into areas the Constitution reserved to the states or the people.
That is why the Chief Justice???s opinion is even worse than it looks. It injects a principle into constitutional adjudication that imperils not just the limits on Congressional power in Article One, but every limit in every part of the Constitition. Justice Roberts has empowered a bloated and increasingly oppressive federal government. He has placed power in the hands of those running our federal government to control our most basic decisions and limited our ability to make essential choices for ourselves.
Prior to this decision and under our Constitution, we had a federal government of limited and enumerated powers with all power not specifically delegated to the federal government reserved to the states and the people. After this decision, we have a federal government with ??? in theory anyway ??? virtually unlimited power provided that it artfully uses the taxing power to achieve ends that would otherwise be forbidden. This is inconsistent with the framers intent and an unprecedented blow to those who believe in individual liberty.
In the end, Obamacare may stand or fall. But the larger infringement on individual freedom will be far more difficult to overcome.
Andrew Puzder is chief executive officer of CKE Restaurants Inc., which operates Carl???s Jr. and Hardee???s restaurants and employs about 21,000 people. He is also a former trial and appellate lawyer, a member of the Supreme Court Bar. He is also serving as a Mitt Romney surrogate during the presidential campaign.