When the Supreme Court ruling on Obamacare came down I was stunned by what Chief Justice Roberts had done and by his reasoning that the individual mandate was constitutional as long as the fine was considered a tax. I was led to believe that the man was an originalist, a man who would interpret the Constitution as written and understood by the Framers. He may be but he did not demonstrate it in this case.
I will readily admit that I’m not a lawyer and certainly not a constitutional scholar but I am well educated, well read, and capable of interpreting the plain words of the Constitution and of the Framers. Those plain words led me to the conclusion that Roberts’ ruling that the individual mandate was constitutional because it is a tax is just plain wrong and not supported by history.
Allow me to use the words of the Constitution and the Framers to make my case:
Article I, Section 8, Clause 1 of the Constitution says:
The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence (sic) and General Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
In 1792 James Madison wrote,
If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.
In 1831 James Madison wrote –
With the respect to the words ‘general welfare’, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.
Madison wrote the above during the debates about the meaning of ‘General Welfare’ when some were trying to push a more expansive meaning of the term; much like modern Progressives. Madison was the author of the Constitution so I take him as the ultimate authority on the meaning of every word of it. Now, if he has limited ‘General Welfare’ to the enumerated powers i.e., “powers connected to them”, then clearly any tax revenue raised by the federal government can only be spent by Congress in executing its enumerated powers. The federal government does not have carte blanche authority to spend money on anything it can raise revenues for. If that were the case then I would refer you to the Madison quote above substituting ‘taxing powers’ for ‘general welfare’.
John Roberts can refer to the following quote from one of his most esteemed predecessors if he needs a refresher on the limited powers of the federal government,
“The federal government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it….is now universally admitted” – Chief Justice John Marshall, 1819
Or perhaps the words of Thomas Jefferson –
The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.
And if I needed authoritative help in making my case for why John Roberts was wrong, specifically regarding his taxing argument,…
Our tenet ever was…that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.” – Thomas Jefferson, 1817
I use all of the above to make the case that since Congress has no constitutional authority to have created the ACA, aka Obamacare, i.e. no such power is enumerated in Article I, Section 8 of the Constitution, Congress therefore cannot raise taxes to pay for it.
I believe John Roberts made a serious, purposeful error and used the history of Social Security to support his error. However, using the statements and excerpts above one can easily see why the Supreme Court of the New Deal era originally ruled Social Security unconstitutional and also see why it would have never passed were it not for FDR’s threat to pack the court.
I don’t know why Roberts’ changed his opinion at the last minute to support Obamacare but neither the Constitution nor history supports his ruling.