Roberts’ Present to the Government
Here’s my take on the far-reaching effects of Roberts decision (strictly my own observations. I am not a Constitutional lawyer like our exalted leader).
John Roberts didn’t murder the Constitution, as I’ve heard a number of folks aver. He left it there, but made it irrelevant if the government chooses to treat it so, by adding new abilities for the government to enforce compliance with its will that the Constitution essentially does not directly address.
He is correct in making the determination that the government cannot penalize us for failing to buy something we don’t want. That was the effect of confirming that the government could not use the Commerce Clause to justify their legislation. It will have far-reaching effects, because the government has heretofore justified nearly everything they have wanted to do by way of expansion and ‘over-reach’ by using the Commerce Clause.
When Congress passed Obamacare, they did so by carefully asserting that failure to comply would result in a penalty…. NOT a tax. They did so because it likely would not have passed if presented as a tax.
However, we should never forget that PENALTIES have to meet certain legal requirements (something I’ve yet to hear even conservative talking heads mention). Before the government can penalize (which is by definition an imposition by the government as punishment for conviction of a crime….. i.e. a failure to meet a requirement of law such as the requirement to buy health care insurance), it must indict, allow due process, and convict (Sixth Amendment to the Constitution: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.)
Since there is no ‘due process’ called-for nor allowed in Obamacare before the “tax/penalty” is imposed, the fees charged for failure to comply CANNOT BE A PENALTY, or trials for non-compliance would be required, as they are in any other criminal prosecution. At the very least, every penalized person would have the right to demand a public hearing and due process under the Constitution before the penalty could be imposed.
If the monies collected therefore cannot under the Constitution be a penalty, then they must be a tax. What Roberts effectively did was to define ANY monies collected by the IRS as a tax (since Obamacare makes the IRS the collector for the monies levied), regardless of the reasons for the collection. It is a tax not on a transaction amount (monies acquired or monies divested), but on NO TRANSACTION.
Failure to comply with a requirement of law has ALWAYS heretofore been a criminal act. When you don’t pay your income taxes, it was a criminal act. You had the right to contest actions taken against you in Tax court. If you didn’t signal before changing lanes when in traffic, it was a criminal act. With this pronouncement, Roberts has now provided the government with a means of making any failure to comply with law it chooses a tax instead of a a crime merely by making the IRS the collector of what would have heretofore been a fine….. and by doing so, circumvents entirely the Sixth Amendment to the Constitution.
In essence, what he did establishes a precedent for the government to pass any law or administrative regulation (which Obama happily does without even involving Congress these days) and as long as he makes the IRS the collector of of monies for failure to comply, enforcement does not involve criminal charges requiring prosecution… for it is merely a tax, not criminal enforcement.
And since there is no substantive difference in whether criminal charges are brought for crimes resulting from failure to act, and crimes resulting from doing something prohibited (speeding is prohibited, failure to signal before turning is a failure to meet a requirement…. both are criminal infractions), there is no real reason the government cannot now effectively make compliance efforts for ANY heretofore criminal act merely a tax, and avoid all that messy corpus delecti, indictment, court process and conviction in a public arena using rules of evidence and subject to the other Bill-of Rights stuff (such as Fourth and Fifth Amendment protections).
Thus we get to the oft-cited contention that the government can now order us to eat arugula… or be taxed. Or, for that matter, buy a new car (if everyone did so, after all, it would stimulate the economy, so why not just order us to buy a new car (has to be a Chevy Volt, by the way) or be taxed. Pass a law that all heads-of-Households MUST buy a new Chevy Volt within the next year. Failure to comply with the new law will not be a crime, as long as any monies paid for non-compliance are paid to the IRS.
You can argue that the IRS component of Obamacare has limited teeth. They can coerce compliance by refusing to return withholdings, but the law doesn’t give them the authority to tap tills, place liens or attach wages. So, in theory, you could defeat them by merely not having sufficient withholdings to cover the cost of the non-compliance tax.
But that was BEFORE Judge Roberts declared the what the IRS collected for failure to buy insurance to be a tax. They couldn’t write tax law enforcement into Obamacare, because they were selling it as NOT being a tax in order to get it through Congress. So it’s not there YET. That’s YET.
In determining the monies to be paid for failure to comply with the law are a tax and not a penalty, Judge Roberts has added to government authority not by changing the Constitution, but by effectively allowing the government to bypass it at will. I doubt they yet fully understand the power he has given them, but they will come to. And they, no doubt, will find very crafty ways to use their new-found power in the future (call me cynical ) …. and ALWAYS to the detriment of your personal liberties and civil rights.
Watch the news closely (i.e., Fox News…. the MSM will likely NOT cover it) between now and 2014 when the penalizing starts to go fully into effect: I GUARANTEE YOU IF OBAMACARE IS NOT REPEALED, THE IRS WILL BE GIVEN THOSE TEETH!
The problem is that even if Obamacare is repealed, only that particular legislation will be gone. The precedent Judge Roberts has established in being able to use the IRS to bypass criminal prosecution for alleged failure to comply with a legal requirement will be there fro the government (whether a Democratic or Republican government) to be able to put to use against us until another future SCOTUS decision reverses it.