The ObamaCare mandate was enacted as a penalty flowing from Congress’s Commerce Clause power. It has been upheld as a tax flowing from Congress’s power to tax-and-spend under the General Welfare Clause. As the dissent sharply demonstrates, the contention that the mandate could have been enacted as a tax is frivolous. Meanwhile our country, trillions of dollars in debt and rapidly sinking further, desperately needs a debate about the limits of Congress’s power to tax and spend for the general welfare.
Madison — correctly in my view — thought the General Welfare Clause (which is in the preamble to article I, section 8 — it is not a separate, enumerated power) was simply an affirmation that Congress had the power to tax and spend to achieve the specific grants of power exactingly set forth in that section. Hamilton, by contrast, argued that the General Welfare Clause was an independent (i.e., not restricted to the enumerated powers), open-ended grant of authority to the national government to tax and spend on anything that would support someone’s idea of the overall betterment of society. Madison rightly contended that Hamilton’s interpretation would defeat the purpose of enumerating Congress’s powers — namely, to limit it to only these functions and no others. It would also usurp the rights and authority of the states and the people, in whom were retained all rights and authority not expressly assigned to the national government by the Constitution.
During the New Deal, under FDR’s court-packing threats, the Supreme Court adopted Hamilton’s view — enabling Congress to enact the New Deal, the Great Society, Social Security, Medicare, Medicaid, and innumerable other programs for which there is no enumerated power in the Constitution. These programs are unsustainable and leading us over the economic cliff, besides intruding on the domain of state power. Had ObamaCare been honestly presented as a tax, or had the Court acted properly by striking it down as an illegitimate use of the commerce power and telling Congress that if it wanted to pass the bill as a tax it would have to pass the bill as a tax, our dire financial straits might have forced this much needed debate about the limits of congressional welfare power.
We have now lost that opportunity through fraud: fraud in the legislative action, and fraud in the judicial review. Due process would not allow this to be done to a criminal, but the Supreme Court has decided that Americans will have to live with it.