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The Supremes Get It Fundamentally Wrong

The Court has issued a ruling with terrible implications for the future.

by
Hans A. von Spakovsky

Bio

June 28, 2012 - 3:36 pm
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In a good example of that, the majority opinion says it would be perfectly fine if Congress enacted a law that made individual Americans pay a $50 tax to the IRS if they owned a house without energy efficient windows.  Under that view, there is really nothing Congress cannot do in extorting certain behavior from American taxpayers, as long as it uses the threat of tax penalties to achieve the desired outcome.

This places us on the same road to tyranny (but perhaps at a slower pace) that we would be on if the Court had upheld Obamacare to expand the authority of the Commerce Clause even further, unless our aversion to tax increases imposes some political checks on its use by Congress.  The Framers understood that there are at least some political checks on the use of the taxing power.

The Court did strike down, in a very narrow sense, part of the massive Medicaid expansion forced on the states by Obamacare.  The Court held that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. That violation can be remedied by preventing the secretary of Health and Human Services from withdrawing existing Medicaid funds if a state fails to comply with the new requirements.

Justices Antonin Scalia along with Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito wrote a very impressive dissent that Chief Justice Roberts should have also joined.  As the four justices said,  Obamacare “exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting States all Medicaid funding.

These parts of the Act are central to its design and operation, and  the Act’s other provisions would not have been enacted without them.  In our view it must follow that the entire statute is inoperative.”  With just one more vote, the entire bill would have been declared null and void as unconstitutional.

This case shows just how important a president’s ability to pick members of the Supreme Court is. Roberts has shown just how disappointing some justices can be to their supporters and those who want judges who will abide by the limits that the Constitution places on our government.

With the failure of the judicial process, the only thing left to do now is to get rid of Obamacare legislatively. Congress passed this monstrosity, and the only path to lifting it from the backs of the American taxpayer is through the legislative process.  That means that legislators should vote again to repeal all of Obamacare.

So we have come full circle. Congress is responsible for the mess that the Supreme Court has refused to clean up, and that leaves Congress with the responsibility to clean it up. Otherwise, they can be sure that voters will be watching.

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Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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