At first blush, Chief Justice John Robert’s defection to the Dark Side on ObamaCare looks every bit the tragic treason of Anakin Skywalker: the end of health care as we know it, and perhaps the end of the Republic.
But as conservatives take a deep breath and consider, they may realize the Chief Justice just handed them, however unwittingly, an enormous opportunity.
By this I do not mean the obvious electoral opportunity. This will not be an election about whether Ann Romney “worked” or a teenage Obama ever experimented with pot. No, the full fire and brimstone of the seemingly dormant Tea Party movement will now resurface like a transcontinental chain of volcanoes, and given the enduring and growing majority of Americans against ObamaCare, one can safely assume that that passion will translate into the same sort of lopsided two-to-one Republican victory among independents it produced in 2010.
Roberts just handed Republicans the election. The momentum might even carry over to a sixty-plus seat Republican Senate in 2014. ObamaCare is doomed, no matter what the Supremes may say.
But that’s not the crucial point, the grand opportunity, the chance to, in effect, repeal the evils of the 20th century.
That lies in how Roberts made his decision.
Conservatives were rightly terrified that a pro-ObamaCare majority would come to its conclusion based on an expansion of a 1941 decision named "Wickard v. Filburn." Wickard is the most important New Deal-era case undergirding the Nanny State and the radical expansion of government power. In it, the Court wrung the maximum imaginable power out of a Constitution designed almost entirely to restrict such: it said, more or less, that if a person does anything at all, the feds have power to regulate that action.
This is a far cry from “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But it has been the Supreme Court’s take on that sentence for over 70 years.
Conservatives understood that the most likely way for the Supremes to uphold ObamaCare – which requires individuals to actively go into the marketplace and spend their money to buy something they do not want, and then regulates them for doing so – was to expand Wickard: in effect, to say there are no limits on federal power whatsoever. Some openly worried that this would constitute dictatorship, and to be sure, from the Founding Fathers’ perspective, it would be more power than George III ever imagined.
But this is not what Chief Justice Roberts did.
Roberts said that there was no need to expand federal power to uphold ObamaCare. Directly contradicting the position of the administration and its attorneys, Roberts said that the financial burden imposed by the law was simply a tax, and that there is no dispute as to whether the federal government has that power.
And therein, he re-opened a century old debate that constitutes conservatives’ great opportunity, their chance to drive a stake through the heart of socialism.
Because originally, the feds had no power to tax you directly at all. It took the 16th Amendment, in 1913, to grant them that. Before 1913, Washington divided the bill based on population, just like friends around a dinner table, and sent an invoice to each state capital. This left the taxing power – the power to determine how intrusive taxing authorities could be – with the government closest to you; it also made states the natural opponent of federal expansion, since they had to pay the bill. This bit of Founders’ brilliance helped keep Washington in check for 140 years.
Without the 16th Amendment, there is no federal power to directly tax a citizen. Without the 16th Amendment, therefore, there is no ObamaCare.
This may sound like pie in the sky. But in fact, there’s already a huge, well-organized, well-funded movement to repeal the 16th, backed by some of the most powerful people in America. It’s called "the Fair Tax Movement." The only problem with the Fair Taxers is that they don’t go far enough: they want to do away with the income tax, but they want to replace it with another direct federal tax, a national sales tax.
It’s time for all conservatives to come together and unite around a better solution. We don’t need a federal sales tax: we need the Founders’ system of apportionment among the states. It will shift the political dynamic in America overnight toward a radical devolution of power to the states; it will eliminate the IRS once and for all; but most of all, it will destroy the basis on which ObamaCare and a thousand other tyrannies are currently built.
John Roberts just pointed the way to a conservative revolution. Will we take it?
Rod D. Martin is a leading futurist, technology entrepreneur and conservative activist from Destin, Florida. He was part of PayPal.com’s pre-IPO startup team, serving as special counsel to founder and CEO Peter Thiel, and also served as policy director to former Governor Mike Huckabee. He is president of the National Federation of Republican Assemblies (NFRA), a member of the Council for National Policy, and serves on numerous nonprofit and for-profit boards.