The Constitution is a document of specific, enumerated, and therefore limited federal powers that has, unfortunately, been stretched over the years to accommodate an ever larger and more intrusive federal government. Chief Justice John Roberts recently struck another blow against limited government by creating a new, unrestrained power to use taxes to compel activity (even if the proponents of the tax insist vehemently that it is not a tax!).
President Obama no doubt rejoiced, not just because his health care law would stand, but because he has long seen the Constitution’s limits on federal power as a problem to be overcome.
As Obama himself explained in a 2001 radio interview when he was a senior lecturer at the University of Chicago Law School: “The Supreme Court never ventured into the issues of redistribution of wealth and more basic issues of political and economic justice in the society and to that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”
The Roberts Court has now contrived to do what Obama faulted the Warren Court for not doing. By creating a new and unlimited power to lay punitive taxes on inactivity, Roberts has obliterated any meaningful constitutional constraint on federal power. This was, of course, expected of the Court’s four left-wing radicals, who likely share Obama’s contempt for the Constitution’s “essential constraints.” Roberts was supposed to know better.
Some observers have celebrated Roberts for preserving the legacy of the Rehnquist Court in reining in the federal commerce power, which was my initial reaction,too. But what good is that limit if the prohibited regulation can be disguised as (or judicially transformed into!) a tax? To use Justice Scalia’s infamous broccoli example, the federal government cannot order you to eat it, but they can tax you if they catch you going too many days broccoli-free.
Roberts, it seemed, couldn’t bring himself to do what the Constitution required when that risked subjecting himself and the Court to unrelenting character assassination – and worse. An “Occupy” effort was reportedly ready to set up camp on the front lawn of his home if he sided with Kennedy and the three originalists on the Court. Roberts concocted his tax rationale to dump the whole controversy back into the political realm.
There’s something tragic about a decision that says federal powers are practically unlimited, checked only by public opinion and the political process. There should be a large and healthy sphere of American life that is insulated and protected from political negotiation. But we cannot dwell on that tragedy. We have no recourse left but to engage and win in the political process.
Barack Obama, a man long intent on breaking free from the Constitution’s essential constraints, has succeeded in doing so. With those constraints broken Obama is certain to pursue the “redistribution of wealth and more basic issues of political and economic justice.” That means massive tax hikes, intrusive regulations, and pervasive government control of our lives.
This is an inflection point in American history. Forward to unchecked federal control or back to meaningful constitutional protections for individual freedom. Are you doing everything you can to help America make the right choice?
Phil Kerpen is president of American Commitment and author of “Democracy Denied.”