Monthly Archives: July 2012

Independence Day

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On this day 236 years ago, a group of Americans got together and, pledging their Lives, their Fortunes and their sacred Honor to each other while relying on the protection of divine Providence, took our country free from tyranny and set us on a new, wholly experimental course.

These men openly acknowledged both our right and our duty to throw off any government that too badly violates its moral obligations to us sovereign citizens, that for too long abuses our liberties and our individual responsibilities.  At the same time, though, they acknowledged that routinely rebelling at every small offense was equally wrong: Governments long established should not be changed for light and transient causes.  Yet those light and transient offenses want correction along with those abuses and moral failures.

And so, while fighting (and some dying) for our newly born nation and during the immediately ensuing years of a troubled peace, these men, with others from the newly independent and united States joining them, in a second phase of our experiment invented a wholly new form of government.  They created a government that would recognize the essential sovereignty of the members of a voluntarily formed social compact over our compact’s government, and they gave that government a structure and a strictly limited set of authorities designed to maximize our control of government and our ability to maintain that control.

They also invented a wholly new mechanism for throwing off an abusive government and replacing it with one more suited to our needs and to our control: a set of elections that would let us turn all the rascals out of one house of our legislative body every two years, that would let us depose the whole of the other house of our legislative body in sequential one-third increments every two years, and that would let us fire the chief executive of this government every four years— any and all whom we found wanting during their time in office.  This invention was accompanied by another invention of these men: a judiciary that sat, neither above nor below our executive and legislative, but equal to and separate from them—a third powerful check that granted stability to the whole.

We are here today arguing amongst ourselves, usually with great passion, over the Patient Protection and Affordable Care Act, the Environmental Protection Agency, climate change, and a host of other things, too, both momentous and trivial.  And we could not be without the genius and the sacrifice of those men those 236 years ago.

As you sit around by your barbecue, or at the beach, or wherever you may be, hamburgers and hotdogs in hand, beer nearby, children screaming and yelling in their own happinesses, take a moment to think about that.

Justice Thomas’ Dissent

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Justice Clarence Thomas’ dissent from the Supreme Court’s just published ruling on the Patient Protection and Affordable Care Act, quoted below, is short, to the point, and worth studying.  His dissent also can be found at the end of the full ruling (together with the four Justices’ joint dissent), which itself can be read here.  Justice Thomas’ cites are omitted below.

JUSTICE THOMAS, dissenting.
I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause.  The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.  Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.”  I adhere to my view that “the very notion of a  ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.”  As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.”  The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects inter­state commerce is a case in point.

It was this “substantial effects” test that permitted the ruling in Jones & Laughlin and which was dramatically expanded in Wickard.  Until these odious rulings are reversed, the dangerous lack of limits still extant in the Commerce Clause, the majority opinion in this case notwithstanding, remain a clear and present danger to our individual liberties.

Obamacare, the IRS, Privacy, and Whose Money Is It, Anyway?

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Here is a partial list, courtesy of Elizabeth MacDonald of Fox Business, of the additional privacy invasions in which Obamacare requires the IRS to engage, in order to ensure that you, “private” citizen, are complying with the Progressive Government’s determination of what is appropriate for you.  Understand, you’ve lost the right to determine what level or type of health insurance coverage is appropriate—the Progressive Government will determine that for you.  You’ve also lost the right to determine what level of coverage is affordable according to your own—or your small (or large) business’ estimate—expense pattern and what you’ve decided you’re willing to pay—the Progressive Government will determine that for you.

According to the Taxpayer Advocate Office, we erstwhile private citizens must tell the government’s man, under Obamacare,

  • our insurance plan information, including who is covered under the plan and the dates of coverage;
  • costs of [our] family’s health insurance plans;
  • whether [any of us] had an offer of employer-sponsored health insurance;
  • cost of employer-sponsored insurance;
  • whether [any of us] received a premium tax credit;
  • whether [any of us] has an exemption from the individual responsibility requirement.

Moreover, the IRS under Obamacare is requiredauthorized to talk with folks about us with whom they never before had routine contact—all to ensure that we’re “paying our fair share.”  This list includes

  • new state-run insurance exchanges;
  • employers;
  • insurance companies;
  • government insurance programs.

Your W-2 no longer is enough; now the IRS will be quizzing your employer in great detail.  The fact that you do, or don’t, have health insurance coverage no longer is a private matter; the Progressive Government will be quizzing your insurer.

On top of this, if we must pay a penaltytax because we don’t have the Progressive Government’s definition of “adequate” coverage, that tax is designed to be the maximum collectable, not the minimum.  The tax is either a fixed dollar amount, or a percentage of our income above the filing threshold, whichever is greater.  Even common criminals, on conviction, don’t automatically get the maximum sentence in every case.  But then, your money really isn’t yours, anyway—it’s the property of the Progressive Government; it’s just ensuring it gets every bit of its property.  And the criteria for determining the size of our tax?  They include more destruction of our privacy:

  • the IRS determines our “household income,” the sum of the incomes of everyone living under our roof
  • the IRS will demand to know the insurance coverage of each person living under our roof.

If anyone is lacking proper insurance, you get the tax.

It’s just as bad for the small businesses that we “private” citizens run, now for the benefit of government rather than for our own purposes.  Here’s an example of the penaltytax “your” small business must pay.

Businesses with more than 50 employees are required under Obamacare to provide “adequate” health insurance coverage for all of their employees.

The tax is $2,000 per employee, but the business must first knock out from the math the first 30 workers—part-timers don’t count.

Example: If you have 51 full-time employees and 15 part-time employees throughout the year, and one full-time employee is receiving a tax credit to help them buy health insurance [because you’re not providing “adequate,” “affordable” insurance for that employee], your business will have to pay:

51 (the number of full time employees) – 30 (the first 30 employees are excluded)

21 x $2,000 = $42,000

Notice that: one employee is getting short-changed (according to the Progressive Government), so we pay the penalty on a multiplicity of employees.

Think about the effect this will have on hiring.

Read Ms MacDonald’s entire article to see a fuller the list of abuses Obamacare heaps on what used to be “our” businesses.

Remember all of this in November.

Tax vs Prohibition

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Paul Mirengoff had some remarks on some of the implications of the Supreme Court’s ruling on the Patient Protection and Affordable Care Act.  Chief Justice Roberts’ argument:

…the highly consequential debate between Chief Justice Roberts and Justice Kennedy over whether it is “fairly possible” to view the payment that must be made under Obamacare for not purchasing health insurance as a tax.  Roberts’ view that it reasonably can be considered a tax rests, at least on part, on the claim that there is no prohibition against not buying health insurance.  An individual can refuse to buy insurance, just as a basketball player can commit that last foul, though he or she will pay a price for the refusal.

Justice Kennedy’s argument:

Kennedy’s view is that the price one must pay for not purchasing insurance entails a prohibition.  He quotes the great jurist Chancellor Kent as follows: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.”

Mirengoff concludes

Kennedy’s view of this matter is more persuasive than the Chief Justice’s.  But remember, under rules of constitutional adjudication, Roberts’ view need not be the most persuasive one.  As Kennedy concedes, it must only be “fairly possible.”

And here is the danger of, as Mirengoff puts it, the squishiness of “fairly possible.”  Note that in this context, “fairly” has nothing to do with “fair,” as in a “fair coin.”  “Fairly” here means sort of reasonable, a measure of plausibility.  And that “sort of plausible” argument was allowed by Roberts to trump actual logic—and the facts of the matter that Congress had, in developing this law, explicitly removed tax language and replaced it in toto with penalty language.  Roberts abused even the squishiness of the fairly possible “doctrine” to find a tax in the law where none existed so that he could preserve a claim of constitutionality of the PPACA.

Indeed, Roberts moved himself over the line into judicial activism.  The judicially conservative thing is to strike a law that is unconstitutional, not to actively manufacture reasons for finding it constitutional.  That is judge-made law.

The Supreme Court and the Constitution

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Here’s another implication of Chief Justice John Roberts’ ruling on the Patient Protection and Affordable Care Act, courtesy of The Wall Street Journal.

According to Chief Justice Roberts, the penalty is merely a tax on not owning health insurance, no different from “buying gasoline or earning income,” and it thus complies with the Constitution. This a large loophole. The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it calls them something else and judges call them taxes.

Except that not buying a thing or a service is radically different from buying that thing or service.  This isn’t merely a matter of opposites: opposites are related to each other.  There is no relation between buying or not buying—the thing/service being bought is known; the thing/service not being bought cannot be known, and so the bought/not bought functions can have no relation to each other whatsoever.

Chief Justice Roberts writes that construing the Commerce Clause as the Obama Administration argued “would open a new and potentially vast domain to congressional authority…. The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.” [emphasis in the original]

But then

Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.

With this stroke, Roberts has cancelled the effect of his understanding on the limit of the Commerce Clause’s ability to compel commerce; he has simply transferred the ability to compel commerce to the Taxing Clause.  Which also had no prior compulsion power.

Whether the Federal government may compel our behavior via Commerce or via Taxing, our government now can compel our behavior.

This is judicial activism at its worst.