Pin the Tax on the Donkey

The latest Time magazine arrived yesterday. John Roberts is on the cover, staring knowingly into the distance. He must be looking ahead to all of the Federal mandates that will be passed as a result of his ruling last week on the health care law.

A few friends have asked me what I thought of the court’s ruling. My short answer: Knock me over with a feather. I was sure that the Roberts Court would strike the individual mandate down. I would have been disappointed because I think anything that moves us away from employer-sponsored health insurance is a good idea. Obamacare doesn’t go nearly far enough, but is a step in the right direction. That said, I certainly didn’t think the mandate would be upheld on the grounds that the penalty associated with not having health insurance is a tax, and therefore is well within the province of the Federal government. I suppose it’s worth pointing out that the law’s proponent’s didn’t think so either.

I’m not a lawyer. It coulda happened, and I give thanks daily that it didn’t. But in my ignorance, I thought courts had to make their decisions based on the merits of the arguments placed in front of them by the litigants. I had no idea that they could find or make their own arguments. This (in my humble opinion, anyway) is an astounding act of judicial activism. And if you believe the humble part, I would like to talk real estate with you.

The Wall Street Journal published an editorial a few days ago that I think got this right. Roberts’ ruling, the Journal said, creates a precedent that expressly allows the Federal government to mandate pretty much any behavior it wants as long as there is a financial penalty attached to your failure to engage in that behavior. You can read the Journal’s editorial here.

This is the largest expansion of government authority that any of us will see in our lifetimes. And it was not only presided over, but was crafted by a supposedly arch-conservative chief justice who was appointed by that wilting violet of liberalism, George W. Bush.

The healthcare law will be vilified as a massive tax during the upcoming campaign, and for other reasons that have little to do with its incompleteness or other flaws. Meanwhile, this massive increase in Federal authority to mandate behavior will, I suspect, go largely unnoticed.

Happy Dependence Day.