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If the inalienable right to liberty means anything, it means government has no inherent right to penalize or tax inactivity in order to compel behavior. Indeed, regarding the Commerce clause, on page 44 of his Opinion, C. J. Roberts states, "The Federal Government does not have the power to order people to buy health insurance." But then he immediately follows with, "The federal government does have the power to impose a tax on those without health insurance". The frightening implications of this analysis is well stated by Robert Book in today's Item 1 : "If Congress has – as the Supreme Court suggests – a virtually unlimited power to tax any activity or lack of activity, with no intention to raise revenue, then Congress has the power to do – or force citizens to do – virtually anything."

In today's Item 2 Quin Hillyer recounts Obamacare's Hideous History. In spite of the Supreme Court ruling, "This law remains utterly illegitimate … It is worth studying the foregoing litany of injustices, committing it to memory, and letting its lessons burn with a cold fury in our brains and souls -- a well-considered and purposeful fury that impels us all to do everything necessary to counteract the baleful effects of this abomination …"

So what must we do? We must hold to account and remove those Senators and Representatives responsible for enacting perhaps the most tyrannical, misbegotten legislation ever foisted upon our country. In today's Item 3, Obamacare: The Final Battle, Avik Roy brings focus to the task ahead. He discusses the plan, the math, the message, the logic, and the challenge we face in repealing Obamacare and gaining a mandate for free-market reforms.

Robert Book 6/29/2012

Reacting to the Supreme Court’s decision on the health care law, many conservative legal scholars have noted that although the law was upheld, a majority of the Court held that an individual mandate is not a constitutional exercise of Congress’ power under the commerce clause. By upholding the mandate under the taxing power, they say, the Court has allowed the health care law to stand, but has also taken an important step toward limiting the power of the federal government by ruling, for only the third time since the FDR administration, that Congress exceeded its power under the commerce clause.

Advocates of limited government, it is said, have lost the battle of health care, but won the war of the commerce clause. This view has been expressed by a wide range of scholars and pundits, ranging from Georgetown Law Professor Randy Barnett (who has a claim to be the intellectual father of the constitutional challenge to the health care law), Case Western Reserve Law Professor Professor Jonathan Adler, George Mason University Law Professor Ilya Somin, Loyola (Los Angeles) Law Professor Dov Fischer, pundit George Will, and writers Charles

Hurt, Joseph Curl, and Jay Cost. No doubt I’ve missed a few.

But no matter how many conservatives console themselves with the commerce clause victory, the fact remains that this decision endorses a huge expansion of federal government power in a way that is even more limitless than the most expansive interpretation of the commerce clause.

The commerce clause has been interpreted to allow Congress to regulate virtually any economic activity, under the theory that it affects interstate commerce. The issue in this case was whether it could use the same rational to regulate "inactivity" by imposing a penalty for failing to obtain qualified health coverage. A 5-4 majority of the Court said "no" to this argument, but a different 5-4 said that Congress could obtain this same end by taxing inactivity. And this is where the Court has endorsed an unlimited expansion of federal power.

The constitution gives the federal government the power to tax imports and exports, selling or manufacturing specific commodities (excise taxes) and incomes, and to impose user fees for government services. It doesn’t say they can tax anything, and the power to tax has always been understood to be limited to those types of taxes the constitution specifically allows. That’s why a constitutional amendment – the 16th – was required to implement an income tax a century ago.

Under this decision, the power to tax is now – for the first time – unlimited. To borrow the language of the commerce clause debate, the federal government can now tax inactivity. This is an unprecedented expansion of the power to tax. Combined with the fact that it allows a tax which is intended not to raise revenue, but is specifically designed to penalize behavior – worse, a lack of behavior – this is truly unprecedented. The law imposes a penalty/tax of about $700 per person for not buying "qualified" health insurance. By the same reasoning, Congress could impose a tax of $7000 for not complying with USDA dietary guidelines, or a $7,000,000 for not recycling. The health reform law – in response to an outcry before it was passed – specifically states that a person can’t go to jail for refusing to pay the uninsurance tax; a future law need not have that restriction. Nowadays in most cases one is sent to jail only for intentional tax evasion or fraud rather than mere nonpayment; a future could make it a crime simply not to pay.

If the "tax" for not doing something is so high no one can actually pay it, and failure to pay is a crime, that is equivalent to legally requiring that a person do whatever it is to avoid the tax. Chief Justice Roberts pointed out that the Constitution does not specifically prohibit taxing inactivity. Indeed, the only taxes it specifically prohibits to Congress are capitation taxes, direct (i.e., property) taxes, and taxes for voting (in the 24th amendment).

Indeed, Case Western Law Professor Erik Jensen used precisely this reasoning (in a paper that came out shortly before the decision) to argue that such an understanding of the the taxing power "would lead to a conception of congressional power that is effectively unlimited."

While Roberts may have closed the window of the commerce clause, he simultaneously opened the barn door of the taxing clause to allow an expansion of power that has never been allowed before. If Congress has – as the Supreme Court suggests – a virtually unlimited power to tax any activity or lack of activity, with no intention to raise revenue, then Congress has the power to do – or force citizens to do – virtually anything. And as a previous Chief Justice, John Marshall, wrote in McCulloch v. Maryland in 1819, "the power to tax involves the power to destroy."

Or to go back to Jonathan Adler’s metaphor, conservatives may have won the battle of the commerce clause, but lost the war for limited government.

By Quin Hillyer July 3, 2012

Amid John Roberts' craven surrender to "the political branches" on Obamacare -- a bizarre capitulation, at that, since Roberts honored a statute that he hallucinated, but neither Congress nor the president authored nor authorized -- Americans should remember just how many rules, standards, and traditions had to be twisted or bulldozed in order for the [un]Affordable Care Act to become law.

For Obamacare to be enacted in the first place required each of more than a dozen, highly unlikely or even suspect, occurrences or actions. It then took some serious constitutional hocus pocus for it to survive in court. Consider the awful litany:

First, rogue prosecutors, drunk with bloodlust, had to break all sorts of rules in order to secure the conviction of Alaska's U.S. Sen. Ted Stevens. (Stevens, in his hubris, also had to insist on a speedy trial he thought would clear his name before the election of 2008, when in fact it resulted in the conviction that sealed his electoral fate.) Also, Judge Emmet Sullivan, a no-nonsense jurist, had to decide not to declare a mistrial before the verdict despite growing evidence of prosecutorial misconduct. (Sullivan didn't necessarily err; he just didn't have enough proof of misconduct yet. When it came, post-trial, he cracked down fairly hard on the scofflaws.) Had Stevens been re-elected, he presumably would never have voted for Obamacare, which therefore would have failed by one vote… even if none of the other, subsequent abominations (as we will discuss) were forestalled.

Second, the Democrats had to succeed in flat-out stealing the election for a Minnesota-based U.S. Senate seat from Republican Norm Coleman. In addition to securing the counting of highly questionable "votes" throughout the recount process, the Democrats also likely benefited from the illegal votes of hundreds of felons. Had Coleman been re-elected, there is no way he would have voted for Obamacare, which therefore -- cue the refrain -- would have failed by one vote… even if none of the other, subsequent abominations (as we will discuss) were forestalled.

Third (although chronologically first), the Washington Post had to succeed in its unprecedentedly and viciously unfair coverage of the U.S. Senate race in Virginia, both capitalizing on Sen. George Allen's missteps (he ran a terrible campaign) and skewing the "news" relentlessly against him even when he didn't make mistakes. Had he not lost by a tiny 8,805-vote margin, there is no way he would have voted for Obamacare, which therefore -- cue the refrain -- would have failed by one vote… even if none of the other, subsequent abominations (as we will discuss) were forestalled.

(Parenthetically, without as direct a link either to skullduggery or to a the clearly relevant time frame, would-be Obamacare opponents also likely would have been in office in several other states under ordinary circumstances. In New Jersey, liberal Democrat Frank Lautenberg had returned to the Senate in 2002 due to a logically and legally unsupportable state supreme court ruling allowing him to replace Robert Torricelli on the ballot after the legal deadline. In Montana, Republicans shot themselves in the foot in 2006 by not pressuring incumbent Conrad Burns into retirement following his association with the Jack Abramoff scandal; he lost an otherwise safe seat by less than one percent of the vote. And it didn't help that in Oregon, incumbent Republican Gordon Smith lost another close race largely due to votes siphoned away from him -- perfectly legitimately, but still frustratingly -- by a candidate of the Constitution Party.)

Fourth, there clearly were good reasons to believe Sens. Ben Nelson and Mary Landrieu would refuse to keep the Obamacare legislation alive had it not been for (respectively) the infamous Cornhusker Kickback and Louisiana Purchase agreements. Granted, horse-trading is always part of politics (e.g.: Louisiana's John Breaux handing a key vote to Ronald Reagan after declaring "my vote isn't for sale, but it is for rent"), but these special Obamacare deals smelled particularly rancid. (For that matter, Democrats had to promise more compromise than they ever intended to deliver in order to secure support in committee from Republican Olympia Snowe, who voted to keep it alive only to have her hopes forsaken by the final shape of the bill. Yes, the bill would have passed committee anyway, but it's also incontrovertible that some Democrats in both chambers excused later procedural votes for the package by describing it as "bipartisan," based solely on Snowe's committee vote.)

Fifth, Harry Reid had to play parliamentary hardball (and Mitch McConnell had to let him get away with it) in order to force the key vote on initial Senate passage before the Senate left for Christmas break of 2009 -- whereas if senators had gone home for Christmas and heard first-hand the intensity of public opposition, not even the various Kickbacks and Purchases (and other special deals) would have sufficed to keep some of the senators on board for the one-vote victory.

Sixth, the Senate had to pull other procedural rabbits from its hat in order to make up for not letting the House originate a revenue-raising bill and to make up for the loss of Massachusetts' Senate seat to Scott Brown. Chief among these was taking an orphan House bill and stripping everything from the bill but the number, replacing the entire text with the text of Obamacare. Again, this is legal, but hardly an admirable way to force through a bill of this size and importance on a party-line vote.

Seventh, Arlen Specter abandoned the entire five previous years of his public pledges and posturing -- pledges without which he never would have been re-elected in 2004 -- by switching parties in a nakedly unprincipled bid to somehow, some way hold onto power. Had he been running for re-election in a Republican primary rather than a Democratic one, there is no way on Earth he would have voted for the health-care monstrosity.

Eighth, Nancy Pelosi and Harry Reid had to orchestrate the most dishonest set of bait-and-switch procedural maneuvers seen in Congress in decades in order to secure shifting bare-majorities for elements of ObamaCare, so as to give their own members various degrees of deniability for passage of the whole -- which, clearly, could not and would not have passed in a straight-up vote held without any subterfuge.

Ninth, the administration and congressional Democrats had to use major legerdemain to avoid budgetary procedural shoals by mis-labeling some spending, and double-counting some savings, in order to claim to be not busting budget rules that rather clearly were actually being busted. Had the Congressional Budget Office been able to officially (and accurately) project the bills as budget busters, Democrats would never have been able to muster the super-majorities needed for passage.

Tenth, Barack Obama had to twist more arms than a championship wrestler in order to get enough House members in line to bring passage of the bill even within striking range.

Then, eleventh, he had to fool enough pro-life Democrats (who had to be stupid enough or cynical enough to let themselves be "fooled") into believing that an executive order from him could carry enough of the force of law to ensure that no public funds would be used for abortions, and that his administration would actually observe both the letter and the spirit of that order. (The final, official House tally was 219-212, but the de facto passage was by only one vote -- several of the "aye" votes would not have switched in that direction at the last minute unless they had enough "cover" to say they weren't the single vote that pushed it over the top.)

Twelfth, as has been well documented, the administration and Democrats had to argue first that the individual mandate's penalty was not a tax (in order to round up congressional votes), then had to argue in some courts that it was a tax (for some purposes) and in other courts that it wasn't a tax (for other purposes), and then have to use the "it's a tax" argument as a Hail-Mary afterthought in its Supreme Court argument even while knowing full well that if they somehow won the case on that basis, they would immediately disavow in public the very argument they used to win the case.

That, therefore, was the rancid sausage John Roberts apparently felt he had to salvage in supposed deference to the sanctity of the legislative process.

Even then, with the law having already experienced numerous near-death experiences and survived only on the basis of trickery and sheer dishonesty, this unconstitutional and illegitimate law -- and a deeply unpopular one with a majority of the public -- was on its death-bed again before Roberts lost his nerve. Roberts reportedly sided originally with those who would kill the law in its entirety. Logically, legally, constitutionally, he knew the law did not pass muster. Logically, legally, constitutionally, he also knew that the mandate's penalty in particular was not a tax. That's how he voted in conference, and that's what he was prepared to announce -- until Obama's pressure and public scolding from some editorial boards made Roberts blink.

So, in illegitimate moves number thirteen and fourteen, Roberts both said that 13) something not called a tax and not located in the revenue section of the bill and not really resembling a tax in most respects, and not amounting to a tax according to the "most straightforward" or "most natural" reading of the law, could nevertheless be assumed to be a tax for constitutional purposes if he squinted hard enough, used his imagination, and climbed through Alice's rabbit hole; and that 14) such a tax would be constitutionally legitimate even though it fits none of the definitions of acceptable taxes provided for in the Constitution's text itself.

As noted eloquently enough in so many other columns that no elaborate re-explanations will be attempted here, it is also worth noting that Roberts also had to strain for constitutional "support" by citing a mere aphorism of a private letter from Ben Franklin, with a highly pregnant ellipse to make the quote applicable at all; and that he had to wildly conflate tax breaks or incentives on ownership or activity with a new tax on inactivity (as if the two -- a tax on the one hand, and a tax exemption on the other -- are among the same species and breed of beast).

In sum, then, this most sweeping of economic legislation ever passed by Congress has survived every step of the process by trickery, dishonesty, or breathtaking sophistry, while being defibrillated back into a heartbeat several times only with the aid of hack science and dark arts worthy of an illicit union between Dr. Frankenstein and a skilled necromancer.

There will be time aplenty in the coming months to take apart Roberts' slipshod, intellectually illegitimate opinion clause by clause and argument by argument. There will be time enough to show that his transparent hackery quite devastatingly undermined the very "legitimacy" of the court that he made such a purely political decision to try to protect.

For now, though, it is worth studying the foregoing litany of injustices, committing it to memory, and letting its lessons burn with a cold fury in our brains and souls -- a well-considered and purposeful fury that impels us all to do everything necessary to counteract the baleful effects of this abomination, and to make sure such a creature never raises its horrendous head again. This law is (figuratively speaking) the spawn of vile political beasts. It must be decapitated.

By Avik Roy July 2, 2012

Mitt Romney said it best on Thursday. "If we want to get rid of Obamacare, we're going to have to replace President Obama." Those who have been sitting on the sidelines, out of complacency or loyalty to someone else from the primaries, must get out of their chairs and get to work. But while that work must end with Mitt Romney in the White House, it must begin with a Republican majority in the Senate.

The plan There is much confusion and disagreement among Republicans as to whether or not Obamacare can be repealed via reconciliation, which would require 50 votes in the Senate -- and a Republican vice president -- instead of the filibuster-proof 60. Governor Romney has committed to repealing Obamacare via reconciliation. "We have to repeal Obamacare, and I will do that . . . with a reconciliation bill. . . . We can get rid of it with 51 votes," he said last October.

But the Senate majority needed to repeal Obamacare is far from guaranteed. Indeed, if the election were held today, Republicans would probably fail.

But there is one aspect of Obamacare that, above all others, will matter to the broadest swath of American voters: the degree to which the law drives up the cost of health insurance. And this is the message that opponents of Obamacare must hammer home.

But the opposite has happened. In 2011, the average family health plan cost $15,073, a jump of $1,303 -- 9.5 percent -- from 2010, the year that the president signed Obamacare into law. Over the same period, median household income increased by only 4 percent, from $49,445 to $51,413. That means that, for the average family in 2011, health premiums amounted to a staggering 29 percent of household income.

Imagine if the amount you paid in taxes last year went up by 9 percent, even though your income barely budged. That's what's going on with American health insurance under Obamacare, and it's going to get worse. Why? It all comes down to the economics of insurance.

The law's famous guarantee that you can buy insurance after you're already sick--the situation otherwise known as "preexisting conditions"--gives Americans a huge incentive to go without insurance until they fall ill. The dirty secret of the law's individual mandate is that it's too weak: Millions will decide to pay the $695 fine, knowing they can buy insurance later, instead of ponying up $15,000 for health insurance. Their absence, in turn, will drive adverse selection, the process by which only the sickest people buy insurance, driving premiums to unsustainably high levels.

The law's requirements that plans cover a government-approved list of "minimum essential benefits" requires that every American will have to pay for things he or she isn't likely to consume, like acupuncture and substance-abuse services. It's like going to a restaurant where you're forced to have a seven-course meal when you would have been just fine with three, and you don't like salmon anyway.

A tiny minority of people will benefit financially from Obamacare: those who have serious illnesses, who are uninsured today, and who have low-enough incomes to qualify for maximal subsidies. Everyone else will pay more. Jonathan Gruber, an MIT economist who helped design Obamacare, has predicted that individual-market premiums in Colorado will go up by 19 percent by 2016, owing to the Affordable Care Act. And that's on top of existing health-care inflation. In Minnesota, Gruber projects, premiums will go up by 29 percent because of the law. In Wisconsin, they'll go up by 30 percent. And remember: It's not like health insurance is cheap today.

The challenge There are two problems, politically, in explaining these issues to American voters. The first is that these concepts aren't always the simplest things to explain. But it must be done. After years of conservative legwork, many Americans today understand that raising taxes on the "wealthy" means raising taxes on employers. Similarly, conservatives have to do the legwork of explaining how Obamacare's nice-sounding insurance regulations are a Trojan horse for higher premiums.

The second problem is that the half of Americans who get insurance through their employers don't get to see how much their insurance costs. We all know what our monthly paychecks look like, but very few of us know how much our employers spend on our health plans. All we know is that we didn't get a raise last year, or the year before. But that's what we have to explain to voters: how the rising cost of insurance is soaking up an increasing portion of their wages.

Finally, we have to remind voters that conservatives stand for lowering the cost of insurance by removing costly mandates and by giving people freedom to sign up for the insurance plans of their choosing. Candidates for the Senate must bone up on these concepts and explain them as they campaign for office.

If we don't, we will lose. And if we lose, we will be stuck with Obamacare forever. And, even worse, we will have deserved it.