Month Archives: June 2012

On Being Taxed For Just Standing There: The Roberts Opinion on the Obama Health Care Law

by Rob Schwarzwalder

June 28, 2012

Historian John Steele Gordon makes a compelling point about todays Supreme Court ruling in the Obama health care case:

Never before, that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you dont buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

This seems a proper interpretation of what Chief Justice Roberts wrote in the decision itself. Consider some of his opinions most compelling paragraphs:

… the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

The Affordable Care Acts requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

… it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congresss power to tax.

Where does Roberts find the linchpin of his argument that the mandate is simply a constitutionally justified form of taxation? He explains:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes … That, according to the Government, means the mandate can be regarded as establishing a conditionnot owning health insurancethat triggers a taxthe required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

Sure, redefine the meaning of terms like mandate and tax, and the phrase under that theory becomes like the accelerator on a juggernaut. The only consequence a phrase so pregnant and looming its sort of like the old line, Other than that, how did you enjoy the play, Mrs. Lincoln? Accepting that only consequence is like saying we should welcome incoming nuclear ordnance. It just makes a big noise, right?

In summary, heres how Mr. Roberts logic seems to operate:

(1) The mandate is, in fact, a tax.

(2) It is a tax on something people choose not to do, as noted by Gordon above.

(3) Congress has the constitutional authority to tax people at least those whose income Congress decides is adequately high - for something they elect not to do.

This is a phenomenal moment in constitutional interpretation: Now Congress has the power to tax a specific kind of volitional inactivity. This is amazing coming from a self-professed originalist like Mr. Roberts.

Those who believe the Constitution actually means what it says know that the taxing power of Congress extends only to those things (the Enumerated Powers) over which the legislative branch of the federal government has authority. How does something people decide not to do conceivably find its way into the Constitutions limited and specific list of federal duties?

As Gordon observes, the extension of this argument is both unlimited and frightening. If I choose not to exercise, will Congress force me to pay higher taxes because Im not doing enough to sustain my health? If I dont fly in airplanes, will I be taxed for failing to do my part for the American aeronautical industry? If I dont wear brightly-colored shirts, will I be taxed because I am insufficiently supportive of the U.S. vegetable dye industry?

However absurd such scenarios might now seem, their plausibility is strengthened by a Court that has decided that Congress possesses the constitutional authority to tax choices that involve conscientious disengagement from a particular form of conduct.

Abraham Lincoln once noted that we cannot escape history. Indeed. And when the history of this court and of our time generally is written, the new federal power - delivered with a whats the big deal? tone in the Chief Justices opinion - will be an inescapable chapter in the story of libertys diminution.

How far can Congress now reach?

by Nathan Durden

June 28, 2012

On todays American Family Radios Todays Issues, Tony Perkins interviewed Ken Klukowski, who provided clarity on the U.S. Supreme Court’s confusing ruling today when it ruled 5-4 that the government takeover of health care as constitutional:

KLUKOWSKI: The only meaningful limit on the governments taxing power is whatever the voters are willing to allow in their politicians.

The practical import of this is that Congress can reach anything it wants if its willing to attach a tax penalty for you not doing it, then the whole thing gets roped in under the taxing clause of the Constitution. This case now elevates the taxing clause over the commerce clause and is the single greatest grant of power to the national government in the US Constitution.

The whole argument against this not being a tax is this isnt the government taking your money, this is the government commanding you how you have to go and spend your own money.

The whole purpose of a written constitution is so that for every grant of power to the government there must be a meaningful limit. What the Court ignored her today, what Chief Justice ignored here today is the difference between a tax and a penalty. And the legitimacy of the penalty should depend on whether its constitutional to do whatever you are being penalized for. Such as the individual mandate; if its unconstitutional under the Commerce Clause, then they shouldnt be able to impose a tax penalty on it under the taxing clause.

PERKINS: I pray that its not just the Tea Party, but that every American, every Christian in America realizes whats at stake here … Our religious freedom is at stake, the rationing boards are in place, the abortion schemes remains where you will be forced to fund abortion … that goes forward now with the Courts decision unless Congress repeals it. So these elections this fall are absolutely critical … absolutely essential that you are registered and you are voting and you vote for people … [who] dont see the government as the solution to every problem facing our nation.

Click here to listen to the entire radio interview.

Last-Minute Switch on ObamaCare Ruling?

by Cathy Ruse

June 28, 2012

Having just sped through Scalia’s dissent, a legal friend of mine observes that it is somewhat unusual. It reads like a majority opinion. Ninety-five percent of it is devoid of any criticism of the majority’s opinion, reasoning, etc. The only criticism of the majority opinion is in a few short paragraphs at the end. Almost as if it were appended at the last minute. Typically, a dissent will critique the errors of the majority opinion point-by-point throughout. That is not the case here.

Was the Scalia opinion written as the majority opinion? Opinions are written and then circulated for changes. There would be no reason for Scalia to write a “majority opinion” unless his view had the votes to succeed and he had been assigned to be the author. Could it be that the case was going to come down the other way until Roberts, or someone else, was persuaded to change his or her vote?

Court Ruling Keeps Abortion Funding, Religious Freedom Violation, Health Care Rationing and Other troubling provisions

by David Christensen

June 28, 2012

In a surprise ruling, the Supreme Court upheld Obamacare, maintaining the “individual mandate” as constitutional, not under the commerce clause, but under the taxing clause.

The only part of Obamacare the Court limited was the law’s requirements on state Medicaid programs to expand or face a loss of all Medicaid funding.

So, here are the several pro-life and religious freedom problems that now stand with the Court’s blessing, and other items of concern (section references are to PPACA, P.L. 111-148):

I. The abortion subsidies and funding scheme stand (see chart of Obamacare abortion scheme for more detail)

  1. Federal subsidies for health plans that include elective abortion in state exchanges will continue. (Section 1303)
  2. The abortion fee will require every person in a plan that has abortion coverage will pay at least $12 per year even if they do not want abortion services. (Section 1303)
  3. Allowing direct funding of abortion through direct spending in community health clinics (Section 10503), and high risk pools (Section 1101).
  4. Subsidies for the government run “multi-state” plans remains even if they include elective abortion (Section 1334).
  5. There are No conscience protections against government discrimination against businesses, providers, or health insurers who refuse abortion. The limited conscience protection is from insurers against providers, but the government can discriminate against anyone who refuses to offer or refer for abortion if they chose (Section 1303).

II. Religious Freedom infringement through HHS contraception/abortifacient mandate, which narrowly restricts religious liberties to churches (Section 1001). Penalties for failure to comply could be $100 per day per employee for the employer (and insurer) who fails to offer “preventive care services”, including contraceptives, abortifacients and sterilizations free to the patient.

III. The Independent Payment Advisory Board (IPAB) remains in effect, an entity that will reduce Medicare costs through rationing health care (Section 3403).


  1. The “individual mandate” continues as a tax on people who do not buy health insurance, whether from an employer or in the individual market (Section 1501).
  2. The mandate remains on mid-size and large employers to offer “minimum essential coverage” —- which means plans that can’t exceed 9.6% of salary, and plans cover 60% of total health care costs (they don’t have to cover all the essential benefits). If employers don’t offer these, they face penalties (Section 1511).
  3. States are required to establish exchanges or, if they chose not to, the Federal government will establish and run them in the state (Section 1311).

SCOTUS Health Care Ruling Jeopardizes Future of Liberty

by FRC Media Office

June 28, 2012


CONTACT: J.P. Duffy or Darin Miller, (866) FRC-NEWS or (866) 372-6397

Family Research Council Says Supreme Court Health Care Ruling Jeopardizes Future of Liberty

June 28, 2012

WASHINGTON, D.C.- Family Research Council (FRC) criticized the U.S. Supreme Court’s decision today to uphold the entire 2010 health care law through its decision in NFIB v. Sebelius.

FRC has been at the forefront of this debate over what can only be described as a government takeover of healthcare. FRC uncovered and rallied opposition to the taxpayer funding of abortion contained in the bill and after its narrow passage continued to fight the measure in the courts. FRC’s legislative advocacy arm, FRC Action, scored the votes on the Obama health plan in its annual scorecard, and aired a national TV/radio ad campaign against the legislation.

FRC submitted an amicus brief, authored by legal counsel Ken Klukowski in Florida v. HHS, that was cited by federal district Judge Roger Vinson in his decision to strike down the entire Obama health plan as unconstitutional. FRC submitted another brief, also authored by Klukowski, in NFIB v. Sebelius cited by the National Federation of Independent Business in its brief before the Supreme Court.

Of the decision, Family Research Council Legal Counsel Ken Klukowski, J.D., made the following comments:

The Supreme Court has today given the federal government unlimited authority to use its tax power to require Americans to engage in specific commercial activity. The obvious implication is chilling: Uncle Sam can make you buy anything, at any price, for any reason,” said Klukowski. “That’s why today, the American dream gave way to a real American nightmare. President Obama’s vow about ‘fundamentally transforming the United States of America ‘ was fulfilled. The Supreme Court essentially said it cannot articulate any limiting principle on the power of the federal government.

By ruling that the law is constitutional, the Supreme Court gave the federal government the power to order private citizens to enter into contracts with private organizations and give those organizations their money. This ruling fundamentally transforms the federal government from one of limited and specified powers in the Constitution to an all-powerful central government with plenary power over every area and aspect of Americans’ lives from cradle to grave.”

Of the Supreme Court’s decision, Family Research Council President Tony Perkins made the following comments:

Today’s Supreme Court decision will do serious harm to American families. Not only is the individual mandate a profound attack on our liberties, but it is only one section among hundreds of provisions in the law that will force taxpayers to fund abortions, violate their conscience rights, and impose a massive tax and debt burden on American families.

The Obama administration has created, for the first time in American history, new federal regulations that toss aside the constitutional right to religious freedom by forcing religious institutions and employers to pay for abortion-causing drugs, contraceptives and sterilizations.

It’s now time to replace those leaders who disregarded the constitutional limitations of their authority and the deeply held religious beliefs of their constituents, voting for the government takeover of healthcare. We must repeal this abortion-funding health care law and restore the Constitution to its rightful place,” concluded Perkins.


NBC Chief Medical Advisor Sees Abortion as Science and a Means of Preventing Disease

by Family Research Council

June 27, 2012

On Friday, June, 8, NBCs Today show ran a panel interview on the topic of prenatal testing and abortion. The primary interviewee was NBCs Chief Medical Advisor, Dr. Nancy Snyderman.

Sadly, during the clip Dr. Snyderman advocated for aborting babies that receive a poor prenatal diagnosis. When questioned by host Savannah Guthrie about the ethics behind such a decision, Dr. Snyderman shockingly responded that such use of abortion can be a means of disease prevention.

Dr. Silvermans eugenics approach —- eliminating certain populations of people because they have a disease or disability —- is not unlike a social experiment that Demark has undertaken. The country is currently seeking to abort all babies with Down Syndrome, aiming to eradicate the disease.

Im not entirely sure how professionals such as Dr. Silverman or the government of Denmark make peace with the reality that they are eradicating entire populations of people, not diseases. Any elementary school science student can easily decipher the difference between a disease and a person.

Persons have dignity, not because of what they accomplish or how well they cognate, but simply because they are persons. Prenatal testing must be used in a way that respects the dignity inherent to each individual. In the same way that science is at the service of the human person, prenatal testing is good only insomuch as it leads to a path of treatment and support respectful of the mother and infant patients it seeks to serve.

Family Research Council has co-hosted a few events over the past year in an effort to educate and inform on this most critical topic. The first event was an afternoon lecture, which included phenomenal scientific research on the intellectual treatment for Down Syndrome (wouldnt it be wonderful if ABC reported on this great news?). The second event included a day-long conference geared towards medical professionals on treatment and support available after receiving a poor prenatal diagnosis.

One Nurses Travails with Student Debt Paints a Bigger Picture

by Chris Gacek

June 26, 2012

Its not very often when I spot a great article on college debt and then see it posted by another writer who focuses on this social disaster. However, that is what happened yesterday when I read Ken Serranos article (Massive College Debt Can Burden Graduates for Decades) which appeared in USA Today and soon saw a link to it on Glenn Reynolds Instapundit cite. (Reynolds is quoted in the article.)

Most poignant is the story of Kathleen Bijas, 27, an emergency room nurse from New Jersey who makes $60,000 per year and has $160,000 in student loans. Her monthly loan payments total $1,608. Two paragraphs capture much about the financial situation in which she now finds herself:

Saddled with $160,000 in student loans, the emergency room nurse from Ocean Township uses about half of her take-home pay to whittle down her debt, she said. At 27, she lives at home with her parents while the $1,608-a-month payments take their toll despite a stable job and comfortable salary.

I wont be able to buy a home. I cant buy a car, said Bijas, who now makes about $60,000 a year. The idea of getting married and getting kids is frightening. If I can’t afford to move out of my parents house, how can I afford to raise someone? Its all going right out the window.

Ms. Bijas really hits the nail on the head. College loan indebtedness will affect the housing industry, the auto industry, and the formation of families for decades. It will slow any economic recovery.

It is time to stop increasing loan amounts and produce cost-saving alternatives to bricks-and-mortar colleges. As Professor Reynolds notes in the article, You shouldn’t have to borrow six figures to get a college education.


Spoiled Kids, Bad Parents

by Rob Schwarzwalder

June 26, 2012

The New Yorker is not my literary flavor of the month. It’s smug tone and retrograde, endlessly astonished liberalism make it, shall we say, an acquired taste.

That said, even a stopped clock is right twice a day, in proof of which this venerable if unpalatable publication has just come out with, “Spoiled Rotten: Why Do Kids Rule the Roost?

The author’s insight seems, in itself, pretty accurate. A lot of American kids are obnoxious, impolite, foul-mouthed, and preoccupied with life’s superficialities. Elizabeth Kolbert, the writer of the piece, attributes the fact that, according to one survey, two-thirds of American parents say their children are spoiled to excessive intervention and supervision, wanton materialism, and even evolutionary biology (she says rather baldly that humans are “unlike other apes” - a “speciest’ perception I choose not to share). Yet perhaps most striking is what this lengthy article does not say: That a mother and father are the core of any healthy family and are essential to the well-being of a child. (See for more information.)

We live in an era of massive marital instability. When parents divorce, they compensate their children with “stuff,” as though expensive trinkets will make up for the absence of a father. Some parents surely over-intervene, as in the case reported in this article of the couple who sued their child’s high school because he did not obtain a high grade on a term project. This would tend to make any boy or girl feel not just “special” but, at a deep psychological level, both unaccountable and imperturbably arrogant. The still point of this child’s turning world would not be, per T.S. Eliot, Christ but rather his own incessant whine.

What “Spoiled Rotten” does not account for is something so basic that its very obviousness stands in stark relief to all the sophisticated reasons listed by the author: Children are not adults, and they need a male father and a female mother (in the era of homosexual activism, those are not redundant terms) who wed affection, discipline, time, instruction, fidelity (to one another and to their family), and moral instruction in the way they raise them.

The Psalmist reminds us that “children are a heritage from the Lord, the fruit of the womb a reward” (Ps. 127:3). If that’s true, then they deserve conscientious and prayerful parenting, things of which The New Yorker seems, quite sadly, oblivious.

Supreme Court Declines Mt. Soledad Case: We Live to Fight Another Day

by Chris Gacek

June 26, 2012

  • On Monday, June 26, 2012, the U.S. Supreme Court declined to hear the case of Mount Soledad Memorial Association v. Trunk. The Mount Soledad case involves a First Amendment / Establishment Clause challenge to the presence of a large white cross [that] has stood atop Mount Soledad in San Diego, California, since 1954 as a memorial to our Nations war veterans. The cross and memorial now sits on federally owned land, and the United States Court of Appeals held previously that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.

  • The Courts decision to not hear the case next term is not a defeat for efforts to defend the Mount Soledad Cross. Furthermore, it not a defeat for efforts to correct the extreme turn Establishment Clause doctrine has taken in recent decades.

  • As Associate Justice Samuel Alito made clear in a statement on this decision, the Court chose to wait in this instance because it did not have a final disposition of the case before it. The Ninth Circuit had sent the case back to the district court emphasizing that its decision and remand d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].

  • As Justice Alito stated, Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Courts decision to deny the petitions [for the Supreme Court to hear the case].

  • In sum, it appears that no member of the Court felt the case was far enough along procedurally for it to be heard at this time.

  • We live to fight another day.

(Thanks to FRC’s Ken Klukowski for all his work on this case and insights about the Court’s decision yesterday.)

May 2012 «

» July 2012