Over the last few weeks (most of which I spent on a family vacation outside the country), I read the recent U.S. Supreme Court decisions from the 2011-12 term and tried to write this post several times. However, none of the drafts seemed to convey what I felt needed to be said. I think with the passage of time and more thought, I can now say what I’ve wanted to say.
I was very disappointed by the ruling upholding “Obamacare”. However, as we conservatives near the end of our primaries and begin to approach the last lap of the campaign toward the November finish line, I believe the U.S. Supreme Court gave us a great gift this term—though, admittedly not the one we wanted—if we will now seize that gift, and then use it to defeat Obama and send Romney and the Republicans to Washington.
The Court reminded everyone in National Federation of Independent Business v. Sebelius and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that there are real limits to the delegated powers of the federal government contained both in the body of the original text of the Constitution, and in the Bill of Rights and the 14th Amendment. In fact, Justices Roberts’ and Kennedys’ opinions in Sebelius, in which the limits of the Commerce Clause and Spending Clause powers were clarified by a majority of the Justices, contain some of the strongest re-iterations of, and re-commitments to the Founders’ original design of Federalism to be found in any opinions from the Court in the last 100 years. Amazingly, even two of the Court’s most liberal justices (Breyer and Kagan) agreed with the limitations of the Spending Clause, and that those limitations had been violated by Congress. Moreover, the Court struck a strong balance in Arizona v. United States between the delegated powers over foreign affairs and naturalization held by the federal government and the general sovereign powers retained by the states.
Even the bizarre ruling by Justice Roberts and the four liberal justices to uphold the individual mandate (and, therefore, most of the law) was, in an odd way, a gift—maybe the most important gift of all. As he found the mandate to really be a tax, Justice Roberts had to acknowledge (expressly and implicitly) truths that Americans should know deep in their DNA, but we sometimes forget:
- when we create any government, that government has to be funded by taxes so the power to tax is given to government;
- the power to tax is the most coercive, and potentially despotic power that government holds;
- the power to tax delegated to the federal government has expanded since 1789 by constitutional amendment to include direct taxes on individuals, and it has been used to implement many coercive policies over the last 100 years; and
- the only real constraint on the exercise of the power to tax is political, not legal—that is the only effective constraint is the one exercised by the people through their right to vote and to petition their government.
In the end it is that last power—the rights of the people to alter or abolish their government through their votes and through their direct petitions to their elected officials—retained by individual citizens, which we always have exercised to control taxation. All Justice Roberts’ opinion did was to remove the final decision as to the Democrat’s abuse of the taxation power from the courts and return it where it belongs—to the people to punish and change. In doing so, he pitched that ball right into our wheelhouse; all we have to do now is control the swing of our bat and make contact.
From the original Boston Tea Party, to the Coolidge and Kennedy tax reductions, to Howard Jarvis’ Proposition 13, to Kemp-Roth and the Reagan Revolution, and now to the Tea Party Movement, we have met the challenge of excessive taxation and defeated it. We must be vigilant and do so again with our votes this fall. In the meantime, we must support those state politicians, including Governor Perry of Texas and Governor Scott of Florida, who are using the clarification of the limits of the Spending Clause to fight the expansion of the federal strings of Medicaid into their states; and petition other state governments to do the same.
So, we now know our mission for the fall election (if any of us out there still were confused)—to abolish Democrats’ abuses of the tax and spending authority by abolishing both the Obama administration the Democratic majority in the U.S. Senate. As we’ve now been reminded, we still have the power to correct these abuses, let’s exercise it.