Chief Justice Roberts’ ruling Thursday in NFIB v. Sebelius is a bitter loss for constitutional conservatives, delivered to us by a judicial Benedict Arnold. Forget the so-called long term victory contained in the commerce clause limitations. There’ s no denying that Roberts’ majority opinion represents a clear judicial defeat for defenders of the Constitution and individual liberty.
Roberts knew he was conjuring up a decision that would make the American people wretch. But judicial activism to limit the power of the individual and extend the powers of the federal government has been going on since the Supreme Court first caved to FDR’ s power grabs in a series of capitulations that culminated in the odious 1942 Wickard v. Filburn decision.
Now comes the equally odious NFIB v. Sebelius decision, in which Roberts rewrote a law from the bench. The Chief Justice wasn’t writing a legal opinion. He offered a political solution. More importantly, he just told us which team he’s playing on. He’s with the anti-constitutionalists. His legacy as their champion is secure.
Roberts’ decision to call the individual mandate a “tax” placed the Patient Protection and Affordable Care Act in violation of the Constitution’s Origination Clause. Article 1, Section 7, Clause 1 states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
The legislative history of the Patient Protection and Affordable Care Act is clear. The only thing about the law that “originated” in the House of Representatives was the bill number, H.R. 3590.
As I wrote in my book, Covenant of Liberty:
On September 17, 2009, Congressman Charlie Rangel introduced a bill in the House, H.R. 3590, the "Service Members Home Ownership Tax Act of 2009," whose purpose was "to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees." The bill passed the House on October 8 by a 416-0 vote.
On November 19, Harry Reid introduced his own version of H.R. 3590 in the Senate. He took the bill that had been unanimously passed by the House, renamed it the "Patient Protection and Affordable Care Act," deleted all its contents after the first sentence, and replaced it with totally different content. What followed was the first pass of the Senate version of ObamaCare.
In his majority opinion, Justice Roberts failed to even mention the bill’s legislative history. He ignored the Origination Clause problem presented by Senate Majority Leader Reid's “shell bill” and its constitutional circumvention. Presumably, he relied upon the “enrolled bill rule” established in the Court’s 1892 Marshall Fields Co. v. Clark decision as an excuse to overlook Senator Reid’s fraudulent trickery. Under the “enrolled bill rule,” the Court essentially says if Congress tells it a bill originated in a specific House, it simply accepts that statement of enrollment as the “proper origination of the bill.”
Roberts may have also relied upon a very recent and highly suspect legislative precedent that some claim established the legitimacy of this “shell bill” Origination Clause scam. It was the same tactic used when the Senate passed the infamous TARP Bailout Bill in October, 2008.
Roberts did, however, argue emphatically in the grotesquely twisted logic of his majority opinion that the penalty to be paid by individuals who failed to purchase health insurance was a tax. He made this dubious argument despite the facts that the bill itself fails to mention the word “tax,” and President Obama and the Democratic members of Congress who passed the bill in 2010 vigorously denied on innumerable occasions prior to its passage that it was a tax.
In effect, Justice Roberts became the second con artist in a two-man bait and switch scam. Had President Obama called the individual mandate a “tax” prior to its passage, it simply would have not had the political steam to pass. After all, it only became law by the barest of margins using the most deceptive of techniques. Justice Roberts effectively announced that the federal government had been kidding all along. Yes, of course, he said, the individual mandate was a tax.
Having accepted the “shell bill” scam, Roberts was now forced to play an Origination Clause “shell game.” Rather than explain why the Senate's ruse did not circumvent the Framers' clear intent in the Origination Clause, Roberts ignored the question entirely. But as James Saturno of the Congressional Research Service wrote in “The Origination Clause of the U.S. Constitution: Interpretation and Enforcement,” there is good recent judicial precedent to invalidate this particular legislative chicanery:
The application of the enrolled bill rule to insulate cases arising from the Origination Clause, however, does not appear to be absolute. In [United States v. Munoz-Flores (1990)], ... the Court held that while a judicial finding that Congress had passed an unconstitutional law might in some sense be said to entail "a lack of respect" for Congress’ judgment, that this was not sufficient to make a question justiciable, on the basis of either the enrolled bill rule or as a political question. Justice Marshall, writing the majority opinion of the Court, stated that:
"If it were every [italic in original] judicial resolution of a constitutional challenge to a congressional enactment would be impressible…Congressional consideration of constitutional questions does not foreclose subsequent judicial scrutiny…Although the House certainly can refuse to pass a bill because it violates the Origination Clause, that ability does not absolve the Court of its responsibility to consider constitutional challenges to congressional enactments…A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than would a law passed in violation of the First Amendment."
Scalia, in his NFIB v. Sebelius dissent, touched on the Origination Clause, but not to the fullest degree he could have:
To say that the Individual Mandate merely imposes a tax is not to interpret the statute but rewrite it…Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Article 1, Section 7, Clause 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they must pay at their next election, which is never more than two years off.
We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H.R. 3962, 111th Congress, 1st Session, 501 (2009); America’s Health Future Act of 2009, S. 1796, 111th Congress, 1st Session, 1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
Scalia, however, failed to take the dissent to the next logical step by arguing that if the individual mandate is a tax, ObamaCare violates the Origination Clause since every substantive element of it originated in the Senate. Perhaps he knew that Justice Roberts was unreachable, having already determined to legislate from the bench. Or perhaps he’s merely waiting for a future plaintiff to make the argument.
Basking in the glow of MSM fixtures such as the New York Times praising his legacy, it’s time for Justice Roberts to brace himself for the coming storm. He sent the Tea Party a message: we anti-constitutionalists will construe the Supreme Law of the Land as we wish, not as it’s written.
We also have a message for President Obama, Justice Roberts, and the array of Democratic political hacks temporarily braying over their pyrrhic victory. The people will throw Obama and the Democrats in Congress out in November.
As for Justice Roberts, we’re stuck with this political opportunist for quite some time. But we can ensure the election of Mitt Romney and make sure that the next Supreme Court nominee is a constitutional conservative. Because it’s quite clear we were deluding ourselves to think we had a 5-4 constitutional conservative court. We don’t. It’s been 4-5 for quite some time. Justice Roberts just let us all know yesterday which side he’s really on.
As I wrote in Covenant of Liberty:
The Tea Party movement arose in 2009 because the political class of the United States--in the form of members of the legislative, executive, and judicial branches of our government--broke four promises found within the Constitution, thereby accelerating the natural tendency to centralize and consolidate power at the expense of individual liberty.
The first promise--to abide by the written words of the Constitution--was broken before the ink was dry on the last documents that sealed the uniquely American secular covenant contained in our Constitution and Bill of Rights. The second promise--to refrain from interfering in private economic matters--was broken when the modern party that routinely pays homage to "free markets" first came to power.
The third promise--to honor the customs, traditions, and principles that make up the ‘fiscal constitution’--was broken by Herbert Hoover and Franklin Delano Roosevelt 143 years after the Constitution was ratified.
Had not the fourth and final promise--that members of the legislative branch would exercise thoughtful deliberation while giving respectful consideration to the views of their constitutents--been broken in such a disdainful and audacious manner in January and February 2009, the grassroots activist who came to be known as the Tea Party movement would never have been compelled to action.
I concluded that though these promises of the Constitution had been broken by a corrupted political class, average citizens have remained faithful to the covenant of the Constitution and the promises contained within it.
The Court’s decision Thursday--as articulated by Chief Justice Roberts--adds a dramatic epilogue to this last broken promise. The judicial branch has now emphatically endorsed the disdainful and audacious disrespect for the Constitution exercised by the legislative branch in 2009 and 2010.
What’s to be done?
There are two specific actions that can be undertaken immediately:
First, within 30 days the Speaker of the House of Representatives should file suit in Federal Court asking the Supreme Court to invalidate Obamacare because the law was passed in violation of the Origination Clause. The Speaker has “standing” in the eyes of the Court because the violation of the Origination Clause that enabled passage of the Patient Protection and Affordable Care Act of 2010 usurped the constitutional authority of the House of Representatives.
Given the 5-4 decision in NFIB v. Sebelius, chances that this litigation will succeed are limited at best. But just as NFIB v. Sebelius delayed the implementation of ObamaCare by two years, Boehner v. Sebelius could delay implementation even further.
Second, all patriotic Americans who are constitutional conservatives need to start now to get out the vote in November. No stone should be left unturned. If you’re not in a local tea party, join one. If you can’t contact a local tea party, start your own. Vote on November 6, 2012, and persuade five friends who may not have voted with us otherwise to choose liberty on that day.
As Princess Leia said in her urgent holographic plea to Obi-Wan Kenobi in the 1977 movie Star Wars: "Help me, Obi-Wan Kenobi, you’re my only hope."
The election of 2012, however, will not be conducted in a military war set in a science fiction movie. It will instead be the defining battle of the most important political war of our generation. Constitutional conservatives around the country are delivering this urgent message now to tea party activists around the country: "Help us, Tea Party, you’re our only hope."
I’m betting tea party activists around the country are up to the challenge.
Michael Patrick Leahy is a Breitbart News contributor, Editor of Broadside Books’ Voices of the Tea Party e-book series, and author of Covenant of Liberty: The Ideological Origins of the Tea Party Movement.