The most disturbing thing about today’s decision is not that we lost on the mandate. The majority opinion on the Commerce Clause (the Chief Justice plus the conservative dissenters) was quite good, and vindicated those who mounted an argument as to “inactivity” to the derision of the law professoriate.
What is most disturbing is the judicial activism which took the Chief Justice from the Commerce Clause to the taxing power in order to save the legislation.
It required, as Justice Scalia noted in the dissent, a rewriting of the legislation, and the enactment of a tax via judicial fiat where the legislature knowingly and deliberately had refused to do so.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 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 might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). 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 Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §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. (pp. 24-25, emphasis added)
Rather than defer to the political process, the Court save the proponents of the legislation from their political decisions, and rewarded a corrupted political process whereby legislation was passed only because it was not sold to the public as a tax, yet saved at the Supreme Court because it was a tax.
Yet the Chief Justice clothed such activism in terms of restraint. Restraint would have been to allow the legislature to bear the natural consequences of its political decisions, not to rewrite either history or the legislation.
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