Writing on the Double Yellow Line

Militant moderate, unwilling to concede any longer the terms of debate to the strident ideologues on the fringe. If you are a Democrat or a Republican, you're an ideologue. If you're a "moderate" who votes a nearly straight party-ticket, you're still an ideologue, but you at least have the decency to be ashamed of your ideology. ...and you're lying in the meantime.

Location: Illinois, United States

Sunday, December 30, 2012

Married to Obamacare

Married to Obamacare
– Or –
The President’s Unfortunate Precedent
©2012 Ross Williams

Once again, the Constitution was written for one purpose: to limit the power of the US government. It was not written to justify endlessly expanding their power.

Therefore, all the weasel words and phrases in Article I, Section 8 – e.g., “general welfare”, “necessary and proper” – merely describe the results of the specific authorities listed elsewhere in A I, § 8. When Congress regulates interstate commerce, that in itself constitutes “general welfare”; when Congress taxes mail delivery by the mechanism of stamps, that in itself is “necessary and proper”, etc. Congress is not permitted to define “general welfare” as everyone ought to build home equity and thus pass a law requiring all Americans to buy a house, because Congress is not allowed to define how and under what conditions The People provide shelter for themselves ... if at all.

Congress has no authority to address poverty amelioration, therefore “general welfare” cannot be used to justify Welfare, Food Stamps, Medicaid, and all the rest. Is this clear yet? The Constitution was not designed to be abused, regardless of whether the excuse is seen as good or bad. ...or by whom.

Another of the weasely phrases to be attributed to A I, § 8 is the so-called “tax and spend” clause. These words do not appear as such; Congress is authorized to tax ... Congress is authorized to appropriate money to be spent – the President’s branch of government does the actual spending beyond Congress’s basic in-house administration. But ... okay. It’s close enough.

This cobbled authority has been abused for generations. Congress, which has no authority to create an old-age pension system, created a tax called “Social Security” and appropriated the money collected from that tax to be spent on an old-age pension system. The US Supreme Court, forgetting what its Constitutional obligation is, bought it.

I personally believe that the USSC was simply throwing a bone to FDR, who lost a large portion of his New Deal nonsense in the courts. “Sure,” thought the Hughes Court, “what could it hurt? We killed his Industrial Recovery Act and two-thirds of the rest of the ‘Second New Deal’. Social Security is such a small piece of that – we’ll let it slide this time. Quick! Charlie! What’s a good rationalization for this?”

The answer was: the Congressional authority to tax and appropriate.

So there you have it. If Congress wants to suck up huge wads of power they were never intended to have, all they need to do is build a tax around it. Problem solved.

This was used again later to expand the Social Security Act by adding Medicare to it. Another tax to be appropriated, this time for older American’s health care costs.

This was most recently the justification for allowing Obamacare to stand. The Obama administration made two arguments for its constitutionality; the Roberts Court bought neither of them. The first was that Congress has the authority to define “general welfare” as everybody ought to have health insurance. Nope; didn’t fly, because then Congress could define it to being eat your broccoli, and thereafter button up your jacket, you’ll catch your death of cold; Congress is not our mommy. There’d be no end to what “general welfare” could be made up of. The second argument was that Congress has the authority to regulate interstate commerce, and even though health insurance is not technically inTERstate, the fact that it exists in 50 separate inTRAstates is enough to satisfy the Constitution. Again: no.

The Obama administration argued specifically that Obamacare was notNotNOT a tax, for Obama did not wish to be seen as having created the single largest tax in US history. ...for something that 60% of Americans did not want, no less. But Roberts – personally – threw Obama the same type of bone the Hughes Court threw FDR over Social Security ... except that Roberts first threw out all semblance of US Jurisprudence to do it.

Courts in the US are not allowed to invent the legal arguments being heard before them. If the argument presented by the loyyers is that Obamacare is both “general welfare” and a close-enough approximation to inTERstate commerce to pass muster, and it is NOT a tax, then the courts are not supposed to say, “No, Counselor, your arguments are nonsense. What you really meant to say is that it IS a tax ... and because you made the argument for it being a tax, we’ll let you keep the law.”

Courts in the US are supposed to listen to the arguments made by the loyyers representing both sides and determine which had the better Constitutional argument. The Obama administration had idiotic arguments and still won ... because John Roberts essentially argued the case himself, in front of himself. With four conservative justices only remembering what the Constitution says when liberals’ laws are on trial, and four liberal justices siding with Obama because they are liberal and the Constitution doesn’t apply to liberals’ laws, having Obama’s case before the Supreme Court being argued by the Chief Justice of the Supreme Court, it was a slam-dunk who the Chief Justice would pick as the winner: John Roberts, Chief Justice of the US High Nine. Fait accompli.

Roberts wrote the majority opinion, and it was declared a tax; the largest [so far] in US history.

This predicament has conservatives and Republicans all in a lather, naturally, for Obamacare is a liberal’s and Democrat’s inappropriate power-grab; conservatives and Republicans only like conservatives’ and Republicans’ inappropriate power-grabs.

Libertarians are also peeved about it, because it’s an inappropriate power grab at all; we libertarians don’t want ANYone grabbing political power they aren’t supposed to have.

Liberals and Democrats, naturally, are all acting rather smug about it because political wheels never, ever turn in opposite directions once they’ve gained momentum; for example, Republicans ended slavery over the strenuous objections of Democrats, and this is still seen today by American blacks voting nearly 100% Republican every chance they get, and to the point that Democrat conspiracy theorists cite black precincts with 98% Republican votes as a sign of voter fraud. So it’s impossible to tell an idiot liberal or dense Democrat the consequences of their new law without them responding, in a kindergarten unison, “you lost, we won, it’s here to stay, get used to it”.

Well, not so fast. In the end, no one wins but the worms, unless it’s the ... no, the Mayans just needed to go to the Hallmark store and buy them a second long-count calendar.

At any rate, everyone’s being far too fatalistic about it. It’s almost as bad as the idiot liberals with their hyper-paranoid ramblings on social conservative ideology. “Waah, waah, waah,” they bleat; “the conservatives and their Defense of Marriage Act! They are inhumane!”

More inhumane than consigning the nation to default and foreign occupation in two generations for their instant gratification today? Ah, but I digress.

The Defense of Marriage Act, a social conservative abuse of our Constitution banning the federal recognition of marriages which do not consist of one man and one woman, is every bit as onerous as Obamacare is, and was passed by a decidedly bi-partisan Congress back when Democrats themselves bought into the notion by a 3:1 margin. It will never pass Court muster. It’ll be tossed out on its ear when it hits the High Nine. There’s one overriding reason for that: Congress does not have the authority to define how The People are allowed to create familial structures.

...because Congress neglected to attach it to a tax.

Creating a federal Marriage Tax would alleviate all the Constitutional issues the liberals are currently [and properly] haranguing about. It denies Equal Protection, and it denies Free Association – which many dingbats, some of whom have been on the Supreme Court, call a First Amendment corollary to Free Speech, when it is really a Ninth Amendment/Tenth Amendment deal. Trivially simple.

Once Congress creates a Marriage Tax, then Congress can regulate who can get married to whom – in generalized terms or, as the Obamacare Act showed us, dumbfoundingly specific. If Congress doesn’t want homosexuals to be allowed to have same-sex marriage, then – with a tax – it would be an allowable law considering the precedent set and the multiple times it has been ratified by Court rulings. Without a tax, it would simply be a social conservative maneuver to hoover up more power than Congress was ever allowed to have.

The tax makes all the difference. A tax allows Congress to do things Congress is not allowed to do.
So far, only idiot liberals understand this mechanism. And sadly, it’ll all get much, much worse before it gets any better.

Once social conservatives understand how to finesse their non-constitutional laws past the Supreme Court’s grasping complacency then they will pass a tax on marriage and prohibit same-sex marriage by that means. Then liberals, not to be outdone, will pass a federal tax on guns and bullets and get guns banned that way. Then conservatives, upping the stakes, will create a federal law on sex and the implements used in the course of it or subsequent to it, such as condoms, and lingerie, and birth control, and pregnancy tests, and obstetrics, and “personal lubricant”, and sex toys, and motel rooms, and any automobile with a back seat. Thus can they finally ban abortion, homosexuality, and any consensual copulation more intricate than a straight missionary.

After social conservatives start playing the game according to the rules idiot liberals’ invented on the fly, and I desperately and cynically hope they do, then the idiot liberals will understand what we libertarians have been saying for decades now:

It’s not acceptable for Congress to tax marriage for the purpose of federally regulating the institution ... because the Constitution does not grant Congress the authority to regulate marriage in the first place. Using a tax to come in the back door is not allowed. Similarly, it’s not acceptable for Congress to create a tax to mandate health insurance for all ... because the Constitution does not grant Congress the authority to be involved with health insurance, health care, or medical decision-making in the first place. Using a tax to get around it is cheating.

At this point, one of two things will happen. First, the arrogant courts will allow Congress to tax and subsequently regulate anything and everything, and both the idiot liberals and dour conservatives will swirl the drain of failed liberty together in the mutual death grip they so richly deserve of expansive federal taxation and regulation. Or, second, maybe, just maybe, both the idiot liberals and dour conservatives will realize they’ve both been petty tyrants who don’t understand what it truly means to be a free citizen in a free country, and they’ll help dismantle every selfish, self-righteous abuse of power they ever helped create.

A guy can dream, can’t he?

Libertarians are not above playing both sides against the middle – it’s about our only option. The sides are too much like children to learn these things on their own, and must be led around by the hand.


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