CHIEF JUSTICE ROBERTS OR DAVY CROCKETT??
by jtx, ©2012
(Jul. 12, 2012) — A few years ago, the actor Fess Parker introduced Davy Crockett to the public through the entertainment industry. Many people still remember “The King of the Wild Frontier,” as he was called. Many years before that, the real Davy Crockett served as a member of Congress and used a lot of colorful language in the process.
In the 1880s there appeared a dime novel called Sockdolager! A Tale of Davy Crockett, in which the Old Tennessee Bear Hunter Meets Up With the Constitution of the United States, a tract against government spending, which the state of Virginia found useful to reprint, at taxpayer’s expense, when Kennedy assumed the Presidency in 1961. It relates a tale in which Crockett was upbraided by one of his constituents for adding his name to a list of others intending to vote for a bill spending government money aiding Georgetown residents in recovery from the destruction of a large fire that had recently occurred.
The voter told Crockett that while he had voted for him before and admired him greatly, he would not vote for him again. The backwoods congressman identified this refusal to vote for him as a “sockdolager(1).” Crockett inquired as to the reason and the voter cited the congressman’s stated intention of voting to give government funds to sufferers of the Georgetown fire. He further lectured the congressman on such action not being allowed in the Constitution which the voter much valued. The upshot was that Crockett rose on the House floor later to speak on what was thought to be a very popular bill to appropriate money for the widow of a distinguished naval officer. Instead of supporting the measure (which most expected), he argued against it on a Constitutional basis, as the money was not for a government debt. Crockett then pledged to give a week’s pay of his own money to the lady and if the other members would do the same she would receive much more than the amount in the appropriation. The measure then failed to pass.
If the tale is true, Crockett apparently hadn’t thought of the money as belonging to the people but in the first case, was just trying to help the residents recover from the economic calamity. The voter brought him up short with the Constitutional impediment. The new grotesquely-named Affordable Care Act (aka The Jackalope Law in a July 4, 2012 editorial in The Post & Email online newspaper, q.v. by registering as a Level 0 Free Access here: http://www.thepostemail.com/) was recently ruled by SCOTUS to be legal in one of the oddest rulings ever for a bill that has been unconstitutional from the get-go.
Where is it in the Constitution that the government is allowed to require citizens to have and maintain “minimum essential” health insurance, let alone any health insurance at all? As a corollary, where does the Constitution specify that the government is required to take care of the health needs of any citizens, let alone all of them?
After all, “general welfare” is different than “individual welfare,” and it is individual welfare that is specifically intended in the “individual mandate.” Where is the Constitutional clause that asserts the government may “provide for the individual welfare?” Any such interpretation of the General Welfare Clause is merely a misinterpretation and NOT what the clause delineates. If “individual welfare of all citizens” or wording of similar specificity were substituted, replacing the wording “general welfare of the United States,” that would be one thing, but that is not how the clause calls out the requirement. It instead speaks in broad terms of the States in general and of their welfare in general. To read specificity into the “general welfare of the United States” to make it mean “individual welfare of each citizen” would make it something akin to the ten planks of the Communist Manifesto, and that is not what we have in the United States Constitution (or at least what we have had for 236 years, until fairly recently). Even Davy Crockett was brought up short to realize that in a similar circumstance.
Giving federal money to States under the guise of the General Welfare clause is one thing (now probably ruled unconstitutional), pretending that it allows controlling and directing the choices of individual citizens with such specificity as determining their level of healthcare and how it is obtained, is FAR more than “general welfare.” For one thing, such a requirement completely bypasses the States and any part they might play in an “individual mandate” and controls the individual citizen directly. That sort of direct manipulation of the exclusion of States by the Federal government has long been frowned upon under Constitutional interpretation.
Even then, handing federal money to States, regardless of the strings attached, is not the same thing in principle as attempting to control and direct individual citizens to coerce, by one means or another, a result the government desires to see; universal health insurance coverage of a specific sort. Nor does the Constitution foresee any direction by Congress under the General Welfare (or any other) Clause of the sort of flyspeck control of individual lives that a concept such as the “individual mandate” institutes. Describing it as “optional” or “a tax” or “not a penalty” is idiocy in the extreme, since dealing with the IRS to collect and pay “taxes” of this – or any other sort – is itself an effort to directly control the affairs of each individual citizen.
Technically this interaction with the IRS may not be considered “criminal” at first, but that merely means the lawmakers have not had the occasion to be treated to the gentle loving-kindness of the IRS. Its hugely wasteful dealings with individuals means, of course, it is the individuals who suffer (at least) economic and functional deprivation due to the squandered personal resources – an unfunded mandate by the government – while the IRS itself is using tax dollars furnished by the citizen. A governmental agency such as the IRS (with a $15 billion budget) promulgates its own regulations which have the force of law and can be easily altered in scope as time goes on. If not criminal now, you can bet that it will not remain so as time progresses.
Over and above all that, the General Welfare is, if anything, destroyed or made hugely worse by the Jackalope Law, since in only a couple of years a 15-person board (Independent Medicare Advisory Board in Public Law 111-148) picked exclusively by the President kick-starts and is reviewed or answerable to no one else and its unreviewed edicts become law not challengeable in court. Perhaps the court might explain how such a power falls under the language of the Constitution or promotes the General Welfare, as it CLEARLY controls each individual’s welfare with no recourse. This seemed to be overlooked in the recent SCOTUS decision, yet it is part of the Jackalope Law because it is “a bit of this and a bit of that” but neither fish nor fowl. The Jackalope Law is a quite fitting appellation for such a law.
Another egregious flaw in the majority opinion written by Chief Justice Roberts is that any number of the citations he lists interspersed throughout, presumably to demonstrate the point at hand, do nothing of the sort and some are grossly off-topic. For example, he cites New York v US when discussing taxing those who go without insurance and the case is quite different relating to taxing under the Commerce Clause, which this opinion cites as invalid in the instant case. Another is the Bailey v Drexel Furniture, a decision written by Chief Justice W. H. Taft (after his Presidency gave us the political compromise that became the 16th Amendment and the tax in Drexel was ruled unconstitutional as being a punishment. One would expect to see justification for the level of payment being “not too high,” a judgement call by justices earning well up into the six-figure income range (if not higher). How are those with incomes such as that qualified to make a financial judgement on most of us that “x$” are not “too high?” The comment was, “The payment is not so high that there is really no choice but to buy health insurance.” How comforting to know that SCOTUS knows the individual financial climate of every citizen and can make that determination. One would think they are in the Legislative Branch!!
Then, too, the entire majority opinion reeks of weasel wording in many spots; e.g., saying the “mandate need not be read to declare that failing to do so is unlawful.” That also means that a reading of the clause might make just the opposite definition. And the real clunker: “An analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax,” yet no analysis is given or even referenced, not even an off-point citation. I would also suppose that yet another “analysis” could also suggest that it could be considered, for example, a penalty (which it was before SCOTUS got their mitts on the Jackalope Law).
Further in the majority opinion it states the “tax” is “not a recognized direct tax” (does that imply it us an unrecognized one – NO – in fact it is more like a capitation tax than any other type). It cites a capitation tax as justification for a citizen not avoiding taxes through inaction (yet it ignores that this is implicit in what is taxed – the existence of the individual – while in the Jackalope Law it is not that individual that is taxed but his not having a specific mandated health insurance, which is quite a different thing.) The requirement as a tax, however, is indeed new, as it is a tax on failure to have something the government decides is necessary for you to have: a thing that is not merely an optional inducement despite being called something akin to that since an inducement would be, perhaps, an income tax credit for buying and this is a penalty for not doing so and in no respect an inducement. Clearly, it is a penalty as the bill said when drafted.
Stating repeatedly that such a “tax” as the Jackalope Tax “passes muster” (per these five justices) doesn’t offer any great confidence, since that is merely more evasive wording. The five persons talk about bringing the full weight of the government to bear under the Commerce Clause as though for the Jackalope Tax the IRS is some sort of jovial social club. Obviously these five have no hands-on personal experience with that body, or if they do, they were shown some extraordinary “professional courtesy” that most citizens do not receive. Their belief that by having a “choice” to buy the specified insurance or pay a tax does not automatically make you a criminal means that perhaps the five should begin to live in the real world and see what transpires when they thumb their nose at the IRS … and those ever-eager bureaucrats have plenty of loopholes to make any taxpayer rue the day for fobbing off the taxes to the IRS. That includes criminal penalties as well as severe financial fines, interest, and their own penalties, including seizure of property. If they do not have them now in the IRS Regulations, they soon will. Not wishing to buy into the healthcare IS a violation of the law and triggers extra expense at least. That is, at best, a Hobson’s Choice.
They still do not define whether the Jackalope Tax is a direct or an indirect tax; in fact, the opinion goes to great lengths to NOT state which it might be and to confuse the issue with many questionable citations and considerable folderol. And that is because it is neither type but is an entire new category of tax, one never before seem in our 236-year history. It is called the Jackalope Tax for that reason and might be considered a “non-directed” tax, neither direct nor indirect. It is important to note that no third tax type such as this “non-directed” tax is allowed in the Constitution despite pretense to the contrary. It is a tax for not behaving as Congress mandates – a tax for “misbehavior,” perhaps.
The truly queer thing, though, is how these five justices seem quite willing to declare the Jackalope Law (and its corresponding non-directed tax) as Constitutional while completely ignoring the destruction of much of the Constitution caused not only by the tax itself but by the Independent Medicare Advisory Board (IMAB) – Public Law 111-148, Section 3403, created and controlled by the Executive branch and not reviewable by Legislative or Judicial branches. Are we to believe that all five of these learned barristers read about the IMAB in the Jackalope Law and what it can do and never once wondered if it might not be a tad – just a tad, mind you – unconstitutional since it also offers a means of bypassing the Enumerated Powers in the Constitution and other parts of it as well, or perhaps they knew that and are just holding their judicial breath hoping that no one else will notice??
They also have apparently chosen to ignore the golden opportunity afforded to those who wish to avoid the Constitutional contract with the citizens by offering a mandated behavior and call for a “tax” if not followed. This is unprecedented in 236 years to have Congress declare something a tax, pass it into law, and thereby completely avoid the Constitution to egregiously control the citizens, all without a single Constitutional Amendment being proposed or ratified. The opinion has just deleted the Enumerated Powers clause a second time, and in the process, given Congress a tool not in the Constitution: the ability to declare a punitive legislative penalty as a “tax” and then pass the enforcement to the IRS. If this precedent is allowed to stand, you can certainly believe that stare decisis will rule forever in doing almost any sort of monstrosity that can be passed through Congress that can then be claimed to have a “tax” owed if not followed as required. Alterations and variations of the Jackalope Law will breed like rabbits and will be used for previously undreamed-of purposes much more easily than the bad old Commerce Clause.
In Pollock there is the interesting point that “…whether a tax be direct or indirect is to be tested by ascertaining whether it is capable of being shifted from the one who immediately pays it to an ultimate consumer. If it cannot be so shifted, it is direct; if it can be, it is indirect. “ Further on, the same citation says “ … It follows, it seems to me, that the conclusion now announced rests neither upon the economic sense of the word “direct” or the constitutional significance of that term. But it must rest upon one or the other to be sustained. Resting on neither, it has, to my mind, no foundation in reason whatever,” which is an apt description of the Jackalope Tax. The words “indirect tax” do not appear in the Constitution. To top that off, the Jackalope Tax bill originated in the Senate rather than the House as Constitutionally required. Clearly, it is not an income tax under the 16th Amendment.
One wonders, given the Jackalope Law, if the present income tax should be voided by Constitutional Amendment by the very popular FairTax (or other) change in tax laws? That would decapitate the Jackalope Law after all. Perhaps that was one of the reasons the political persons are trying so desperately to embed the IRS and its Income Tax into the law: to make it more difficult to uproot. Later on, I’ll post an article written in the 1940s by the man who devised FDR’s “pay as you go” income tax withholding scheme which is quite illuminating.
Let’s see…we have a majority of five, one who should have recused herself since she worked actively with the Democrats to write this monstrosity and push it through Congress. There is another who actively despises the Constitution and has publicly stated her contempt for it in other countries, advising them to form their own constitution and not to begin with the U.S. Constitution, as it is antiquated and ineffectual. I’m sorry ,but those things sound to me like judicial mis-, mal-, or non-feasance and should be dealt with. In fact, one wonders why the Chief Justice did not do so?
So is this a “sockdolager” – and by whom?? It is even more so than the one Davy Crockett suggested, and the direction is reversed, as it affects over 300 million citizens. This particular sockdolager is from Chief Justice John Roberts and the other four Justices signing on to the majority opinion, but it is directed at the American people, not at a congressman or two. It is clear that Chief Justice Roberts is the “King of the Sockdolagers” in this tale since he wrote the opinion that has declared the Jackalope Law to be Constitutional – AND IT IS NOT!!
Footnotes:
/1/ Sockdolager – a hard hit, a knockout or finishing blow. Something exceptional; the term for anything which left nothing else to follow; a decisive, overwhelming finish, to which no reply was possible. Today the word is infrequently used.
Quite likely the first use of the term was in the 1830s New York hit play The Lion of the West, which featured the Crockett-based Nimrod Wildfire, who brags about the deadly effect of his rifle:
“He’ll come off as badly as a feller I once hit a sledge hammer lick over the head—a real sogdolloger[sic]. He disappeared altogether; all they could ever find of him was a little grease spot in one corner”.
In 1884, Mark Twain used the term in, Adventures of Huckleberry Finn when Huck said:
“The thunder would go rumbling and grumbling away, and quit—and then rip comes another flash and another sockdologer.
Interestingly, today there is a “Sockdologer Rapids” in the Grand Canyon well-known to river rafters.