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A week and a day ago, the U.S. Supreme Court released the most notoriously harmful decision it has announced since Lawrence v. Texas in 2003. Like Lawrence, it broke from the clear and plain text of the U.S. Constitution to give federal backing to a biblically immoral practice.
It was somewhat amusing, however, last week to watch all the pundits, news houses, and Facebookers rush to try to be the first to declare the decision of the court — as if they could distill within a few seconds a 193-page decision with three dissents and that took three months to prepare. The result was a lot of inaccurate reporting: “SCOTUS overturns Obamacare” … [Ten minutes later] Oops! Uh, “SCOTUS upholds Obamacare” [Don’t forget to delete that previous headline!] Even a lot of Christian organizations got sucked into this frenzy, forgetting the Scripture that says, “[L]et every man be swift to hear, slow to speak” (James 1:19).
At American Vision we thought it wiser to wait and absorb the full opinions written by the court before issuing our evaluations. American Vision News has pointed to a number of good evaluations via Joel McDurmon, but what was most immediately apparent to us about the decision was the huge lapses in logic employed. Thus we found it more helpful last week to begin by addressing the need for sound reason, the lack of which was one of the foremost culprits in the decision — a culprit with many other crimes that have been long mounting.
The U.S. Supreme Court is usually one of the last institutions in the bell-curve of our culture to be infiltrated with worldview assumptions and practices that have already captured much of the rest of society, and when they do, they usually painfully demonstrate where bad worldview assumptions and practices will take us if brought to their logical conclusion. The decision in this case, National Federation v. Sebelius , is no exception.
Some say that the U.S. Constitution, were it properly Christian, would have incorporated the Bible into its text as a part of “the Supreme Law of the Land” (as if they thought Christendom were a top-down, outside-in Kingdom rather than inside-out, bottom-up one). But would this really have avoided the problems we see in our country today? Would this have helped us avoid a bad court decision like National Federation, which is a misinterpretation and misapplication of the law?
[get_product id=”601″ align=”right” size=”small”]Do we not observe how many diverse and plainly heretical interpretations of the Scripture there are held by people who claim to believe in some kind of authority for the Bible? We need not enumerate all the denominational differences there are between legitimate Christians of different stripes in interpreting the Bible; we need only consider how many cults there are which claim some devotion to the Scriptures and yet twist its text to deny even fundamentals of the faith. Roman Catholicism, Unitarianism, Mormonism, Jehovah Witnesses, Christian Science followers, etc. They all claim to believe in the authority of the Bible in some way, and yet if their followers believe what these cults teach, they will be just as much prisoners of hell as the most stalwart atheist. (See James 2:19.)
Satan himself quoted Scripture into the face of our Lord! So do not be fooled into thinking that merely making the Bible a part of the U.S. Code would have solved these problems. Such a solution is ineffective and, even worse, it is lazy. It is trying to get the law to do what God requires of us and enables by His grace. The real solution is fulfillment of the Great Commission: making disciples.
Yes, some of you have actually studied your Bibles and know that the Great Commission doesn’t merely command us to get people “saved” and then move on to the next lost soul. It commands that we “make disciples” (Matthew 28:19-20), which entails a much more comprehensive activity. It’s the difference between delivering a baby and raising a child. 
Discipleship means training the convert not merely in what to believe but in how to discern truth in Scripture. Training in hermeneutics, logic, biblical philosophy, and integrity as well as doctrine and orthopraxy must be at the forefront of Christian discipleship. They must be familiar with the entire Bible and understand its implications to all of life. Without that, and without the Spirit of God to bless and empower it in the hearts of individual people, we have no hope for a godly nation.  A church that does not do that should not be surprised when its civil leaders issue court decisions lacking in integrity and logic. The civil leaders are a reflection of a epidemic problem among the general populace.
When facing bad news like this court decision, Christians quote II Chronicles 7:14 so often that it has become a cliché. No one talks about exactly what “wicked ways” we’re supposed to be turning from.
[get_product id=”1429″ align=”right” size=”small”]Set aside for a moment the fact that the National Federation decision had nothing to do with any serious and meaningful attempt to interpret and apply the U.S. Constitution according to the original intent of the words the Framers wrote (we address that in greater detail below). To understand the undergirding problem, look to the theological and philosophical assumptions behind it prevalent in our culture. For example, look at the preaching in your average pulpit. Pastors and churchmen don’t take the inspired Word of God seriously anymore. How, then, can we expect non-Christians to apply a sound exegetical grid to interpreting an uninspired, human Constitution? Reformation must begin at the household of God with a renewed devotion to God’s revealed Word, and to discipling the nations in that Word.
Recovery begins with us taking a deep breath and remembering that Jesus Christ is still sovereign Lord over all the world (Matthew 28:18). SCOTUS cannot change that. Once we’ve taken assurance in that encouraging truth, we need to buckle down, take up our cross, and get to business. Be dutiful but not anxious.
There were a lot of secondary and tertiary issues discussed in the 193-page decision in National Federation v. Sebelius that were thankfully relatively sound. For example, the court did not expand the meaning of the Commerce Clause or the “Necessary and Proper” Clause. As those aspects of the decision are not the portions that have led to Obamacare being upheld, I will omit addressing them and focus instead on the controversy surrounding the upholding of the mandate as a tax.
That Chief Justice John Roberts would be the one to cast the deciding vote to uphold Obamacare in such a flimsy way is an incredible surprise in and of itself. If anyone, most would have thought Justice Kennedy (who departed from the Constitution to argue for international law in Lawrence v. Texas) would be the one to depart from the other conservatives on the bench. Other than some of his decisions in the Guantanamo Bay related cases, Chief Justice Roberts has up until now demonstrated himself to be a fairly solid strict constructionist, although perhaps not “an original intent” Justice like Scalia or Thomas.
Chief Justice John Roberts begins his defense of upholding Obamacare as a tax by asserting that when the court is ruling on a statute, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”  The key word is “reasonable” and Roberts manifestly fails his own test.
Here are the Top Ten Reasons Why Chief Justice Roberts got it wrong:
10. Roberts said Obamacare was not a tax before he said it was a tax.
The federal government, like any smart organization, likes to protect its cashflow. Cashflow for civil governments primarily comes from taxes. In order to prevent the flow of this tax cash from halting, Congress passed a law called the Anti-Injunction Act which makes it so that a person has to first pay a new tax before they can bring a lawsuit saying the tax is unconstitutional. Since Obamacare doesn’t go into effect until 2014, it was argued that the Court could not yet rule on the constitutionality of Obamacare until after someone had actually paid the so-called “tax.”
Chief Justice Roberts argued in the first part of his opinion that Obamacare was not tax. If he had concluded otherwise, the Supreme Court would not have been able to issue any decision on the constitutionality of the law. But since he wanted to rule on the constitutionality now, he argued that it was not a tax.
Then a few paragraphs later, he contradicted himself and wrote that Obamacare was a tax. Can you say schizophrenic?
9. Roberts is not allowed to make a “political” decision — as he says himself!
Some have risen to Chief Justice Roberts defense, calling his ruling “an act of great cunning”  or a smart political move  that exposes the Democrats’ hidden tax-increase or something like that.
If Chief Justice Roberts intended to make a shrewd political decision in how he parted from the other conservatives on the bench (Scalia, Alito, and Thomas) to uphold the President’s health care legislation, it does appear at this point to have back-fired. The immediate reaction seems to have been that the focal point of animosity over Obamacare has shifted from Democrat President Obama to Republican-appointed Chief Justice John Roberts. It does not seem to strengthen the case for “choosing the lesser of two evils” in voting for Romney over Obama when one of the few supposedly conservative Justices from the last Republican President cast the deciding vote to uphold President Obama’s biggest socialist claim-to-fame a few months before the presidential election.
Besides all that, however, Justice Roberts stated rather plainly in his own opinion that his decision could not be bent by political considerations. He is oath-bound to support the U.S. Constitution over whatever political objectives he might like to see accomplished as a Republican. As Chief Justice Roberts wrote in his opinion, “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise not the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.” 
So by the Chief Justice’s own words, he did not have the right to make a ruling to obtain a particular political objective — no matter how “cunning” or “shrewd” it may have been.
8. Congress overwhelmingly declared its intent for Obamacare to be a mandate with “a penalty,” not a tax.
One of the earliest lessons I learned in law school was that good lawyers and judges should look to see the intent behind a statute in order to determine how the legislature wanted it enforced. One of the ways a legislative body like Congress reveals its intent is in how it describes the purpose of its statute in the very statute itself. The Obamacare legislation  states that, “[i]f … an applicable individual … fails to meet the requirement of subsection (a) … there is hereby imposed … a penalty.” §5000A(b) (emphasis added).
As Dr. R.J. Rushdoony used to say, a law without sanctions is no law at all.
As the conservative dissenters pointed out in their opinion, Congress made it overwhelmingly clear that the surcharge associated with the mandate was intended to be penalty rather than a tax. “Eighteen times in §5000A [of Obamacare] itself and elsewhere throughout the Act, Congress called the exaction [the taking of money] in §5000A(b) a ‘penalty’ ” 
Obamacare even has two lists of types of people who can get out of the mandate. The first list is a list of exclusions to the mandate, including those who have “religious objections or who participate in a ‘health care sharing ministry,’ §5000A(d)(2).”  Christians who use Samaritan Ministries would be one example of those who fit this exclusion.
Then there is another list of exceptions for people who are included in the mandate. The exceptions include people such as those who can’t afford coverage or who experience a short gap in coverage. If the penalty were really a tax, as Roberts alleges, having two lists — one of exclusions and another of exceptions — would “make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.” 
7. The penalty in Obamacare does not fit the definition of a tax.
At no point in Chief Justice Roberts’ opinion does he give a definition for a tax. In fact, he deliberately avoids doing so, citing a couple other bad decisions where the Court refused to define what a tax is. Without a legal definition for a tax, how does Roberts determine that the penalty is a tax? The closest he comes in providing an objective way to evaluate whether something is a tax is when he writes: “[T]he essential feature of any tax [is] it produces at least some revenue for the Government.”  That’s like saying the essential feature of a cow is that it produces milk. But other things produce milk, such as goats. In civil affairs, fines, fees, and surcharges all produce revenue for the government, but we don’t call them taxes. At least, that’s not how the government sold the idea of these fine, fees, and surcharges to the voters.
What would happen, though, if everyone complied with Obamacare and no one was subject to the penalty? That would mean that the federal government would not be receiving any revenue. So would that make it not a tax? Shouldn’t a tax involve inescapable revenue from the members of the nation?
The dissenting conservative Justices quote from a 1996 case to provide a definition of a tax and a distinguishing definition for a penalty in their opinion. “[A] tax is an enforced contribution to provide for the support of government; a penalty … is an exaction imposed by statute as a punishment for an unlawful act.’ ”  The Obamacare exaction does not appear to fit this definition of a tax because it can be avoided by simply complying with the mandate, but it does fit the definition of a penalty pretty well because it comes into force when a citizen does not do something the federal government wanted him to do. Otherwise, the distinction between a penalty and a tax becomes meaningless.
[get_product id=”1471″ align=”left” size=”small”]Roberts, in his opinion, says that an exaction can be both a tax and a penalty. In the biblical Law, there are many different types of tithes that families were responsible to give to the Lord for different things, but a very few number of taxes enforceable by the civil government. A flat, poll tax is described in Exodus 30:11-16. Other taxes under the Romans Empire, for example, are likewise described as poll taxes. We note that in Matthew 17:24-26 Jesus says that kings of the earth only required “tribute” of strangers or non-citizens living in their nation. This was not a penalty, but a payment for the use of the benefits of the land. There is no evidence in the Bible of a lawful tax ever serving as a penalty.
There is also nothing in Scripture, nor very much in American history, that supports the idea of a tax on inactivity. Great Britain at least imposed a tax on the activity of consuming tea. But Roberts doesn’t see this tax as being all that radical. He writes,
“[T]he mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” (emphasis added) 
Thing? Inactivity is not a “thing.” It is the absence of a thing. It would be like taxing the amount of darkness a person uses, since darkness is not a thing but rather the absence of light. Or it would be like taxing a person’s poverty (the absence of wealth) or taxing hunger (the absence of nourishment). It is that ridiculous.
Through the Commerce Clause the federal government has postured to regulate nearly every activity, and now from this decision the potential is that the federal government may posture to regulate nearly every inactivity. Such an outrageous expanse of power can be nothing else than a wake-up call from God.
6. SCOTUS has never before upheld the levying of a “tax” to support private business.
The penalty in Obamacare is unique in that it operates to finance private businesses as much as it does the federal government. You either pay a private healthcare business to give you healthcare protection, or you pay the federal government what amounts to a fine or surcharge. It’s a choice between Communism and Fascism. Take your pick. As Dr. Gary North observed, this is the first time Fascism has been upheld in our country by the U.S. Supreme Court:
“Economic fascism is the doctrine that there is a government-business alliance that makes the nation wealthy or strong militarily. This idea has never had a judicial basis before. Now it does.
“A tax in America prior to last week was a payment by the citizen or legal entity to an agency of civil government. Not so in the new, improved American fascism, as articulated by Chief Justice Roberts. In fascism, a compulsory payment to a private, profit-seeking entity is considered a tax. You can pay it to an insurance company, or you can pay a fine to the federal government. Take your pick. They are both taxes.” 
Some people incorrectly believe that Communism and Fascism are two extremes in the political spectrum — the extremes of the far left and the far right, respectively. But in Obamacare we see the two married together. This is because both Communism and Fascism are simply statism. They propose replacing the sovereign holy God with the sovereign, fallible state.
5. Roberts’ opinion would allow Congress to break its own rules.
Chief Justice Roberts makes a very convoluted rationalization to try to characterize Obamacare a “tax” for the mandate but not for the Anti-Injunction Act. Essentially, he says that Congress can use current laws that it passes to demonstrate how it wanted previous laws to be followed. He seems to not consider the possibility that a newer Congress may simply have forgotten or not like what a previous Congress legislated and intentionally or accidentally break its own rules. So many Congresspeople cycle in and out with each election every two years that this occurrence is very likely. But Chief Justice Roberts refuses, as a member of the U.S. Supreme Court, to hold Congress accountable to its own rules. He gives Congress a new level of autonomy in this regard.
Roberts thus writes: “It is true that Congress cannot change whether an exaction [taking money] is a tax or a penalty for constitutional purposes simply by describing it as one or the other. … The Anti-Injunction Act and the Affordable Care Act [Obamacare], however, are creatures of Congress’s own creation. How they relate to each other is up to Congress.” 
He thus makes a previous statute subject to Congress’s re-interpretation in a new law rather than making Congress subject to its own rules even for itself.
4. Any “Substantial Effects” vehicle for regulating commerce is unconstitutional.
Justice Clarence Thomas, in addition to joining with the other conservatives and Justice Kennedy in the primary dissent over the tax justification, also wrote his own separate dissent. In his dissent, he perceptively pointed out that the court’s twentieth-century concoction of a “substantial effects” test for allowing the federal government to micro-manage intra-state commerce under the guise of interstate commerce, opened a slippery-slope that has taken us to this notorious decision.
The “substantial effects” test has been used by the U.S. Supreme Court over the second half of the twentieth century in particular to effectively undermine the 10th Amendment of the Constitution, which specifies that the federal government only has powers that are specifically given to it, and all other powers are reserved to the people or the states. At the beginning of his opinion, Chief Justice Roberts paid lip service to the idea of only enumerated powers, but his conclusions serve to undermine that principle.
Although the “substantial effects” test is usually associated with the Commerce Clause, and Chief Justice Roberts agreed with the other conservatives that the Commerce Clause did not apply, Justice Thomas argued that the reasoning behind the “substantial effects” test is still very much behind the notion of the federal government enforcing an individual mandate. Justice Thomas wrote: “The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case” of “inconsisten[cy] with the original understanding of Congress’ powers.” 
3. The Medicaid Expansion in Obamacare is not separable from the mandate.
In responding to Chief Justice Roberts’ rationalization that he must preserve whatever portions of Obamacare are savable, the dissenting Justices say, “But we cannot rewrite the statute to be what it is not.” They argue, “The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Acts’ other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.” 
2. Only the House of Representatives may introduce a money law — not the Senate!
The U.S. Constitution makes it unequivocally clear that all money legislation such as budgets or tax bills must originate in the House of Representatives.  If a money bill does not, it is on its face unconstitutional. Period. However, Obamacare originated in the Senate. “Taxes have never been popular,” write the dissenting conservative Justices, “and it is in part for that reason, the Constitution requires tax increases to originate in the House of Representatives … 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.” 
So even if Chief Justice Roberts had been right in determining that Obamacare was a tax bill, he would have had to hold it unconstitutional for this single fact alone. But he doesn’t even address this embarrassing fact in his opinion at all.
Some have excused Roberts on this point because the Senate “amended” a bill from the House, which actually completely overhauled it, and turned it into Obamacare. Thus, they say, Obamacare was technically proposed by the Senate in a way that meets the letter of the Constitution on this requirement. The facts do not support this. On page 25 of the dissent the conservative Justices point out that the House of Representatives rejected an earlier version of Obamacare that purported to impose a tax instead of a requirement-with-penalty, called H.R. 3962.  H.R. 3590 was originally the “Service Members Home Ownership Tax Act of 2009” and it was first passed out of the House having nothing to do with Obamacare. But then the Senate overhauled it, turning it into the “Patient Protection and Affordable Care Act,” and the House approved that “amendment.” But the House only approved that change with the understanding, that was communicated by legislators again and again, that H.R. 3590 was a regulation bill — not a tax bill.  The version of Obamacare treated as a “tax” had been plainly rejected by the House in H.R. 3962.
James Madison, the father of the Constitution, made it clear in the Federalist Papers that the purpose of the rule that money bills originate in the House was to ensure that the House was the only one that proposed — not merely approved — a government money measure. In this case, Obamacare was clearly proposed by the Senate, not the House. Writes Madison: “[E]qual authority[ ]will subsist between the two houses on all legislative subjects, except the originating of money bills … The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. … This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” 
If the Congress can get around the requirement that money bills start in the House by having the Senate fundamentally alter a House Bill in its chamber,  and if the Judiciary can make a taxing measure something that Congress repeatedly called a regulatory measure, then we should well ask ourselves if we are only following the letter of the Constitution over the spirit (the intent) of the Constitution. Such devices demonstrate an eroding of the purpose behind these separation of powers instructions, and a strict constructionist should know better than to allow such practices.
For this reason the conservative dissenters condemn Chief Justice Roberts of “[i]mposing a tax through judicial legislation [that] inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” 
1. The code section Congress used in Obamacare for the penalty pertains to penalties—not taxes!
The dissenting conservative Justices wrap-up their critical remarks of the majority opinion by pointing out: “[T]he nail on the coffin is that the [Obamacare] mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s ‘Revenue Provisions.’ In sum, ‘the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford  (1830), that Congress imposed a regulatory penalty, not a tax.” 
These conservative Justices do not mince words in condemning Chief Justice Roberts’ position. They conclude: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” 
Those who blindly follow the Republican Party ahead of the Bible and the Constitution will have to ask themselves who they side with: the lone Republican-appointed Chief Justice John Roberts or the other four Republican-appointed conservative Justices who charge him with re-writing law. As the old man says in Fiddler on the Roof, “They can’t both be right.”