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July 6th, 2012


By Nathan Tucker

The long, slow death of federalism is nearly complete.  While perhaps an enthusiasm boost for the GOP heading into the November election, the Supreme Court’s Obamacare decision is yet another nail in the coffin of a federal government of limited, enumerated powers.  Since the Constitution has become all but a dead letter, it is time to empower the States against an unrestrained centralized government.

While a majority of the Court held that the Constitution’s Commerce Clause did not authorize the individual mandate for individuals not currently in a commercial market, only Justice Thomas was willing to overturn any of the Court’s existing caselaw that gives Congress extensive powers never imagined by the Founding Generation.

As Obamacare’s opponents conceded at oral argument, Congress could, under Supreme Court precedent, “say [that], if you’re going to consume health services, you have to pay by way of insurance.”  Rather than disturb this precedent, a majority of the Court simply refused to say that Congress could force you to purchase health insurance before entering the market instead of at the point of needing health care.

In essence, eight justices on the Supreme Court believe that Congress can impose all the mandates it wants on those already in commerce.  For instance, Congress could mandate that home buyers buy mortgage insurance, or that existing car owners install antipollution devices, or that purchasers of new home windows buy energy efficient models.  And Congress doesn’t even have to call these fines taxes, because they are economic mandates under the Commerce Clause.

Congress does, however, have to call a mandate it places on individuals not participating in a particular market a tax.  Congress can tax individuals to “encourage” them into doing whatever it wants, irrespective of any conceivable connection to one of its enumerated powers, so long as the tax does not become coercive.  Though declining to specify when a tax becomes unconstitutionally punitive, the Court assures us that the “power to tax is not the power to destroy while this Court sits.”

Noticeably, the Chief Justice was unable to explain how the mandate was not unduly punitive under Congress’ taxing power while at the same time so punitive that it “compels” individuals into the market in violation of the Commerce Clause.  Whatever the distinction, the practical effect is that Congress can do nearly whatever it pleases, either under its commerce power or its taxing power.

Some have suggested that it will be politically prohibitive for Congress to pass such mandates in the future if it has to acknowledge that they are, in fact, taxes.  Though it is true that Obamacare would not have passed as a tax, it is entirely plausible that a less ambitious bill stripped of everything but the mandate to pay for coverage of preexisting conditions would have.  Majorities have few quibbles with taxing the minority to get something “free.”

Since the Court has refused to impose any real limits on federal authority, some have argued that the states should nullify Obamacare.  Already two states, Ohio and Missouri, have passed state constitutional amendments nullifying the individual mandate, and approximately a dozen other states are considering joining North Dakota in doing so by simple legislation.

Unfortunately, nullification is based on an unsupported theory that the federal government is the creation of the states rather than We the People.  In addition to the lack of historical or constitutional reality, such a theory misstates the nature of government.

As individual sovereigns, We the People initially delegated a portion of our sovereignty to the states for the mutual protection of our unalienable rights before the creation of the federal government.  Consequently, only We the People could re-delegate some of that sovereignty from the states and give it to the federal government.

Because the states were without permission from We the People to re-delegate such powers, they were incapable of creating the federal government.   Only We the People could, and did so at that state ratifying conventions.  In doing so, however, we made no provision in the new constitution that would allow the states to nullify these re-delegated powers.

But We the People, as ultimate sovereigns who remain the judges of when the “consent of the governed” has been breached, can exercise our unalienable right of nullification at the state level, either by piece-meal constitutional amendments as the need arises (mandates, immigration, Roe, etc.), or by a constitutional amendment generally delegating such nullifying authority to the legislature.

Perhaps it is time to act as individual sovereigns again.


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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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