So, as I understand today’s edict, the rulers decided that the particular manner in which healthcare was taken over by the feds was unconstitutional, but that it was totally cool for the feds to take over healthcare in a different way. In the end, the fact the feds had the power was good enough, so they just decided to cut the bullshit and call it cool.
Where have I heard that before?
(Also, I wrote last week that nobody celebrates their own defeats more aggressively than libertarians. I know it’s conceited to think that this article was written as a joke to prove me right, but come on. What am I supposed to think?)
Foseti 
It’s okay to be conceited.
In contrast, did Bill O’Reilly apologize for being stupid?
No one really cares about what laws may validly be passed under “interstate commerce clause” powers. (I always add “interstate” because I like to highlight how clearly absurd the claim it in most contexts).
The only real question is “What is the federal government not allowed to do, besides those things the constitution explicitly says it cannot (or the court-fabricated expansions of those specific prohibitions)?” The answer is “nothing”. And often the court lets the government do those explicitly prohibited things too.
The ruling today means that future congresses will just double-tap every new law. They will claim that the power is granted by the interstate commerce clause, but, just to make sure, enact “penalties” for violation the new law that mimic those of Obamacare, so that it falls under the “Taxing power”. They don’t even have to call them “taxes”, as today’s ruling holds.
Between the overlap of interstate commerce and taxing, there can be no daylight of inviolable liberty peeking through. Today’s decision is a final victory, at long last, for explicitly and overtly omnipotent government. Now can we finally end the cynical charade?
Also, I’m coining the legal neologism “penaltax”, to describe the strange new kind of revenue-fine hybrid the Court conjured into existence today.
The 16th says:
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
Until now, I always thought that meant that Congress can calculate a tax on the basis of income. I suppose SCOTUS is saying that there is an understand “… and without regard to income” somewhere in the 16th, probably right next to the part where it bans states from banning abortion.
(“Paying your tax out of your income” is a worthless concept; what else would you use to pay your taxes?)
With the concept of using income to calculate basic tax liability thrown out, Congress can pass “16th Amendment” penaltaxes on not buying health insurance, as well as on not joining the ruling party, not teaching your children government-approved ideologies, etc.
Can anyone surmise what the effect of the Obamacare penaltax will be on the Amish?
The 16th Amendment was meant as an addition to the taxing powers that Congress already had, to avoid the “uniformity” and “equal direct tax” requirements. That why all the “apportionment”, “census”, “enumeration” language.
Article 1, Section 8, Clause 1:
Now, it is true that taxes not on incomes must still be uniform, but any tax that treats all identical objects or similarly-situated individuals the same is deemed to be so.
The key part of the clause is that “general welfare” language, which has no enforceable limiting principle. What NFIB v. Sebelius teaches us for certain is that if future Congresses combine the taxing and spending power of Clause 1, with the interstate commerce regulation power in Clause 3, and the “necessary and proper” kicker in Clause 18 then they are utterly unlimited in their power over the individual in everything arguably economic in character.
The only limits on Congress, actually, are those “fundamental civil rights” the Court itself chooses from among those explicitly listed, or that it simply fabricates. The Great Progressive Legal Project of 100 years has finally achieved its total victory.
It’s also important to point out that none of the reasoning required plunging into nonsensical interpretations of the Bill of Right, or the Civil War Amendments, etc. – this is straight up Article I power going all the way back to 1789. Not USG 4 or 3, but 2.
Moldbug talks about the “engineering failure” of the Constitutional design, how it had unintended consequences specifically hoped against in the “design notes”. They didn’t want factions – but the arrangement is clearly structurally biased towards a two-party system.
They thought they were creating a government which could only do certain things and nothing else, something that is directly implied by the fact they thought it was necessary to list a short list of specific authorities. But, apparently, they created an omnipotent one in the first two thousand words. Whoops.
I’ve been over those thousand words a thousand times.
I’m inclined to think that if the words had said, “Congress shall not make any law to regulate commerce, and shall not pass any tax other than import duties” the Supreme Court would just redefine unregulated commerce as a foreign enemy, and redefined the White People Surtax as a type of import duty.
Fear not!
This ruling may LOOK bad, but it will undoubtedly mobilize the Conservative Base and mark the beginning of the democratic rollback to the good ole days of the 1950s.
Truly a blessing in disguise.
Unrelated, via Aurini:
http://www.thatsmags.com/shanghai/article/1880/the-dark-enlightenment-part-1
great link, big up
If libertarians didn’t celebrate their defeats, they’d never celebrate anything.
The Conservative base won’t mobilise even if Lucifer were to reveal himself and vote Democrat.
Revolution will start with the expats. Nice link.
This was replying to Frost, sorry.
I hope people realize this isn’t the last surprise from Healthcare. For instance if BHO gets re-elected and the Law stands as it is; when they go to execute in 2014…flop. It will be a version of the Fanny/Freddy debacle at the speed of the Solyndra souffle. Over nearly as soon as it starts…they can’t execute this..the Seniors won’t want to be executed, and the young/poor won’t pay. Why do people think there are so many exceptions/exemptions already?
The Senate hasn’t passed a budget in 3 years. Who are people kidding other than themselves?
So lighten up. they can’t accomplish things in reality.
Tuccille over at Reason had a few sentences on the penaltax that I think would fit in around here:
“No principled opponent of government-dominated health care, you—just another tax dodger. It’s a charge well-removed from the target of defiance, which leaves the principled dissenter flailing at nothing more than smothering red tape.
Brilliant. Really.
You could say that it’s cowardly of modern politicians to hide behind the bureaucracy and refuse to confront their detractors head-on, but these are people more concerned with control than courage.”
The penaltax enforcement can be neatly handed off to the IRS; there isn’t really any way to actively resist the law if a person wants to keep a job, a bank account, or a home with a working doorknob.
linky: http://reason.com/blog/2012/06/28/were-living-in-tuttles-or-is-it-buttles