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Supreme Court Decision Did Not Rule That ObamaCare is Constitutional

Updated on July 24, 2012

Millions Disappointed by the Supreme Court's Affordable Care Act Decision

Like millions of other Americans, I was initially disappointed with the Supreme Court’s Patient Protection and Affordable Care Act, commonly known as ObamaCare, ruling.

I still think that this law is one of the worst pieces of socialist legislation in American history and want to see it repealed as soon as possible.

However, after reading the Supreme Court’s majority opinion written by Chief Justice Roberts, I feel that the June 28, 2012 decision upholding much of the ObamaCare legislation was more of a victory small government conservatives than it was for the President and his far left allies.

Chief Justice John Roberts
Chief Justice John Roberts | Source

A Chief Justice Will Sometimes Change Sides in Order to Influence Writing of Decision

I was initially surprised to learn that Chief Justice Roberts was the fifth vote in this 5 to 4 decision not to declare ObamaCare unconstitutional.

However, then I remembered a remark by a news commentator during the May session when the Court heard arguments for and against the law.

This commentator remarked that in the past, Chief Justices of the Court have sometimes joined the majority even though they disagreed with the majority’s conclusion on the case.

This is because when the Chief Justice is in the majority he is allowed to select who will write the opinion for the Court thereby mitigating the damage somewhat through the wording of the decision.

In this case Chief Justice Roberts joined the four liberal justices to give them a majority and then selected himself to write the Court’s decision.

Defining the Word "Commerce"

I believe that this switching of ideological sides will be seen as a wise tactical move in the long war between those seeking to preserve the limited government principles enshrined in our Constitution and those seeking to transform our nation into a European style social welfare state with an all powerful central government.

As they forced the law through Congress, Democrats in the House and Senate along with their allies in the media insisted that the individual mandate and other sections that appeared unconstitutional could be justified under the Constitution’s commerce clause (which reads: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; and is found in Article I, Section 8).

For most people, the wording of this clause refers to the regulation of trade or movement of goods and services between the U.S. and foreign nations, between states and between the United States and neighboring Indian tribes within our borders.

The Roosevelt Era Case of Wickard vs Filburn

Over the years those favoring big government have stretched the meaning of commerce to the point where it can refer to almost any economic activity progressive politicians want to regulate. The most ridiculous being the 1942 Supreme Court decision known as Wickard vs Filburn.

In this case an Ohio farmer, Roscoe Filburn, was fined $117.11 by the Department of Agriculture for violating the 1938 Agricultural Adjustment Act (AAA) when he grew more wheat than the government allowed.

Filburn refused to pay the fine on the grounds that he had limited his sale of wheat to the amount legally allowed and had kept the rest on his farm where he used it to feed his cows and chickens as well as grinding some into flour for use by his family.

The case went to the Supreme Court, where the court ruled in the government’s favor arguing that had Roscoe Filburn not grown the extra wheat, he would have had to purchase in the market what he needed for his family and farm animals and some of the wheat that he would have purchased could very likely come from another state. Therefore, by growing wheat for his own use he was engaging in interstate commerce and therefore in violation of the law.

Chief Justice Roberts Limits Stretching of Meaning of the Word "Commerce"

In his decision, Chief Justice Roberts cites writings by the founders, eighteenth century dictionary definitions of the word commerce and court cases from Chief Justice John Marshall’s time to the present in his attempts to find a limit to how far the Commerce Clause can be expanded.

This leads him to declare: As expansive as our cases construing the scope of the com-
merce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.”

While not overturning the Filburn decision, Chief Justice Roberts does, in effect, draw a line indicating a limit to the extent which the Commerce Clause can be used to expand Federal power.

In the future, the Commerce Clause can only be used to by Congress as justification for regulating activities that people are actively engaged in and not used to force people to become engaged in an activity.

In other words Congress can, under the Commerce Clause, regulate how health insurance, broccoli or other goods are sold or used but cannot require people to buy or use these goods.

This limiting of the use of the Commerce Clause will be very important long term in the effort to shrink government and keep our freedom.

Penalty vs Tax

As to creating a potential new loophole by defining penalty as called for by the ObamaCare law’s individual mandate as a tax and then upholding the constitutionality of the individual mandate by calling it a tax, that could be a problem in the future.

It should be pointed out that the ruling did not say that Congress had the authority to include the individual mandate in ObamaCare. Instead, the Court ruled out the Commerce Clause as being a basis for allowing the individual mandate on Constitutional grounds.

In writing the Court’s Opinion in the case, the Chief Justice distinguishes between penalties and taxes by first stating:

In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.”

He then goes on to state:

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful.

In addition to this, it is up to the Internal Revenue Service to enforce and collect monies due by people who choose not to purchase insurance.

Based upon the fact that the law does not make it illegal for a person not to purchase health insurance and the fact that the IRS is responsible for the collection of the fee due for not purchasing health insurance, the Chief Justice concludes that Congress intended this to be a tax.

Court Did NOT Rule that the Individual Mandate or ObamaCare Law Was Constitutonal

While somewhat broad and open to interpretation, there are some limits to what types of things can be included under the Congress’s power to tax.

Whether this constitutes rewriting the ObamaCare law by the Chief Justice or not, I cannot say.

However, it doesn’t mean that the individual mandate has passed Constitutional muster because the Court’s majority opinion then concludes that, because the individual mandate is a tax, there are no grounds for the plaintiffs to bring the case before the Court at this time.

This is because the Anti-Injunction Act, which was passed by Congress in 1867, prevents anyone from bringing a case against a Federal tax before they have paid the tax.

Since Congress didn’t schedule the individual mandate to take effect until 2014 (conveniently after the 2012 Presidential election) the Court can’t rule on the individual mandate until after someone refuses to purchase health insurance, pays the tax and then sues.

At this point that person can bring a suit challenging the Constitutionality of the mandate and the government will have to prove that it has the power to enact such a tax.

Throughout the Case the President's Lawyers Called Mandate a Tax

It should also be noted that, despite President Obama and some Democratic members Congress insisting that the individual mandate is not a tax, Chief Justice Roberts is not the first to use the power of Congress to levy taxes as justification for the law.

Immediately following the passage of the legislation, some Democratic members of Congress suddenly became concerned that opponents might be right about the Commerce Clause not being applicable.

I remember news reports of Congressional supporters of the Act making the case that it could also be justified under Congress's power to tax.

Further, while insisting, with a straight face, to the public that the individual mandate was not a tax, President Obama did allow the lawyers for the government to argue in the lower courts and the Supreme Court that if the law couldn’t be justified under the Commerce Clause, it could still pass Constitutional muster under Congress's’ power to levy taxes.

This was Not a Case of Judicial Activism

Despite charges of judicial activism, reading this decision makes it clear that Chief Justice Roberts is anything but a judicial activist.

At the start of the opinion the Chief Justice states:

We do not consider whether the Act embodies sound policies. That judgment is entrusted
to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

In other words, the Court’s job is not to decide whether a law is good or bad policy. Instead its only job in reviewing laws passed by Congress is to determine whether Congress has the power under the Constitution to enact the law.

Congress Must Take Responsibility for its Actions

However, I see two big problems with Justice Roberts’ view that the Court should defer to Congress and try to find ways to interpret a law as meeting the requirements of the Constitution.

The first is the fact in recent years liberal Democrats and their media allies not only often appear to have little interest in the Constitution but during the 111th Congress (Jan. 2009 - Jan 2011) some Democratic members of Congress openly bragged in the press that the Constitutionality of their legislation was the Court’s concern, not theirs.

The other problem is the habit of members of both parties hiding their actions in complex pieces of legislation that run to thousands of pages and then voting without first bothering to read what they are voting on.

How Progressives in Congress Make Laws

The ObamaCare legislation is a perfect example of this as one only has to remember House Speaker Nancy Pelosi in a press conference saying, but we have to pass the bill so you can find out what’s in it. This is the voice of a ruler issuing a command to her subjects, not an elected public servant.

The individual mandate itself is another example of elected officials contempt for the citizens of this nation. During the long fight over passage, critics of the legislation consistently pointed out that the individual mandate was a tax.

But the President and his supporters in Congress repeatedly denied that it was a tax. To this day, even after instructing his Solicitor General to argue before the Court that the mandate was a tax and the Court accepting that argument, President Obama continues to insist it is not a tax.

It is Up to the People to Take Responsibility

However, Chief Justice Roberts, in the Court’s Decision, makes it very clear where, under the Constitution, ultimate responsibility lies here, stating:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor 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 (emphasis is mine). It is not our job to protect the people from the consequences of their political choices.

Unlike modern progressives in politics and the media who believe that the people of this nation are incapable of managing their lives and therefore need the benevolent guidance of the political class in Washington, our Founding Fathers believed that we were a free people capable of making our own decisions and ruling ourselves.

While President Obama Had his Lawyers Argue in Court the Mandate was a Tax - He Told the Public it Wasn't


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    • Chuck profile imageAUTHOR

      Chuck Nugent 

      6 years ago from Tucson, Arizona

      I think that the Obamacare law allows people to purchase different health insurance. But between the regulations that will limit what policies people can purchase and what companies can sell insurance along with monopoly tactics on the part of the bureaucracy which will seek to dominate the market we will probably have little or no choice once the program gets underway. Also, the experience of other nations with socialized medicine is that the demand for healthcare increases dramatically while the supply of healthcare decreases as cost controls and increasing regulation causes doctors and other healthcare workers exit the profession.

    • jose7polanco profile image

      Jose Misael Polanco 

      6 years ago from Los Angeles

      You are more than right, having access to medical care i way different to having to have obama care. Are we allowed to purchase a differente health insurance?

    • profile image 

      6 years ago from upstate, NY

      My understanding of this case was that Congress did not present the individual mandate as a tax but instead as a penalty, therefore the court would have to rewrite the legislation in order rule on it as a tax. If the court rewrites legislation aren't they making policy.

      You do make a compelling case I'll have to read Roberts statements as you have! I also agree with you that the courts are limited in thier protection of the Constitution, the poeple themselves are the true guardians of the Constitution and need to elect representatives who'll uphold it!

    • Chuck profile imageAUTHOR

      Chuck Nugent 

      6 years ago from Tucson, Arizona

      jose7polanco - I agree that criminalizing not having medical insurance is going too far. The other big problem I have with ObamaCare, besides its huge cost and addition to our nation's deficit, is the fact that no one seems to be concerned about the fact that having insurance and access to medical care are not necessarily the same.

      The government backed medical cartel that limits the number of personnel and facilities in the medical field remains intact keeping the available supply of medical services limited. Giving everyone medical insurance simply increases the demand without increasing supply which means less for everyone.

      Increasing demand while holding supply constant is the model nations with socialized medicine do and this just results in long waits for medical care and rationing of the service. So purchasing the mandatory Obamacare insurance merely protects one from being prosecuted for disobeying the law and does little to make healthcare available.

    • jose7polanco profile image

      Jose Misael Polanco 

      6 years ago from Los Angeles

      writing a law to regulate public health care is reasonable it could stop deseases, charging a small tax for not having said insurance sounds not so bad, requiring under conditions that not having insurance is a crime is way too extreme. I wonder when obama will be considered unconstitutional he is way too much liberal. I myself have no health insurance and i pay when i go to the doctor with my cash. Telling me to take insurance sounds good, having the sheriff arresting me for not having insurance could be the next step in the obama care plan.

      Great hub, good points those you make.

    • Chuck profile imageAUTHOR

      Chuck Nugent 

      6 years ago from Tucson, Arizona

      Nick Hanlon - thanks for visiting and for catching my two spelling errors. They have been corrected. Thanks again.

    • Nick Hanlon profile image

      Nick Hanlon 

      6 years ago from Chiang Mai

      One of the capsule titles has 2 spelling errors.Apart from that this article is actually read the decision before commentating on it which is unique.

    • PDXBuys profile image


      7 years ago from Oregon

      I am concerned that, over time, our Constitution has become somewhat like the Bible - every one who reads it has a different interpretation. That spells chaos for a nation. In theory we are all supposed to live under the same laws, not a million different interpretations of the law.

    • Chuck profile imageAUTHOR

      Chuck Nugent 

      7 years ago from Tucson, Arizona

      ib radmasters - Article III of the Constitution, which defines the Judiciary branch of government, is very short (just 3 Sections) and says very little about how the court is top operate. I suspect that many of the procedures under which the Court operates were laid out by Chief Justice John Marshall who served for 34 years and was known for a lot of forceful opinions. He probably saw a vacuum and moved in to fill it.

    • ib radmasters profile image

      ib radmasters 

      7 years ago from Southern California


      You are absolutely correct.

      My point was that the legislature put some feet on the ambiguous and vague Article III provisions.

      Marbury v Madison was the first challenge and test.

      I couldn't find where the Supreme Court was able to decide cases on a simple majority.

      do you have any info.


    • Chuck profile imageAUTHOR

      Chuck Nugent 

      7 years ago from Tucson, Arizona

      ib radmasters - thanks for your comments. One thing though, the legislature (Congress) didn't give the Supreme Court the power to determine the Constitutionality of a law or to declare a law or portion of it unconstitutional. The basis of that power came from Chief Justice John Marshall in his 1803 Marbury vs Madison in which the court determined that it had the power under Article III of the Constitution. The Court exercised the power of declaring a provision in the Judiciary Act of 1789 to be unconstitutional. Since that time the Court has used this power to declare some laws or some provisions in laws as unconstitutional and, in the process, has come to be recognized as having the power to decide on the constitutionality of a law when a citizen or government department challenges a law in the courts and the case makes its way to the Supreme Court.

      Thanks again for your comments.

    • Chuck profile imageAUTHOR

      Chuck Nugent 

      7 years ago from Tucson, Arizona

      Rob GQ - thanks for pointing out the aspect of Chief Justice Roberts speaking as dictum and for defining Dictum.

    • sandrabusby profile image

      Sandra Busby 

      7 years ago from Tuscaloosa, Alabama, USA

      Thanks for taking the time to write this hub. I read every word of it and I feel that I now have some tiny bit of understanding of this decision by the Supreme Court. Otherwise, I have ignored all the reports in the press.

    • Larry Fields profile image

      Larry Fields 

      7 years ago from Northern California

      Chuck, you've written an outstanding article. I didn't have the patience to put on my hip waders, and slog through the Legalese in the original text. My impression from the infotainment media is that the Supremes had essentially rubber-stamped Obamacare. But as you point out, it's not quite that simple. Rated up, shared, and more.

    • PDXBuys profile image


      7 years ago from Oregon

      Well written. I, too, have heard the argument that this cannot really be challenged until 2014 when some poor soul will be the first American to be hit with the new penalty/tax. At that point, perhaps it can be challenged again as unconstitutional.

    • Conservative Lady profile image


      7 years ago from Surprise Arizona - formerly resided in Washington State

      Our best hope for doing away with Obama Care is Voting in a Republican majority come November. Well written Hub. Voted Up and Useful/Interesting

    • Rob GQ profile image

      Rob GQ 

      7 years ago from Florida

      I agree that Justice Roberts asked the American people to bear the responsibility of getting rid of this piece of garbage law through this year's elections. However, he spoke as dictum when he "protected" the commerce clause, meaning no precedent for future votes by SCOTUS. Dictum means unofficially speaking with no bearing on future rulings.

    • ib radmasters profile image

      ib radmasters 

      7 years ago from Southern California

      Very well done and detailed hub on the issue.

      Nevertheless, my opinion is that 5-4 decisions of the SC are clearly bad decisions. I have tried to research how the majority decision came to be, but I have been unsuccessful.

      Ironically, the power of the Supreme Court was given by the legislature, and it was totally different than it is today.

      Judiciary acts have changed the initial SC closer to what it is today at 9 justices. FDR wanted to stack the SC when his new deal wasn't doing well. He wanted to add 6 more justices to make the total 15. He tried to justify it by saying it would help the burden of the SC. It would have also included 44 more justices for the lower courts.

      In any case, I think that we need a constitutional amendment to change the SC verdicts to at least 6-3 or better yet 7-2. This would more closely resemble the hurdle that a constitutional amendment goes through to be submitted and then ratified. To submit an amendment, there has to be 2/3 vote in each state, and 3/4 of the states to ratify.

      5-4 decisions of the SC are just bad decisions, but they become the law of the land.

      BTW, Article III of the constitution is the source for the judiciary power but it is as vague and ambiguous as Genesis is about the creation of the universe.

    • dahoglund profile image

      Don A. Hoglund 

      7 years ago from Wisconsin Rapids

      You are right about it being up to us, the people. I have often referred to Lincoln's saying about fooling "some of the people..." and have tried to remember it when things look bad. I am finding it harder to keep faith in the people in recent years. I do hope that it proves true that they can't fool all of us now.

    • internpete profile image

      Peter V 

      7 years ago from At the Beach in Florida

      Well written and very interesting. Thanks for clarifying this information. Sometimes I wish we could get decent info from the news and media, but that just doesn't happen anymore. Voted up, because this is good!


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