My Verdict: Obamacare UNCONSTITUTIONAL!

Today’s shocking Obamacare decision caused me to reminisce about my time on the federal bench ten years ago.  When I was a United States Magistrate Judge, I took the same oath of office that every federal judge and justice in the country swears to.  I swore to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same. . .”

That oath is anchored to the phrase, “Constitution of the United States.”  If the Constitution changes over time by an activist majority of the Supreme Court, then my oath was essentially an oath to the Supreme Court, not to the Constitution.  Of course, that’s not what the Founders intended.  The Supreme Court was never designed to be the pinnacle of federal power.

But that’s where we are today.  Chief Justice John Roberts, appointed by President George W. Bush in 2005, wrote the 5-4 opinion saving Obamacare and causing President Obama to declare “victory” and pundits to say that his administration has been “vindicated.”  Incredibly, Roberts determined that the government, under its taxing power, has the right to “impos[e] a tax on those who do not buy [a] product,” in this case, health insurance.*

From the bench today, Justice Kennedy issued a scathing denuciation of Robert’s reconstruction of Obamacare:  “The majority rewrites the statute Congress wrote … What Congress called a penalty, the court calls a tax.”  He concluded, “The law is “invalid in its entirety.”

The chief justice’s rescue of the individual mandate is a massive expansion of federal power, now permitting the federal government to regulate, by taxation, its citizens’ “failure to act” or passivity.  I challenge you to go back to the first 150 years of U.S. jurisprudence and find any Supreme Court opinion that would suggest such a construction of Congress’s power to tax and spend under Article I, Section 8 of the Constitution.

In his powerful dissent, Justice Scalia agreed that this power grab was unconstitutional:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States.

And then the zinger:

Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal  Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

In other words, when the federal government is allowed to tax non-activity, what powers are left to the states and the people under the Ninth and Tenth Amendments?  Not much.

But even more basically, Roberts and the four more liberal members of the bench are all starting with the assumption that the federal government can tax and spend for things outside of its enumerated powers, misconstruing the “general welfare” clause of the Constitution.  James Madison apparently disagreed, suggesting the clause “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section.”

Not anchoring the general welfare clause to the enumerated powers enables virtually unlimited federal spending/taxation power and is completely contrary to the whole nature of the Constitution: a document designed to restrain the federal government, retaining all unspecified powers to the states and people.

The Roberts decision reflects that any faith in the Supreme Court to solve our nation’s problems is misplaced.  We must engage like never before.  Reject the LSM, rely on solid Internet news sources, support a Tea Party congressional candidate, engage in vote integrity efforts, and reflect upon the moral crisis we’re facing.   A massive victory in November will put today’s defeat in the proper dustbin of history.  But unless we rapidly correct the downward spiral, there won’t be much left for future generations.


Author’s note:  To his credit, Chief Justice Roberts did reject the Commerce Clause as constitutional authority for Obamacare.


  • Ronald Marlar

    I agree with Mr. Miller and disagree with the Liberal justices and Chief Justice Roberts.
    The fight is really on now to remove Obama from office, to end his tyrannical, despotic, evil regime by any and all legal means available and to take back the Senate.

  • Barbara J Struble

    Joe, I agree. Dr. Ronald Paul for president. Jesus is still the answer. Peace,

  • Suzanne

    I still don’t understand why Roberts created a NEW argument for them when obama/pelosi swore it was not a tax.

    Will the new taxes include not eating broccoli?

  • combatvet

    Roberts was always a liberal, Bush a closet liberal, knew that when he selected him to the not so Supreme Court. Roberts violated his oath of office, is a criminal and must be removed and tried for treason. How do you go home at night, look in the mirror after selling out your country.

    Roberts is a despicable excuse for a human being! For all time Roberts will be known as a traitor as is Benedict Arnold!

    • Harold Clark

      Truer words have never been spoken.

    • Cincinnati Rick

      Let’s have some perspective please.

  • So the Supreme Court has just told us that the Federal government can do anything, to anyone, at any time, under any circumstance, so long as it does so under the rubric of its taxation authority. Do this thing, or pay a tax. Rather circumvents all the limits on government power doesn’t it? Even if Obamacare is repealed, this precedent will end up being even more damaging.

  • CaptTurbo

    Good job Mr. Miller. Time to rally the Conservatives.

  • Bruce Feher

    A SOLUTION! All private sector business owners and workers should stop what they are doing and apply for government benefits!

  • Harold Clark

    Obama’s goal has always been to destroy America. If the congress had any guts at all they would have impeached at Least, (Gag) Kagan the liar and socialist.

  • Sean Sarto

    “If an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes,” Roberts writes. He adds that this means “the 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 an income.”

    There is no penalty, (higher taxes is a penalty) for NOT buying gasoline..nor is there any constitutional penalty for NOT having a job. Only an intrinsic one. This tax is based on being alive…it defines life as an enumerated “activity” worth taxing…It denominates a peasantry of thought and principle. The Supreme Court can now expect a commanding opposition, the very first time that penalty is applied. It is putting a price on the heads of all the unborn.

    • Sean Sarto

      The constitution is based in principles..Not semantics. This policy is written as a “mandate” which is a legal command….It is also written as a penalty..I have not seen where it is ever written as a tax…Therefore it cannot, in principle, be construed as such. Judge Roberts has engaged in a deplorable act of judicial activism that is a betrayal of the liberties that allowed him such an exalted office. Liberties he seeks now to deprive future generations of.

  • barackalypse now

    Kennedy was supposed to be the swing vote, not Roberts. Kennedy drew accurate conclusions; Roberts betrayed his country and oath of office. There is a special place in hell for John Roberts.

  • siteunseen

    Thank you Joe for your thoughtful and Constitutional perspective of Truth and Justice under God. I believe this is why the Federal Government thinks they can Tax the jibbers out of everyone, because they’ve lost their belief that we are all born with unalienable rights, of which Life, Liberty and the Pursuit of happiness do not exist in their minds eye, but only the rights of the State or the Government, which impede the rights of man. As a Catholic I cannot support an individual Mandate in the form of Obamacare, so I guess I’m going to jail if this thing sticks.

  • Sean Sarto

    If the policy is written as a penalty how can a judge recharacterize that terminology to suit his own political interpretation? That is like a judge altering the charges in a felony prosecution in order to guarantee a conviction based on their personal bias. That is not acceptable for any person in a judicial office.

  • Ed Anderson

    Obamacare was not passed as a Tax measure. How can it be Constituional as a Tax. Government should never have been allowed to present that arguement.

    Bait and Switch Fraud?

  • Cincinnati Rick

    In the best style of John Marshall (Marbury v. Madison) Roberts has given Obama a phyrrhic victory. You have the Commerce clause, the preferred vehicle of the Nanny State, refuted. You have the states freed from the unfunded mandate of the Medicaid expansion. And you have the abomination of the mandate/tax/whatever, the least popular aspect of Obamacare, left on the table as a live issue to rally against Obama this fall. And, in the long view, it is far better to remove Obamaacare by political rather than judicial means. We hated it when the Justices were pulling all sorts of new rights out of their collective arse instead of establishing them democratically. Let’s not stoop to their level!

  • R.Cook

    Dear Mr John Roberts, I do not use Chief Justice Roberts because you have Joined other supreme court activist justices in stretching The original intent of The Constitution beyond recognition. Read the following:

    James Madison warned us.
    “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”

    Here is one of my favorites from James Madison. If only he was around today.
    “I was there and this is what we meant.”

  • BarrySuxx

    I said it before way back in Nov 2008, and I’ll say it again: “Welcome to The USSA.,,, Comrades”.
    (I know, I’m gunna get bashed for that)

    The only way to get OUR country Back is a Massive Voter-removal of DC demoRats who remain seated in power.

  • Red Zone Girl

    I’ve always felt that the most important job of a US President is whom he appoints to the courts. Now we can claim that Obamacare is “George Bush’s fault”.

    • Republican presidents in general seem to appoint justices who end up being huge disappointments.

      The GOP always buys into these ideas that they need to extend an olive branch to the Left by appointing moderate, centrist, even tempered justices. And when the Dems appoint, they pick ideologically reliable culture warriors. The GOP in the Senate obediently confirms them!

      The Republican Party owns so much of this mess from its consistent failure to actually be an opposing force to the Left.

      • Tom Jones

        That is why the teaparty members are so suspicious and distrustful of the GOP in general. It is apparent that we now have three parties.

  • Rod S.

    Seems that Roberts was intent on changing Obamacare into a form he could declare constitutional! First time I have heard of law being written in the Supreme Court. It worked so well for the left that we can surely look forward to much more of this in the future. We must stop this crap!

  • Lizelot

    I’m depressed! It seems that everything Geo W. Bush put his hand to turns out sour. The problem is, we, the people, have to bear the burden of his many mistakes in judgment and it will take years of effort to put things right again. Perish the RINOs, wolves in sheep’s clothing.

  • sara

    The decision opens the floodgates for a bigger, more intrusive, more dangerous government.
    They have expanded our government.
    Kagan had to much influence on Roberts. Kagan is behind Obamas agenda.

  • jerry h

    it’s time stand up to sit on our butts will get us no where and what’s the obamabots going to do when the day dawns and they find out that it was not everybody but them that let this wolf in a mans body in the front door?

  • Bill S.

    We need to wait until after President Romney takes office and then begin the process of impeaching Justice Roberts for, single handedly, destroying our Constitution and handing our Corrupt Government the means to dictate all of our actions OR Inactions! By the way, if we splinter into two voting blocks, Obama will win and declare his mandate for becoming the President for life!

  • DBrooks

    Didn’t we dump a bunch of tea bags in the water when the British tried something similar to this? I suggest us Tea Party members start dumping members of Congress and the Supreme Court into the proverbial bay! I don’t even think the true impact of what the SCOTUS’s ruling on this unConstitutional, radical, empowering bill has even hit us yet. Of course, those who want – er, excuse me – deserve more “free $hit” on the backs of what’s left of the working/middle class are celebrating right now. Obama wants to drag us down to the poor level so he can have complete control over us. True Americans are too independent so he must crush the working people (money/independence). He and his racist administration will determine who gets healthcare. Think there’s reverse discrimination going on now??? Just wait until he’s re-elected!

  • Steve Bang

    Can’t the House simply unfund O-Care? Don’t need the Senate or the Exec. If the R’s refuse to unfund it, they are not serious about repeal.

  • Irving Schmidtlapp

    I cannot think of a better way to drive all of us like minded people together. Together we can elect new people to the White House, and the other two houses.

  • Judy

    I agree! I think, then, that Justice Roberts has violated his Oath of Office. So, how do we go about impeaching him?

  • Judy

    As a matter of fact, Obama has violated his Oath of Office to protect and defend the U.S. Constitution from enemies foreign and domestic, on numerous occasions, as has Atty General Eric Holder, and yes, Pelosi. I say, impeach the lot of them!