Amid all of Chief Justice John Roberts’s
scholastic hairsplitting over whether ObamaCare imposes a tax or a
penalty for failing to buy medical insurance, one passage should
matter most to advocates of liberty:

Those subject to the individual mandate may lawfully forgo
health insurance and pay higher taxes, or buy health insurance and
pay lower taxes. The only thing they may not lawfully do is not
buy health insurance and not pay the resulting tax. [Emphasis
added.]

We thus are “free” either to become customers of a
government-licensed insurance company or to pay a special tax. But
we are not free to opt out of this artificially constructed
“choice” entirely.

There is much of the case against ObamaCare: It denies us the
freedom to opt out. This will be defended as necessary for the
operation of the health insurance market or for some other
conception of the greater good.
But the end does not justify the means. The politicians’ first
resort is force. That makes them different from the rest of us.

All-Embracing Power

With few exceptions (and getting fewer), the Constitution does
not stand in their way. Courts have long held that Congress may do
most anything through its taxing power, even regulating conduct it
may not regulate directly. If anyone has doubts about how
wide-ranging the taxing power is in the courts’ view, I refer her
to
Brushaber v. Union Pacific Railroad, in which the U.S.
Supreme Court upheld the income tax in 1916.

As I pointed out
previously:

Here the Court embraced the broadest possible interpretation of
the federal taxing power—a power that, the Court said, predates the
Sixteenth Amendment. The Court said: “That the authority conferred
upon Congress by [section] 8 of article 1 ‘to lay and collect
taxes, duties, imposts and excises’ is exhaustive and
embraces every conceivable power of taxation has never been
questioned. . . . And it has also never been questioned from
the foundation . . . that there was authority given, as the part
was included in the whole, to lay and collect income taxes. . . .”
The Court went on to acknowledge: “the conceded complete and
all-embracing taxing power”; “the complete and perfect
delegation of the power to tax”; “the complete and
all-embracing authority to tax”; and “the plenary
power [to tax]” (emphasis added).

That was just in one paragraph!

Later in the opinion we find this: “[T]he all-embracing
taxing authority possessed by Congress, including necessarily
therein the power to impose income taxes. . . ” (emphasis
added).

So it would appear that Congress has the constitutional
authority to tax someone who does not buy insurance—Chief Justice
Roberts and four other justices certainly think so. And under the
rules of the game, the Constitution means what a Supreme Court
majority says it means. To say something is constitutional, of
course, is not to say that it is right. People often forget that.
We must beware the dangerous temptation to read our own values into
the Constitution and to assume that anything we think good is in
there somewhere and anything we think is bad is forbidden. It ain’t
necessarily so.

Plausible Dissent

Now it is true that the dissent, apparently written by Justice
Kennedy, makes plausible arguments against the constitutionality of
using the taxing power to get us to buy insurance. But that’s how
laws and constitutions are: The text always has some
Rorschach quality to it. As libertarian legal scholar
Randy Barnett put it, “While I do not share [the] view of law
as radically indeterminate, I sure think it is . . .
underdeterminate . . . .” In other words, human
interpretation is inevitable. There’s no getting around this, no
computer to be programmed to yield perfect decisions. (For more on
this, see my “Where
Is the Constitution.” )

Constitutional though it may be, ObamacCre is an act of
aggression against Americans: Buy insurance (to state-dictated
specifications) or some of your money will be taken from you, by
force—even lethal force—if necessary. (Of course the pre-ObamaCare
system was
riddled with coercion. There was no free market.)

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Jurisprudence