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Take heart, this isn’t the end of the story. As Professor Randy Barnett argues over at Volokh, the “remarkably thin” opinion highlights the flimsy reasoning behind ObamaCare, and the “revolutionary” implications of upholding the law. As many of us have argued, if the Constitution’s Commerce Clause is about anything, it’s about economic activity; whereas ObamaCare’s “individual mandate” is all about regulating inactivity, i.e., the failure of certain people to purchase health insurance.
In just a few perfunctory pages, Judge Steeh dismisses this argument on the theory that the Commerce Clause allows Congress to regulate economic decisions, and not just economic activity. Thus, the decision not to purchase health insurance is ripe for regulation. As Professor Barnett points out, “Judge Steeh offers no limiting principle to the “economic decisions” theory,” and does not even acknowledge the profound implications of government regulation of all “decisions” that might in some way affect economic activity.
But wait, it gets worse! The plaintiffs also argued that the individual mandate’s “tax” (that’s what the administration calls it) is an unconstitutional tax. As I argued right here the other day, the Constitution allows the federal government to impose certain types of taxation, and the individual mandate doesn’t fall into any of them. According to Judge Steeh, those constitutional limitations on taxation apply only to taxation “for the purposes of raising revenue.”
The upshot of Judge Steeh’s decision: (1) the federal government can mandate absolutely anything it wants as a means of regulating “economic decisions,” and (2) the federal government can impose absolutely any tax it likes, provided that it pretends that the purpose of the tax isn’t really to raise revenue but, rather, to encourage certain behavior.
Get me to a Tea Party — quick!