Next Score View the next score

    Opinion | John E. Sununu

    Chief Justice John Roberts put no limits on government power


    JOHN ROBERTS wants you to eat your broccoli. If you don’t, Congress just might tax you; and that’s fine with him.

    For Obamacare supporters, the celebration that carried through the weekend was about policy: providing coverage for tens of millions of uninsured, expanding the Medicaid rolls, and tightly regulating health insurance plans. On the other side, opponents decried the cost and consequence of the same: expensive coverage mandates, fewer choices, and Medicaid spending that few states are prepared to handle.

    But the Supreme Court decision wasn’t about the quality of the legislation — a point plainly stated by the chief justice in the majority opinion’s opening paragraph. Were that the case, the Obama administration would have lost handsomely — seven of the justices had harsh criticism for the law itself. Instead, the ruling’s core addressed a simple, but fundamental constitutional question: How much power should the federal government have to compel an individual’s personal behavior? The court’s answer: lots.


    In reading Roberts’s decision, one gets the impression that the majority views this as a “narrow” reading of the Constitution. The chief justice at least sounded interested in limiting the reach of congressional power. “Many Americans do not eat a balanced diet,” he wrote. “Under the government’s theory Congress could address the diet problem by ordering everyone to buy vegetables.” But, he reassures us, “such a law cannot be sustained under a clause authorizing Congress to ‘regulate commerce.’ ”

    Get Arguable in your inbox:
    Jeff Jacoby on everything from politics to pet peeves to the passions of the day.
    Thank you for signing up! Sign up for more newsletters here

    Good news for all who favor smaller government? Not so fast. Under the administration’s secondary argument, the law “makes going without insurance just another thing the government taxes, like buying gasoline or earning income.” Roberts concludes that the “penalty for not obtaining health insurance may reasonably be characterized as a tax” and therefore “within Congress’s constitutional power.”

    That’s less a limit on government than a roadmap for squelching liberty. By this measure, Congress could demand almost anything as a condition of citizenship, with a penalty imposed for failing to comply. Not sure? Just replace the words “health insurance” with “vegetables” in the paragraph above. Simple, clean, consistent with the court’s ruling, and utterly outrageous.

    Taxing Americans who don’t eat their vegetables may sound ridiculous, but it’s not a far cry from New York City’s very serious proposal to regulate the size of soft drinks. Once the government takes responsibility for paying your health care bills, bureaucrats have the moral ground — and financial models — to justify ever-increasing intervention into what was once called personal behavior.

    Proponents are quick to point out that health care is unique and important. But that’s simply using the ends to justify the means. Under the court’s rationale, the door is wide open. Congress could mandate the purchases of solar panels or electric cars to cover the costs of government loans gone bad.


    Yes, the federal government taxes many activities. But this “penalty” — the term written into the law — is not imposed on activity. To the contrary, it is levied on those who choose to do nothing. It is a burden on independence. In his dissent, Justice Anthony Kennedy observed that “In a few cases, this court has held that a ‘tax’ imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held — never — that a penalty imposed for violation of the law was so trivial as to be in effect a tax.”

    Whether by imposing mandates under the Commerce Clause, or by using taxes to compel behavior, the restriction on an individual’s liberty is one and the same.

    The president wishfully declared the matter resolved. But the court’s decision forms the basis for debates as limitless as the power that the justices so blithely granted the federal government.

    Political partisans worry about the here and now — the costs, rationing, and limits on choice that inevitably result from a bureaucratic undertaking like Obamacare. And we should worry. In the long run, however, we’re all dead — even those of us who eat our vegetables. The most meaningful thing we can leave behind is a constitutional framework that secures the same freedom we enjoyed ourselves. It’s a sad day when we can’t even guarantee our children the right to choose broccoli — or not. Freedom, once relinquished, is awfully hard to regain.

    John E. Sununu, a regular Globe contributor, is a former Republican US senator from New Hampshire.