As the major costs of ObamaCare loom over America, here’s a history quiz: Who’s most responsible for instituting ObamaCare?
(a) President Barack Obama
(b) President George W. Bush
(c) Chief Justice John Roberts
(d) President Franklin Roosevelt
The answer is (d) President Franklin Roosevelt.
Roosevelt’s responsibility for ObamaCare is not limited to the big-government mentality that he fostered as president. His responsibility originates from a bill he advocated 76 years ago that failed in Congress but nevertheless helped change history. But before I examine Roosevelt’s responsibility, here’s why the other three choices are wrong.
Obama is the obvious choice, but he was merely a big-picture player. He didn’t concern himself with the details of ObamaCare, and then-House Speaker Nancy Pelosi and others led the public debate about ObamaCare. Also, in spring 2012 Obama stayed on the sidelines while the Supreme Court decided ObamaCare’s constitutionality.
Bush has some responsibility with his failure to vet Roberts thoroughly before nominating him to head the Supreme Court. For instance, Bush didn’t discover that Roberts would approve such a massive federal violation of liberty and state jurisdiction as ObamaCare. Nevertheless, Bush was reasonable to expect that Roberts, a former Federalist Society member, would preserve federalism and reject such unconstitutional laws as ObamaCare.
As the Chief Justice of the Supreme Court, Roberts upheld ObamaCare with a long and nonsensical decision. Thus, he certainly has much responsibility for instituting ObamaCare. Per year, ObamaCare’s individual mandate “taxes” individuals $695 and families $2,085 for not purchasing health insurance. According to Roberts, even though Congress has no enumerated power to regulate health insurance as with the individual mandate, the individual mandate is constitutional because Congress can “lay and collect taxes.”
However, despite these arguments for Obama, Bush, and Roberts having responsibility for ObamaCare, Roosevelt has the most responsibility because of the judicial mess he created as president. In the mid-1930s, Roosevelt faced a Supreme Court that was overturning key parts of his New Deal and other “progressive” laws. A Supreme Court decision that irked Roosevelt was a 1936 case called United States v. Butler. Butler struck down a regulatory “tax” in the Agricultural Adjustment Act (AAA) that taxed agricultural production, such as cotton production, to raise the prices of agricultural goods. The court ruled that Congress has no power to regulate agricultural production or tax for that purpose. After all, Congress has only a few enumerated powers, such as the powers to regulate interstate commerce and provide a navy. With a rationale that Roberts should have applied to ObamaCare, the Supreme Court declared the following (emphasis added):
[AAA] is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax…[is a ] means to an unconstitutional end. . . [R]esort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.
Roosevelt decided that, if he couldn’t beat the Supreme Court, he would change it by cramming it with favorable justices. In early 1937, Roosevelt proposed his notorious “court-packing” plan that would have given him six more judicial nominations. This court-packing plan ultimately died, but Roosevelt helped convince the Supreme Court to change its decisions regarding federal power.
Although the Supreme Court has never overruled Butler’s limitation on federal taxing power, the court began ignoring Butler’s holding. While the Senate debated the court-packing plan in March 1937, the Supreme Court decided Sonzinsky v. United States. Without mentioning Butler, Sonzinsky began a process of subtle backtracking from Butler’s stern warning about federal regulations masquerading as taxes. Sonzinsky upheld a federal tax on firearms dealers, declaring that “an Act of Congress which on its face purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed.”
In addition to its shift from Butler, Sonzinsky sidestepped a 1935 decision called United States v. Constantine that invalidated a federal “excise tax” on people who sold liquor in violation of state laws. In Constantine, the court rejected the “excise tax” because “the [tax’s] purpose is to usurp the police powers of the state.” Without overruling Constantine, Sonzinsky declared the court would not try to determine the true purpose of a federal tax. Thus, if a federal regulation purports to be a tax, then the federal regulation is constitutional.
Sonzinksy led to the outcome of United States v. Kahriger (1953), which upheld a federal tax on gamblers. Kahriger relied on Sonzinsky’s allowance for the Court to ignore the true purpose of a federal tax. Also, Kahriger relegated Butler to a footnote without giving weight to Butler’s holding that any federal tax must not be a camouflaged attempt to regulate an activity that is beyond Congress’ enumerated powers.
Similar to Kahriger, Roberts’ decision upholding ObamaCare dismissed Butler. Roberts acknowledged that Butler was among “[a] few of our cases” that invalidated punitive taxes “designed to regulate behavior otherwise regarded at the time as beyond federal authority.” But then Roberts used Kahriger to justify ignoring the true purpose of ObamaCare’s “tax.” The true purpose is to “improve” public health by regulating the personal choice of buying health insurance, which Congress has no constitutional power to regulate. Thus, we can now see the trail of expansion of federal power vis-à-vis the tax power that began with Roosevelt’s actions and has continued with Roberts’ decision upholding ObamaCare.
Obama, Bush, and Roberts have varying degrees of responsibility for ObamaCare. However, Roberts kept ObamaCare alive because the Supreme Court expanded federal power after Roosevelt’s court-packing plan in 1937. Thus, Roosevelt is the person most responsible for ObamaCare. If you failed the quiz above, you can retake it.