Alice in Supreme Court Land

June 30th, 2012

By Dan Miller

Alice had a strange time in Wonderland. Here’s what she would have encountered had she fallen down the rabbit hole into the Supreme Court.

queen_of_heartsWhen Alice fell down the rabbit hole into Wonderland, she encountered the Red Queen, the Mad Hatter and other strange creatures. The favorite expression of the Red Queen was “Off with their heads!” Unfortunately, the Mad Hatter’s comments were rarely decipherable. In its Thursday ObamaCare decision, the Supreme Court — unlike the Red Queen — did not yell, “Off with it’s head.” Instead, in a manner befitting the Mad Hatter, it held that the ObamaCare mandate is a penalty (as the Congress had referred to it) only for one purpose and a tax (as the Congress had refused to refer to it and as President Obama’s merry troops continue to claim it is not) for all others.

mad_hatterThe Court held it to be a penalty for purposes of the Anti-Injunction Act because as a tax it would not have been subject to judicial review prior to 2014. The Obama Administration had wanted it to be reviewed by the Supreme Court before the November election; that’s the reason it took the case there. However, the Court wisely told us that it is a tax for all other purposes because congressional taxing authority is essentially limitless. The Court did not expressly create a hybrid creature and call it, for example, a Tenalty or a Pentax; it is unknown what the Mad Hatter might have done.

According to this article,

The Roberts opinion does real harm to the broader credibility of our legal system. The individual mandate was called a “penalty” to get around a federal law (the Anti-Injunction Act) and then resurrected as a “tax” to make it constitutional. The joint dissent nailed this contorted legalese as “deep in the forbidden lands of the sophists.” To call Obamacare a penalty sometimes, a tax others, takes aim at the foundations of jurisprudence. If words have no meaning, law has no meaning.

Instead, Roberts reinterpreted the text by fiat and usurped the legislative power of the Congress. If the Congress was passing a tax, it was apparently news to them. This retroactive designation of a “penalty” as a “tax” displayed a breathtaking disregard for not just law—but our common understanding of language that creates it. It also opens the door wide to endless Congressional machinations to compel purchase of anything, for any reason, under the newly elastic “tax” definition.

As also noted here,

[T]he Court has rendered the limitations on congressional power placed in the Constitution utterly meaningless.   There is nothing Congress cannot make you do at the “barrel” of a tax.  Acceptance of this idea means buying either that the Framers designed our federal government to be one of unlimited power or the liberal notion that the Constitution is a living, malleable document.  It means disregarding the entire historical record surrounding our founding, as well as the purpose and construction of the Constitution. …

How far the Court’s decision will reach is unknown.  How and to what extent Congress will abuse the taxation power moving forward is equally unknown (a fact which those celebrating the decision should consider…can we say “tax on everyone who does not own a gun”?).  What is known is that Congress, if willing to impose additional “taxes” on inactivity, now has no constitutional limitation on what it can make you do.  So for those of us who think our constitutional system of limited government is important to the preservation of liberty, the decision is proper cause for mourning.

humpty_dumptyAh yes, but we must look at it from the perspective of Humpty Dumpty, which more closely resembles that of the Supreme Court majority.

`When I use a word,’ Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’

`The question is,’ said Alice, `whether you can make words mean so many different things.’

`The question is,’ said Humpty Dumpty, `which is to be master — that’s all.’

Surely, it is best for the Chief Justice of the Supreme Court to be the master of his words and not a slave to the hackneyed usages of lesser lights. The Mad Hatter might agree; who knows what he might say or what he might mean by whatever he might say. It is unfortunate that he has not been appointed to the Supreme Court; uh, has he?

Congressman Allen West said,

The president said that this was not a tax, now we know that it is only Constitutional because it is seen as a tax…. “This was a horrific decision that was made yesterday because, basically, it’s granting unprecedented taxation authority to the federal government.”

He is, of course, correct. As I wrote here, the decision gives the Federal Government authority over commerce and everything else via the taxing powers of the Federal Government — even though the Federal Government seemed either not to have noticed or to have paid much attention to that delightful possibility earlier.

According to Chief Justice Roberts, the Federal Government can tax the non-purchase of gasoline. Hence, it can apparently tax the non-purchase of every other good or service in or not in interstate commerce as it might wish. Should it decide to tax the non-purchase of vegetarian delights because veggies are good for us (or more likely to promote the businesses of veggie contributors so that the honorable members can receive more campaign contributions from them) that’s fine. On the same theory, it can presumably tax any other non-activity it may chose.  How about a tax on failure to work for a living? Nope, that would offend the devotees of free stuff. Guns? Please! Don’t be silly.


In my earlier article I acknowledged that I have found no cure for the SupremeCourtitis or MadHatteritis virus that caused these things (the Center for Disease Control has not announced the results of any research on the matter). We can try to amend the Constitution but success is unlikely. We can try to elect CongressCritters and Presidents familiar with the Constitution and likely to read legislation before they vote on or sign it into law; if successful, that might help at least for a while. We can try to get ObamaCare repealed but that won’t cure the underlying problems created by the Court’s decision. We can even try to have another Civil War, but that would be folly; I guess.

This may help.

If that doesn’t help, maybe this will. CAUTION: YouTube has labeled this video as potentially offensive (if viewed there rather than by clicking on the arrow at the center of the screen here). View it at your own risk; I disclaim all liability.

In any event, on the Fourth of July be sure to ignite only safe and environmentally friendly fireworks and neither to do nor even to think anything even remotely militaristic.  Also, please do not call it Independence Day because that’s no longer cool.  Keep in step with the Modern American Way!

(This article was also posted at Dan Miller’s Blog.)

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4 Responses to “Alice in Supreme Court Land”

  1. Tom Carter |

    No doubt the Supreme Court (and the entire government) can be fit into the absurd framework of Alice in Wonderland. Makes perfect sense to me!

    However, I still think Roberts’ decision was a work of genius. The Solicitor General argued, kind of: Oh, by the way, the mandate can be seen as a tax if you want to look at it that way. The majority, led by Roberts, took it that way. They avoided a Commerce Clause kerfuffle, threw it back at the President and Congress as a tax, which they had sworn up and down that it isn’t, and made the point that it isn’t up to the Court to save the country from bad policy made by muddled politicians. As noted, the people and their elected representatives are responsible for how their government functions, as long as it’s constitutional.

    Those who favor replacing Obama with Romney and gaining conservative control of both Houses of Congress should be happy with the decision. I’m certainly among them. The Republicans are going to spend the next few months beating up the Democrats because of the huge tax embedded in ObamaCare, and the Democrats are going to be twisting their tongues in all directions trying to squirm out from under it. On balance, this decision was better for the Republicans than the Democrats. It was also better for the Court and should warm the hearts of those who believe in a restrained judiciary.

    As far as Congress’ taxing power, there really are few limits on it, either in the Constitution or (as far as I know it) case law. They tax us to encourage or discourage us from doing all manner of things all the time. The solution lies with the people, as it should. Franklin supposedly said the we were given a republic, if we could keep it. It will be interesting see what happens in November.

  2. Dan Miller |


    Franklin supposedly said the we were given a republic, if we could keep it. It will be interesting see what happens in November.

    Yep. We had better.

  3. larry |

    Mista Dan
    Your thoughts on the recent SCOTUS ruling on ObamaCare leave me apprehensive about what to expect in days to come. It appears that the historical “wall” of Constitutional protections have been breached. You have pointed out the possibility of congressional abuse resulting from this ruling. What would be the most expedient method of reversing the damage?
    That we find ourselves in this Constitutional crisis is no surprise to me. This developing “train wreck” was apparent to anyone that was paying attention.

  4. Dan Miller |


    I’m rather depressed about the whole thing and can think only of temporary solutions such as getting new drivers for the train. That will be difficult but should be possible.

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