The Continuing Slide Into Tyranny, Part I

The progressive movement has been chipping away at individual liberty since the beginning of the last century. Rather than recount 100 years of history, let's start with 2005 and then jump to today.

In 2005, Justice Anthony Kennedy joined four other liberal Justices in the case of Kelo vs. City of New London. Those five Justices completely rewrote the part of the Fifth Amendment to the Constitution that deals with eminent domain: "...nor shall private property be taken for public use, without just compensation." A "public use" was always considered to be just that - a school or library or highway, as examples. In the Kelo case, "public use" was redefined to mean government may take your property and give it to another private citizen (such as a developer), if the new use under the new owner would generate greater tax revenue (say a strip mall in place of your house). That new definition of "public use" gave government at all levels the unlimited power to take anyone's property if they could generate more tax revenue from that property.

This past Thursday the Supreme Court handed down their decision in the Affordable Care Act case (King vs. Burwell). While the statute provided subsidies to those enrolled in "an exchange established by the State," Obama decided that language was unsatisfactory. Thirty-four states did not set up an exchange, although the residents of those states were eligible to enroll in the federal exchange. The IRS, under Obama, took it upon themselves to grant subsidies to those enrolled in the federal exchange, notwithstanding the limiting language of the statute.

Generally, courts will defer to an administrative agency's interpretation of a statute where the language is ambiguous. Here, the plaintiffs argued that the language was plain - the subsidy was available to those enrolled in an exchange established by the State.

As a reminder, 3 years ago Chief Justice John Roberts took it upon himself to rewrite the ACA in order to uphold its Constitutionality. Then, the argument was that the Constitution did not give Congress the power to order people to buy insurance, or pay a penalty for failing to do so. Roberts agreed that the Commerce Clause (frequently used to expand government power) could not justify a mandate to buy insurance. Therefore, Roberts rewrote the statute so that the failure to purchase insurance was a "tax," rather than a "penalty;" and then upheld the law under Congress' taxing power. The four liberal Justices would have voted to uphold the law under the Commerce Clause, seeing no problem in Congress telling you what to buy.

This week, Roberts joined the majority again, and again rewrote the legislation to suit his purposes. Having previously declared the penalty was a tax, this time he said that an exchange "established by the State" actually meant "an exchange established by the State or Federal Government." So what's the problem? Wasn't this just an oversight by Congress? Per Roberts, wasn't this a case where "the Act does not reflect the type of care and deliberation that one might expect of such significant legislation?"