Pat Allen: The View from Right Field

The Constitutionality of Obamacare: Liberals Get the Surprise of Their Life

I don’t know how the United States Supreme Court is going to decide on the constitutionality of Obamacare.  Nobody does.  Questions from the bench are sometimes just that.  Questions.  And questions are not always an indication of how a justice will decide.

In any case, what I wanted to comment on was not what I think the Court will, or should, decide.  What I wanted to comment on was the reaction of liberals to the concept that there could actually be a real argument on the constitutionality of the law.  They can’t believe it.  It does not fit with anything they believe.  They understand that the Bill of Rights limits what the government can do.  For example, laws restricting a woman’s right to choose (i.e., abortion) are unconstitutional.  Many liberals believe that capital punishment violates the Eighth Amendment’s prohibition on cruel and unusual punishment and that laws outlawing same-sex marriage violate various equal protection provisions.

But the idea that there is any limit on the federal government’s power in other areas doesn’t fit.  Liberals find it absolutely incomprehensible that the federal government can’t do whatever it wants and however it wants to do it.  And in some ways I can understand their confusion.  After all, if the federal government can regulate a farmer’s ability to grow wheat for his own personal use because it affects interstate commerce, what limits are there?  (See here.)

Liberals have come to believe that the federal government is there to solve our problems, all of our problems.  (A fair number of conservatives seem to believe that, too, at least at times.)  Poor third grade test scores?  We need No Child Left Behind.  Drunk driving?  Cut highway funds to states that won’t lower their maximum blood alcohol leve.  Shootings in school?  Pass a federal law.*

In the articles they have been writing, liberals have seemed dumbstruck by the idea that there may actually be limits on what the federal government can do or the way it can do it.**  They cannot comprehend that some people actually believe that different levels of government have different powers and that the Constitution has a relevance for today (except for the limited matters mentioned above).

But James Madison explained it in the Federalist Papers:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.”

I agree with Mr. Madison that the federal system set out in our Constitution works to prevent "[t]he accumulation of all powers "in one place, which is “the very definition of tyranny.”  But also, by dividing up the powers and duties of the various governments, the Constitution provides better government by ensuring that one level of government does not try to do more than it can and that what it does have responsibility for are those things which it can do best.

As an aside, liberals (and some conservatives) also have problems with the idea that different branches of government have different jobs.  For example, I have often heard liberals (and some conservatives) say that the courts need to deal with a particular problem because Congress hasn’t or won’t act.  No!  The courts are not an alternative legislature that you go to when you don’t get the answer you want from the first one.  Courts and legislatures have different jobs, and they should do their own job and not the job of the other branch.  If Congress won’t address a problem, that doesn’t mean the courts should.  Maybe it means that the people, through Congress, don’t think the problem needs to be addressed or maybe they are okay with the way things are.***

But back to liberals and the constitutionality of Obamacare.  Clearly, liberals never understood that there was, or even could be, a serious constitutional challenge to Obamacare.  It wasn’t within their philosophy, and since they don’t understand conservative philosophy (and many of them don’t think conservatives have a philosophy other than selfishness and not caring for other people), they missed it entirely.  Until last week.  When they got the shock of their lives.

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* This last one actually was overturned by the U.S. Supreme Court, on the grounds it was not within Congress’s power to regulate interstate commerce.  See United States v. Lopez.

** Among many others, see here and here.  There are ways the Obama administration could have set up a national health care system that would not have been susceptible to challenge.  (Among others, see here.)  But the fact that there was a way it could have been done without challenge, doesn’t mean that the way they chose can’t be challenged.

*** Obviously, there are problems that the courts need to address because there are questions that rightfully do belong to the courts.  Plessey v. Ferguson needed to be overturned, and Brown v. Board of Education needed to be decided.  But do courts really need to decide the proper way to fund schools and how much money the schools should have – because the legislature isn’t doing it right?  (See here.)

The Constitutionality of Obamacare

On Monday the Supreme Court will be taking up the constitutionality of President Obama’s healthcare plan, and they are going to do it with three days of arguments. The Court’s providing for three days of arguments shows the seriousness with which the Supreme Court will be giving the issue. And it looks good to the public: It is the Supreme Court telling the people that they understand the importance of the issue and they are proceeding appropriately. Nobody knows how it will turn out, but perhaps the best guess I have seen is a 6-3 or 7-2 vote to uphold the law, with Chief Justice Roberts writing the opinion himself in order to keep the opinion as narrow as possible, so it only applies to healthcare and does not become the basis for further expansions of federal power.

As for my thoughts, I have written on the subject twice before. The first time was on April 8, 2010, when the idea that there could be a real constitutional challenge to the idea was not taken seriously. I wrote again ten months later, on February 7, 2011, by which time it had become clear that there was a real, substantive challenge to the law and that it might not get upheld. Looking back on those two articles, I don’t think I have much more to say on the constitutionality of the law. At this point all we can do is wait for the lawyers to argue and the Court to decide.

Another Court Decides for Gay Marriage

As you know by now, on Tuesday the Ninth Circuit Court of Appeals in San Francisco struck down a voter-approved amendment to the California constitution which banned gay marriages.  I am going to make a quick comment on the ruling, even though I haven’t read the whole opinion.  (It is probably not a good idea to do this, but I am going to do it anyway.)

According to the opinion of the Court of Appeals:

“Proposition 8 [the popular name of the amendment to the California constitution] serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples.”

Obviously, that is not true.  The 52% of the people who voted for the amendment did not do so because they wanted to degrade gays and lesbians and take away their human dignity.  Maybe a few of them did, but all of them?  If this is what all 52% of the people voting for this proposition really thought, then any sensible person, even one who isn’t in favor of gay marriage but has no interest in degrading and humiliating gays and lesbians, ought to move out of California immediately because it would mean California is mainly populated by some really mean-spirited, evil people.  Including, I might add, the California Supreme Court, which upheld Proposition 8 after it was approved by the voters, by a vote of 6 to 1.

Actually, it would appear the judge who wrote this opinion did not strike down Proposition 8 because it did the things listed in the quotation above.  Rather, he said Proposition 8 did these things because he wanted to strike it down.  In other words, it would seem the decision to strike Proposition 8 down came first; the justification for doing so came later.  Which is not how courts are supposed to decide things.

How Do You Sound Repentant If You Don’t Think You’re Guilty?

The Chicago Tribune reported last Saturday that Conrad Black, who was convicted in 2007 of defrauding shareholders of Hollinger International, Inc., a company that owned, among other things, the Chicago Sun-Times and The Daily Telegraph, would be going back to jail to finish his sentence.  The interesting part of the article was this:

“Standing before the judge, Black, 66, remained unapologetic, blaming corporate governance zealots and overreaching prosecutors for his and Hollinger's downfall. He was defiant even as he sought mercy from the judge.

St. Eve, who presided over his 2007 trial, sent him back to prison for roughly a year to finish a reduced sentence of 42 months. St. Eve, a former prosecutor, said the new sentence will send a message to corporate America that executives should think twice before violating their duty to shareholders. Black's lack of contrition also left an impression on the judge.

‘I'm still scratching my head as to why you engaged in this conduct," St. Eve said. "I told you that the last time.’ …

After sentencing, Assistant U.S. Attorney Julie Porter said: ‘The defendant has never accepted responsibility for his own conduct, his own actions and the consequences they had for this company, which were very extreme.’”

I know nothing about the case against Lord Black, other than he was convicted, in part, of violating the "honest-services law," which is a prosecutor’s dream and a civil libertarian’s nightmare, and which has always seemed to me to be a gross overreaching of criminal law.

But it is not the case against Lord Black that is interesting.  It is, rather, the fact that his lack of repentance seemed to have been held against him in his sentencing.  What raises the question I posed in the title of this post: How do you sound repentant if you don’t think you’re guilty?  And what do you if you really feel you are innocent but the best way to get out of jail is to admit your guilt and sound remorseful and apologetic?

This question brings to mind the case of Gerald Amirault.  Mr. Amirault, along with his mother and sister, were convicted in 1986 in one of those then famous, now infamous, sex-abuse investigations/inquisitions that were so popular back then.  (Please understand that I am not saying that the fact a few of those cases were more like the Salem Witch Trials than proper American justice, means that all sex abuse cases are wrong or that all people accused of sex abuse are innocent.  I am absolutely not saying that.)

In any case, I am not going into the truth of the Amirault case (though I do think Mr. Amirault was innocent).  What is interesting is how Mr. Amirault approached the question that I raised above.  According to The Wall Street Journal:

“The latest obstacle to Gerald Amirault’s freedom came without fanfare.  A three-member panel of the Massachusetts Department of Corrections has now decided that, since the prisoner has refused participation in treatment programs, he was considered to be ‘in denial.’  Permission for him to appear before the Board that could grant early parole would therefore be denied.

The world view of the social philosophers responsible for this decision does not allow for the possibility of wrongful convictions.  In self-legitimating systems like this one, an unwavering assertion of innocence – at whatever the cost to his hopes for parole – is dismissed as ‘failure to take responsibility.’  Mr. Amirault’s mother and sister were denied parole for the same reason and were freed after eight years only because a lower court judge overturned their convictions on child-abuse charges.”*

So, what would you do?  Continue to maintain your innocence, even though it meant more time in jail, or say whatever you had to say to get out of there?  In some cases the claims of innocence may be self-delusion or even deliberate lies.  In others, they represent a belief in principle and a willingness to hold to that principle that is impressive.  I think that many of us would honestly say we are glad we have never been put to such a test.  I know I am.

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* “How to Extort a Confession,” The Wall Street Journal, April 22, 2002.

The Best Path for Same-Sex Marriage

I see that the New York legislature has passed, and Governor Andrew Cuomo has signed, a bill legalizing same-sex marriage.  This follows what the Illinois legislature did earlier this year in approving civil unions.  Which brings me to my point.

It appears that same-sex marriage and civil unions are coming.  Public opinion is shifting.  And it is shifting the most among the young, which means it will continue to shift as time passes.  In light of this, and regardless of how one feels about same-sex marriage and civil unions, we would all be better off if they come from the legislatures, instead of the courts.  Let me explain.

According to the Chicago Tribune, in New York:

“[C]onservative lawmakers fought for changes to enhance protection for faith-based groups opposed to recognizing gay marriages.

Late Friday afternoon, lawmakers agreed on an amendment that the bill's sponsor, Assembly member Daniel O'Donnell, said made ‘clearer than clear’ that religious groups would not be required to perform same-sex marriages.”

This is the kind of fine-tuning and adjusting that legislatures can do and courts cannot.  And these kinds of modifications and compromises can make these kinds of changes more acceptable to the majority of people who are in the middle on issues such as this.

I have often thought that it was a good thing the Equal Rights Amendment did not pass.  The fact it didn’t pass did not stop much of what the proponents wanted (and what the opponents opposed) from happening.  But it happened in bits and pieces, in laws and in people’s attitudes, over time, instead of in courts and lawsuits.  And it has allowed the questions to be decided by those in the middle instead of those on the extreme.

I have similarly thought that one of the tragedies of the abortion debate in the United States is that the Supreme Court tried to answer the question with a blanket rule that applied to everybody, in all situations. The result has been constant litigation and politicization of the courts.  

I have wondered where we would be without Roe v. Wade.  It seems possible that, instead of the debate being controlled by those on the extremes, i.e., by those who favor no abortion in almost any situation and those who would allow partial birth abortion, we would have the people in the middle making the decisions.  Abortion would be legal, but there would be limits.  Abortions at 25½ weeks wouldn’t be allowed, and parents would be involved in the case of minors.  Our legislators would be forced to deal with the issue, instead of posturing, and they would, eventually, come up with rules that most of us could agree to and live with.

I realize that same-sex couples want it all now.  I probably would, too.  But they would be better off, and the rest of us would, too, if they would press for their changes in the legislatures instead of in the courts.

$152 Million for Smoking Cigarettes: Courtroom or Casino?

Back in December a jury in Boston awarded $152 million damages in the case of a woman who died of lung cancer at 54.  $71 million of this amount was for compensatory damages; the rest was punitive damages.  Jeff Jacoby of the Boston Globe explains why this was a bad decision.  I agree, but there is more to it than just that.

What happened to this woman happened to a lot of people.  They started smoking, and they didn’t stop even though they knew that smoking was bad for them.  It’s sad, and you feel badly for their families.  But the cigarette companies can’t pay $81 million in punitive damages to every person who was allegedly “tricked” into smoking and didn’t stop even though they knew it was bad for their health.  They will pay a few of these and then go out of business.  Some people may be okay with that, but in that case why should this woman (or, actually, her son and her estate) get all this money while other people in the same position get nothing?*

This verdict isn’t justice; it’s Las Vegas.  If you sue quickly and have a good lawyer, you get money (or, at least, your kids get rich).  If you wait a while or if you have a bad lawyer, you get nothing.  It’s roulette in the courtroom.

There is nothing all that special about one cigarette case versus another.  If we really want to give money to people who got sick from smoking cigarettes**, then we need to figure out a way to compensate all of them.  There is no fairness in one smoker’s kids becoming multimillionaires while others just continue along as they did before.

But beyond that, if cigarettes and tobacco companies are really so bad that this woman (or, more appropriately, this woman’s kids) really deserve $81 million, then there is no way that Congress can allow people to continue to smoke.  If cigarettes are as bad as this jury decided, and if what the cigarette company did here was so bad that it justified $81 million in punitive damages (not to mention $71 million in compensatory damages), then cigarettes need to be outlawed because what happened here is what cigarette companies do.  Cigarettes shouldn’t be legal if somebody can get $81 million in punitive damages from a tobacco company operating in the normal course of its business.  And if Congress can’t or won’t outlaw cigarettes, then they ought to do what they can to stop verdicts like this.***  Because allowing both makes no sense.

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* Some people will say that the purpose of punitive damages is to set an example; punitive damages don’t need to be available to everybody.  But the argument I am making above applies with respect to the $71 million in compensatory damages as much as it does to the $81 million in punitive damages.  The tobacco companies can’t pay that much in compensatory damages to very many people, either.  It’s still roulette in the courtroom, with Lady Justice spinning the wheel and saying “last bets”.

** Two comments.  First, isn’t that, in effect, what was done in that big nationwide lawsuit brought by state attorneys general, etc., against the tobacco companies?  The money didn’t go directly to the smokers, but it is supposed to be used for their benefit (assuming you trust the governments who got the money).  Second, for the reasons Mr. Jacoby states, among others, I am not in favor of giving money directly to individual smokers. 

*** One comment on outlawing cigarettes:  We tried prohibition once.  It didn’t work then; it wouldn’t work much better now.

Seeing Munich’s Olympic Stadium – and American Tort Law

As we sat in church yesterday, I thought about our trip to Munich and Berlin last month and how glad I was that those cities were not in the United States.  Let me explain.

For years our church had a huge Christmas tree in the front of the church.  (It is, after all, a German Lutheran congregation.)  After Christmas, the church would cut off the branches and use the trunk for the cross on Good Friday. 

But a couple of years ago, our village passed an amendment to its building code (or fire code, I am not sure which) that prohibited “real” Christmas trees in public buildings.  The worry was about fires.  After all, I am sure you remember reading about dozens and dozens of deaths and injuries every year because of real Christmas trees catching on fire in public buildings.  Oh wait, you probably don’t remember that.  Because there weren’t those stories.  Because they didn’t happen.* 

In any case, as I looked at our church’s artificial Christmas tree, I thought about our time in Munich.  When we were taking our “grand tour” of Europe in 1994, we had to bypass Munich, which was unfortunate because our son had wanted to see the stadium from the 1972 Olympics.  So we went out to Olympiapark in Munich this year.  There was lots of snow on the ground, but I hoped we would at least be able to go up the Olympia Tower.  We could see Munich from there, and we would be able to see the Olympic Stadium.  But when we got there, the Stadium itself was open!  It was incredible.  There was snow all over.  The aisles were covered with snow.  But the Stadium was open, and you could walk in and see it.  You had to be a little careful, but it was no big deal. 

Except that it would have been a big deal in the United States.  There is no way that a stadium would have been open in those conditions in the United States.  The fear of personal injury lawsuits would have closed everything up tight.  Nobody would have been able to get it to see it.  Our lawyers and our society’s view that everything is somebody else’s fault would have made sure of that.  But, as I said, fortunately, we were not in the United States.

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* Obviously, if this rule had been in effect in 1965, Charlie Brown wouldn’t have been able to get a real Christmas tree for his school play.  It would have been against the law.

A Court Overturns “Don’t Ask, Don’t Tell”: The Return of Judicial Substantive Due Process?

Back before the Supreme Court stopped overturning the economic legislation of the New Deal, there was a judicial theory called “substantive due process.”  This theory allowed courts to review laws under the due process clauses of the Fifth and Fourteenth Amendments and to decide whether a particular law “deprived” a person “of life, liberty, or property, without due process of law”.  (Also, see here.)  During what is sometimes called “the Lochner era”* (from 1897 to 1937), courts used substantive due process to strike down things such as minimum wage laws, child labor laws, and several early New Deal laws.  The courts held that these laws unreasonably interfered with certain rights and/or that the laws had no rational/reasonable connection to any legitimate state purpose.  In effect, the courts would look at the laws and the reasons for them and would come to their own opinion as to whether the reasons were good enough.  If they weren’t good enough, at least vis-à-vis what the court thought was a legitimate state function, they would overturn the law.

In 1937, with “the switch in time that saved nine,” the Supreme Court stopped overturning New Deal economic legislation, and the doctrine of substantive due process largely went away.  Courts overturned laws that violated First Amendment rights or practices that interfered with procedural rights in things like criminal law, but in other areas, the courts stopped second-guessing the political branches of government.  Some recent court decisions, however, make me wonder if the judicial activism of “substantive due process” might be making a comeback.

On Thursday, a federal judge in southern California held that the U.S. military’s policy of “don’t ask, don’t tell” was unconstitutional.  But it wasn’t just the result that raised the question of a revival of substantive due process.  Rather, it’s some of the judge’s reasoning that causes the concern (at least as it has been reported in the press).  See this quote from an Associated Press report on the case:

“In her ruling, [Federal District Court Judge Virginia] Phillips said the policy doesn't help military readiness and instead has a ‘direct and deleterious effect’ on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.”

Normally, I would think that questions of whether the military’s “don’t ask, don’t tell” policy helps military readiness or hurts recruiting efforts would be ones for the military or the political branches of government to answer.  But within substantive due process is the idea that a court can look at the same evidence the political branches of government looked at and then decide whether the decision of the political branches of government makes sense to him or her.  (Actually, the court doesn’t actually look at all of the evidence that the political branches look at.  The court can only look at whatever evidence the parties in the case bring to its attention.  If one side or the other does a poor job of bringing evidence to the court’s attention, then the judge may have much less evidence, and much more one-sided evidence, than the political branches had available to them.)

In this case, the judge looked at various reports and at the stories certain witnesses told, and she decided that the military and Congress came to the wrong conclusion with respect to “don’t ask, don’t tell”.  In doing so, the judge noted that both President Obama and Admiral Mike Mullen, chairman of the Joint Chief of Staffs, thought repeal of don’t ask, don’t tell was a good idea.**  Of course, Congress knew of the President’s view and Admiral Mullen’s view, and they didn’t change the law, but that didn’t seem to mean much to Judge Phillips. 

The judge tried to claim that this was a First Amendment issue.***  She did this, I think, so she could, in effect, establish a more difficult standard for the government to meet in defending the law.  What she was really doing here, however, was substituting her view of what is right and what is reasonable, for the view of the military and the Congress.  She weighed the evidence and decided that her view of how the arguments came out was right and that Congress’s and the military’s was wrong.

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* The Lochner era is named after the case of Lochner v. New York (1905).  In this case, the U.S. Supreme Court invalidated a New York law that limited the number of hours a baker could work each day to ten and limited the number of hours a baker could work each week to 60.  By a 5-4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers.  In his opinion for the Court, Justice Rufus Peckham said it was the court's job to decide whether legislation was “a fair, reasonable and appropriate exercise of the police power of the State.”  In this case, the Court held it was not.

** The judge's whole opinion can be found here.

*** Here is the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I’m having a little trouble finding a prohibition of “don’t ask/don’t tell” in the military in this language.

Update (9/13/10 9:08 am): Modified the third footnote to make my point clearer (I hope).

Gay Marriage: Courts Try to Decide Yet Another Issue for Us

Last week a federal district court judge in California overturned the ban on same-sex marriages that California voters approved in 2008. The court held that the amendment to the California constitution violated federal constitutional guarantees to equal protection and due process when it denied the right of gays and lesbians to be married.*

Dahlia Lithwick of Slate.com said this about the ruling:

"But for all the lofty language about freedom and morality, nobody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice.

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work."

Obviously, Ms. Lithwick is impressed with the decision, but when I read these kinds of things about the opinion, I think to myself: Isn’t this what legislatures are supposed to do? Listening to experts, weighing scientific opinions, finding facts. Isn’t that what we elect our representatives to do? What special expertise do courts bring to this kind of question that legislatures don’t have? It would seem that what many of those who applauded this decision liked about it was the result. They didn’t care who decided it or how it was arrived at as long as the result was right.

I disagree with this approach because I see the protection of our liberty in the protection of our constitutional process. When the result becomes more important than the process, we weaken the process. And a process that is weakened is less protection against overreaching government in the future.

Somewhat similarly, Eric Zorn’s "Change of Subject" column in last Friday’s Chicago Tribune was entitled: "Gay marriage ruling speaks to our nation's highest values". Actually, what might have spoken even more to our values is if the court had not stepped in to decide this issue for us, but if we the people had been allowed to do it ourselves. The way things have been going, I think what Mr. Zorn (and Ms. Lithwick) wanted would have happened, probably sooner than either of them thought possible. And how much better would it have been, and how much more secure would the rights in question be, if the people had been come to this result themselves, instead of having a court force it on them.

I hope that the court, by interrupting our natural democratic processes, has not created an issue, like abortion, which will be an open sore for years to come because the people were not allowed to resolve it properly by themselves.

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* Geoffrey A. Fowler, "Judge Voids Ban On Gay Marriage," The Wall Street Journal, August 5, 2010, page A1.

"Originalism" Versus the "Living Constitution" - Follow-Up

Right after I posted "‘Originalism’ Versus the ‘Living Constitution’", The New York Times reported that the Obama administration was no longer basing its constitutional defense of the health care mandate on Congress’s power to regulate interstate commerce. Instead, the Justice Department will be defending the requirement that individuals buy health insurance on Congress’s power "To lay and collect taxes". (As you remember, beginning in 2014, if an individual does not have a health care plan deemed acceptable by the federal government, then he or she has to pay a penalty to the federal government, which would be collected by the Internal Revenue Service.)

In September of last year, President Obama flatly rejected the notion that the penalty was a tax:

"‘For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,’ the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program ‘This Week.’

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, ‘I absolutely reject that notion.’"

President Obama was saying this because, among other reasons, he had promised in his campaign that he would not raise taxes on families earning less than $250,000 a year. Congress went along with that theory and included all kinds of "findings" in the health care bill about how the individual mandate was important because of the effects on interstate commerce.

But now that the bill has passed, the Obama administration is saying, in effect, "Surprise. Didn’t mean it." Or, in the words of The New York Times:

"The law describes the levy on the uninsured as a ‘penalty’ rather than a tax. The Justice Department brushes aside the distinction, saying ‘the statutory label’ does not matter. The constitutionality of a tax law depends on ‘its practical operation,’ not the precise form of words used to describe it, the department says, citing a long line of Supreme Court cases."

Apparently, Barack Obama, the law school lecturer on constitutional law, must have forgotten about those cases when he was talking with George Stephanopoulos. Of course, when then-Senator Barack Obama was running for the Democratic nomination for President, he opposed the individual mandate and criticized Hillary Clinton for favoring one. (Once again, "Surprise.")

But the more interesting point is this (and in raising it, I freely acknowledge that I am not a constitutional law expert of any kind): If the requirement that you either buy health insurance or pay a penalty is a tax because it is expected a fair number of people will not buy the insurance and will pay the penalty, which will raise a substantial amount of revenue for the government, what limits are there on Congress’s power? What is stopping Congress from requiring almost anything and then justifying it on the grounds that it is a tax because those who fail to comply must pay a penalty to the IRS?

Obviously, there has to be some limits, but I am not sure I would trust the Obama administration (or the big government conservatism of its predecessor) to respect them.