By James Corbett
Everyone has heard the phrase “The power to tax is the power to destroy.” Few know it derives from an 1819 Supreme Court ruling. In McCulloch v. Maryland, Chief Justice John Marshall, writing the majority opinion, held “That the power to tax involves the power to destroy[... is] not to be denied.” This phrase is universally taken to mean that the government's power to tax is a terrible weapon that must be reined in as much as possible. In the context of the decision, however, it was virtually the opposite; McCulloch v. Maryland was actually a rebuke delivered to an uppity state (Maryland) that was trying to tax a federal institution (the Second Bank of the United States). In other words, 'if we give states the power to tax an instrument of federal government, they could take the government down!' And we couldn't have that, now could we? Still, the phrase stuck and people make of it what they will.
Doubly ironic, then, that on June 28, 2012 Chief Justice John Roberts (the “conservative” “moderate”) decided to let Obamacare and the individual mandate for health insurance stand, not on the Commerce Clause, as argued, but on the federal government's power to destroy...or is that tax? So what does this all mean?
To answer that, let's examine this in light of Scalia's broccoli conundrum. Back in March, Justice Antonin Scalia drilled Obama administration lawyer Donald Verrilli about whether the precedent set by Obamacare could lead to a situation where the government could force people to buy broccoli. The argument itself is trivial and absurd, as is the way of these philosophical debates, but the point is profound. After all, if the government can force individuals to buy a certain product or service in the market, what's to stop them at health insurance? Why not mandate the eating of healthy foods? Or the purchase of goods from companies the government wants to help out, like GM or Solyndra? Justice Roberts' majority opinion this week effectively says that, no, the government cannot make you buy broccoli. But they can create a “broccoli dissenter” tax, which could be refunded if you prove to the government that you purchased your broccoli. In other words, the government can't force you to buy something outright, but they can tax you for not buying it.
In this case, the power to tax is most certainly a power to destroy. It's the power to destroy freedom of choice, or at least whatever freedom was left in a country with a Department of Homeland Security that boasts a “see something say something” campaign straight out of the Stasi handbook and a Transportation Security Administration that forces passengers at airports across the country to choose between a porno scanner and a private part patdown every time they travel. Now add one more governmental imposition to the list: you must now deposit a portion of your paycheque into the bank accounts of one of the medical insurance companies or the government will reach into your bank account and do it themselves.
Still, there are those who choose to look beyond the basic violation of human liberty involved in this decision. They see the problem of people who can't afford medical insurance and cry out for the big stick of government to force everyone to pay into the status quo system, as if this is the only conceivable way to handle the problem. Never do they ask themselves how the people were able to survive before the government began getting involved in the medical care system in the first place; thus, they can safely ignore the Hippocratic oath, the doctors who donated a portion of their time to pro bono work, the charity hospitals run by religious organizations. Never do they question the validity of a health care system dominated by Big Pharma that sees every disease as a nail crying out to be hammered down by their latest pharmaceutical concoction. Never do they ponder the Journal of the American Medical Association's own estimate of 225,000 medically-caused deaths per year in America. Never do they pause to question the bureaucratic monster that is being created by this Frankenstein legislation (68 grant programs, 47 bureacratic bodies, 29 pilot programs, 6 regulatory systems) or the 16,500 newly-created IRS agents who will be unleashed to enforce it. The IRS alone has received over half a billion dollars in additional funding this year to begin policing the new law and make sure everyone is complying with the individual mandate...and that's only a portion of the money they're expected to spend gearing up to implement Obamacare.
Not to worry about any of these concerns: Team Blue has just won the football game, and for about half of the American public that's all they know or care about. Team Red, meanwhile, believes that this is all Team Blue's fault and that their team had nothing to do with it. The sick joke is that they're both wrong. Those on the Left believe they have won some sort of victory for the working people because they don't know that in March 2010 Senator Max Baucus singled out Liz Fowler as the author of the key document that spawned the Obamacare bill. Liz Fowler also happened to be the former VP of WellPoint, Inc., a major health insurance company.
Those on the Right, meanwhile, will use this as a rallying cry to put their man into office on his pledge to repeal Obamacare...despite having passed its admitted forerunner as Governor of Massachusetts where he touted the individual mandate. It's all a smokescreen, of course, and given the bureaucratic inertia behind the legislation, coupled with the boon to the insurance industry, it is almost unimaginable that the law will be repealed at this point.
As is the way of these things, the Obamacare announcement was used to sweep another explosive story under the rug. On any other news day of the year, Congress' vote to hold Attorney General Holder in contempt would have been a huge story. On Obamacare decision day, however, it's an also-ran. This, too, is theatre, as the next step is to refer the criminal charge to the U.S. attorney for D.C., Ronald Machen, in effect asking him to prosecute his own boss. This is the irony of having someone suspected of criminal wrongdoing as the head of a department referred to as “Justice” should need little explanation. Still, it makes for good political fireworks and will no doubt polarize and energize the bases of the two big parties for the elections this fall. Of course the congressional investigation, led by Oversight Committee Chair Darrell Issa, a Republican, will never get to the bottom of the Fast and Furious gunwalking scandal because it leads back to Bush-era gunwalking operations like “Wide Receiver.” Since it's a two-party scam, the investigations will only go so far and then peter out under cover of the next political scandal. This is why we have not seen and will not see any coverage of real drug war revelations, from the origins of Fast and Furious to the testimony of rising Sinaloa drug cartel star Zambada Niebla's that the Sinaloa leadership struck a deal with the US government to avoid prosecution in exchange for ratting out their rivals. And now, 60 years after the CIA helped the Sicilian Mafia smuggle heroin, 50 years after Air America helped the Hmong smuggle opium and heroin, 40 years after Nixon's “War on Drugs” began an era of unprecedented incarceration and increased drug use, 30 years after the U.S. government started financing arms with cocaine money, 25 years after Senator Kerry's report concluded that the State Department was involved in drug trafficking, 15 years after the CIA Inspector General vindicated Gary Webb's tale of U.S. government-supplied cocaine feeding the crack epidemic of the 1980s, 10 years after the Bush administration began its own gunwalking program to arm Mexican drug gangs, the Attorney General has been found in contempt of Congress for covering up the current administration's gunwalking program. Such is the way of American “justice.”
And as if all that isn't enough to give the lie to the “justice” of the “justice system,” a federal judge has just ruled that the U.S. government is immune from lawsuits for its practice of intentionally infecting unwitting foreigners with syphilis. The case dates back to the 1940s, when the U.S. Public Health Service began an eight-year “experiment” that involved exposing prisoners, orphans, prostitutes, soldiers and other dupes to syphilis, gonorrhea and other diseases. Apparently, they wanted to conduct research on how these diseases spread amongst the population, and this is the method that occurred to them to carry out that research. The experiments were led by Dr. John C. Cutler, who would later become infamous as one of the coordinators of the Tuskegee experiment in which African Americans were deliberately left with untreated syphilis to examine the spread of the disease. The survivors of the Guatemalan experiment banded together to launch a class action lawsuit for compensation in 2011, but the suit was struck down this week by District Judge Reggie Walton, who ruled that the court does not have the authority to provide any redress in this case. He did include his regret at the “deeply troubling chapter in our Nation's history,” though, and Obama did offer an apology for the experiments in 2010, so now the Guatemalans will be expected to shrug their shoulders and go back to their lives, having accepted the decree from the bench that, at the end of the day, they are just lab rats, and one does not pay the lab rats for participating in studies.
Yet another remarkable ruling to barely make headlines in this week of the Obamacare monstrosity is the case of Kim Dotcom, the Megaupload founder who was arrested and had his mansion raided and property seized earlier this year. On Thursday the New Zealand High Court ruled that the raid was illegal and that the police's actions in sending closed copies of his hard drives to the USA at the behest of the FBI was unlawful. Apparently the judicial review has determined that the warrants were too wide in scope, led to the seizure of irrelevant material, and sent seized material out of the country without the accused's consent, leaving the door open for a possible compensation claim by Mr. Dotcom. The ruling is just the latest setback for the US government, which has been hoping to set a number of precedents with its dramatic international action against the Megaupload file storage service. From the beginning there have been legal issues related to the taking down of the web service before a trial, and the seizure of millions of computer files that presumably have nothing to do with the copyright violations that were the ostensible reason for the crackdown in the first place. Now, as the tactics of the police and the possible overstepping of authority begins to come out in the court process, it's looking less and less clear if the US will be able to set the precedents they are looking for in the fight to make the abandoned SOPA and PIPA legislation a de facto on-the-ground reality. We have already seen the Department of Homeland Security getting into the act by seizing hundreds of domain names over the past two years, allegedly for intellectual property violations and other offenses. Time and again, the DHS has been found to have acted hamfistedly, “accidentally” closing down 82,000 perfectly legal websites in one particularly egregious incident of 'act first, ask questions later.' Americans who are concerned with this new era of guilty-until-proven-innocent web monitoring have the New Zealand government to thank for putting some sort of brake on the process. The Megaupload trial itself, of course, will continue to drag on for years.
And so it is that just as taxation is the power to destroy (even if not in the way that statement was originally intended), perhaps, too, we can come to understand that the authority of the judicial branch itself carries the power to destroy: The power to destroy individual freedoms. The power to destroy the lives of those who have been used as lab rats by governments of yesteryear. The power to destroy websites and free speech online. At least now we know why judges wield a gavel.