A couple of days have gone by since the Obamacare SCOTUS decision, during which we have been treated — if that word can be used without doing violence to the English language — to the spectacle of the usual suspects, the assorted academics and other intellectual grandees, jumping through semantic hoops, explaining one of two remarkable propositions to the Great Unwashed: (a) that a penalty is actually a tax, which is another way of saying that a creature that looks like duck, quacks like a duck, and waddles like duck is really an ostrich, and (b) how losing a big landmark case before the U.S. Supreme Court is really a grand strategic victory. And whichever of these two odd propositions they espouse, what a genius Chief Justice John Roberts is, for being able to pull this political rabbit out of his doctrinal hat.
The basic fallacy of these folks’ arguments is the assumption that SCOTUS will be vigilant and consistent in future cases in curbing the excesses of the Commerce Clause, and cautious in applying this newfangled when-is-a-penalty-a-tax notion. Not necessarily. There is a lesson to be learned from the court’s recent treatment of eminent domain law.
A scant eight years ago, SCOTUS announced that property rights and the Takings Clause that protects them are every bit as good as the revered freedom of speech protected by the First Amendment, and are not the law’s “poor relation.” Dolan v. City of Tigard, 512 U.S. 374, 292 (1994). Sure sounded good. But look at what happened shortly thereafter — property rights became not a poor but a destitute relation, and are not being enforced either by SCOTUS or by the lower federal courts. In fact, after the notorious San Remo Hotel case, property rights became the only species of constitutional “rights” whose conceded violation does not entitle their ostensible beneficiaries to judicial consideration on the merits as of right or at all — not in state courts and certainly not in federal courts. See San Remo Hotel v. San Francisco, 545 U.S. 323, at 342 (2005), Rehnqist C.J., O’Connor, J., Kennedy, J. and Thomas, J. concurring, but noting the resulting anomaly in constitutional law. There is a lesson in that, but we are willing to bet you a fine nickel cigar that the aforemetioned intellectual grandees will not deign to consider it as having any merit. We would sure like to be wrong on that one, but reality and harsh experience are not to be denied.