To Supreme Court Justice Roberts – And ACA

An Open Letter

To the Honorable Chief Justice Roberts

United States Supreme Court

Washington, D.C.

Affordable Care Act

Edited and added to: 11/27/2012

Note: Sorry for the length, every time I read this I think of more points to include.


Having read over ACA opinion, I at first felt the weight of disappointment.  Then I reflected on your closing statement, “But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”  Knowing that a majority of the people are apposed to this attempt by the government to extend their control over the people, I saw this as an “escape clause” for the left side of the Court trying to appease both sides of the political spectrum.  However, when you interject, “It is not our job to protect the people from the consequences of their political choices.”;  it does not relieve the Court from its responsibility to protect the American citizen from a run-away Congress and secure to the people their natural rights which, again, this legislation is seeking to control

I surmised that you had hoped that it would help the Romney/Ryan ticket, thinking that this majority who were against the ACA would turn to the republican ticket to do away with the Act.  Unfortunately, that didn’t happen and we will have to continue for another four years of pain.  There would have been less pain if the Court would have ruled correctly and tossed out this health care program instead of trying to make it sound constitutional when in fact it was defective and against the basic principles at the foundation of our Constitution.

In these two comments the majority seems to fall into the common misunderstanding, that this Nation was organized as a “democracy”.  Nothing could be further from the truth.  They say that if you tell a lie long enough and often enough, people will begin to believe it.  The simple truth is that this nation was founded upon the principles of Republicanism.  Under this form of government, it is the duty of the judicial system to protect the natural rights of the people.  In this case to protect the minority from the majority.  We are not a “democracy”!!  ”  “Democracy passes into despotism.”  Plato;  “Democracy is the road to socialism.”  Karl Marx

“Hence it is, that such Democracies have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths.  Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”  The Federalist, Madison, No. 10.  Mr. Rand “observed that the general object was to provide a cure for the evils under which the U.S. labored; that in tracing these evils to their origin every man had found it is the turbulence and follies of democracy: . . .”  (Notes of the Debates in the Federal Convention of 1787, Madison, p. 42)

The people require of the Congress to protect and secure our rights.  Failing to do this it is incumbent upon the Courts to oversee this assignment from the Constitution.  The Court’s action in this matter appear to be contrary to what you quoted from Justice Marshall in Marbury v. Madison, at 175-176;  “And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits.”  Congress and the President have transgressed those limits.  With this decision, it appears that the Court is assisting them.

As to the text of your reasoning and the conclusions reached by the majority, I agree with the rejection of the commerce clause as support for the Act.  I also agree that the Federal government being a creation of the States and the people in particular, therefore have no authority to compel the States to fall inline with federal mandates.

As to the mandate to compel individual “sovereigns” to fall inline with the provisions of the Act, I find problems.  First and foremost, the creation cannot exceed the creator and when you stand the people up against the government, who, in their own right are both sovereigns, it is the people who are sovereign [superior] over government. “The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; . . .” McCullock at 429.  Justice Marshall is discussing the State, but the principle is applicable to all objects. Remember that our natural rights are not subject to the vote and depend on no election. [West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); affirmed in Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713 (1964)]

I personally do not agree with the Court’s finding that Congress, calling the shared responsibility payment against the sovereign a “penalty”, an error and in order to save the President, the Court defining it to be a “tax”.  I didn’t know that it is within the scope of the Court to rewrite legislation, supporting the Act as being within the “taxing” power of Congress to impose the Act.  What Congress said, Congress meant.  In the Court’s opinion you have stated, “[i]t is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other.”  Maybe the Congress can’t, but the Court can?  I am not sure how the Court defines “penalty”, but this is what Congress intended.  This is how Black’s Law Dictionary defines a penalty, (among others): “A penalty is a sum of money which the law exacts payment of by way of punishment for doing some act which is prohibited or for not doing some act which is required to be done.”  The definition fits the intent of Congress.

Contrary to the above definition, a tax is completely different.  Again consulting Black’s Law Dictionary, a tax is, among a multitude of other meanings, is “a ratable portion of the produce of the property and labor of the individual citizens, taken by the nation, in the exercise of its sovereign rights, . . . for . . . legitimate functions of the [government].”  Looking at this and the terms used, the agency imposing the “tax” must be the “sovereign” and the monies taken must be for the “legitimate functions” of government.  All through in Section 5000A, Congress refers to this exaction as a “Penalty” not a tax.  As to the status of government being “sovereign” I have discussed and that can be set aside.  Now as to the legitimacy of the Act we can look at.

By endorsing the ACA, the Court is expanding the powers of Congress and the President far beyond what Chief Justice Marshall reasoned in McCullock at 421, forgetting that acts of Congress MUST be consistent with the letter and spirit of the Constitution.  This Act is way out in left field.  Again, the taxing authority of Congress IS limited and has been so declared by the Court from the start.  “There is no such thing in the theory of our national government as unlimited power of taxation in Congress. There are limitations of its powers arising out of the essential nature of all free government; there are reservations of individual rights, without which society could not exist, and which are respected by every government. The right of taxation is subject to these limitations.”  (Loan Associates v. Topeka, 20 Wallace 655)  Don’t we have a “natural right” to chose not to have insurance?

Health insurance is a good thing and has saved my bacon several times.  However, my feelings do not allow me to compel my neighbor to go out and purchase insurance.  Under the principle of “delegation of authority”, which is fundamental to republicanism, if I can’t do it, I can’t give to another the right to compel such action.  “[I]t presents at the threshold the question whether any such act on the part of the Federal Government is warranted and sanctioned by the Constitution, . . .

“The decision upon the principle in any one case determines it for the whole class. The question presented, therefore, clearly is upon the constitutionality and propriety of the Federal Government assuming to enter into a novel and vast field of legislation, namely, that of providing for the care and support of all those among the people of the United States who by any form of calamity become fit objects of public philanthropy.

“I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States.”  President Franklin Pierce to the Senate, May 3, 1854.

Joseph Sobran spoke to this health care issue back during the Clinton administration noting that, “[t]he Constitution does two things. First, it delegates certain enumerated powers to the federal government. Second, it separates those powers among the three branches. Most people understand the secondary principle of the separation of powers. But they don’t grasp the primary idea of delegated and enumerated powers. . . . .”

“. . . . We have recently had a big national debate over national health care. Advocates and opponents argued long and loud over whether it could work, what was fair, how to pay for it, and so forth. But almost nobody raised the basic issue: Where does the federal government get the power to legislate in this area? The answer is: Nowhere. The Constitution lists 18 specific legislative powers of Congress, and not a one of them covers national health care.

As a matter of fact, none of the delegated powers of Congress ― and delegated is always the key word . . . .  The Declaration of Independence, which underlies the Constitution, holds that the rights of the people come from God, and that the powers of the government come from the people. Let me repeat that: According to the Declaration of Independence, the rights of the people come from God, and the powers of the government come from the people. Unless you grasp this basic order of things, you’ll have a hard time understanding the Constitution.  (How Tyranny Came to America,)

This principle keeps coming back to haunt the government by pointing out the problem is still with us today and that is the “primary idea of delegated . . . powers.”  Going back to that principle I research a few authorities and the comments were mostly about delegation between the three branches of government missing the fundamental feature and that is; “Whenever government is doing anything that is forbidden to the citizen, that function is illegitimate, according to our theory of government. . . . Our government is founded squarely on this ‘theory of delegation’. One cannot delegate what he doesn’t have.” [Dean Russell, Letter to Compiler, March 19, 1964]  From the Court on delegation; “The right never existed, and the question whether it has been surrendered, can not arise.” (M’Cullock vs. Maryland, supra., at p. 431)  Have we forgotten what it means?  I hope we can leave this principle, but only if the government understands it.  If not then WE as the PEOPLE need to force it into the main.

Back to the tax label, as often as the Marshall Court’s opinion in McCullock is quoted in this decision, it never amazes me that the most crucial principle respecting taxation found in Justice Marshall’s remarks, is missing here.  To bring it to your attention; “It may be objected to this definition, that the power of taxation is not confined to the people and property of a state. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.”  McCullock, at 429.

Another part that I have a problem with is the Court’s declaration calling this tax an “indirect” tax.  Now I know the Court did not directly name it that, however, there are two, and only two, classes of taxes, direct and indirect.  (Thomas v. U S, 192 U.S. 363 (1904)  For the most part you tried to explain why the penalty tax was not direct in nature concluding “[t]he shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”  Pardon me, but all direct taxes MUST be apportioned;  NO exception!  This left the only other option, placing the “shared responsibility payment” in the class of indirect taxes.

By identifying this payment as being indirect, there are several problems that previous have Courts have pointed out.  For one,  “. . . indirect taxes are levied upon the happening of an event or an exchange.’  [Justice White, Knowlton v. Moore,  178 U.S. 41 (1900)]  “In other words,  (indirect) tax is imposed upon the doing of business of the character described,  . . .”  [Flint v. Stone Tracy Co., 220 U.S. 107  (1911)]

Also, an indirect tax is one that can be passed on to a third party who is responsible to pay the tax. “Ordinarily, all taxes paid primarily by persons who can shift the burden upon some one else, or who are under no legal compulsion to pay them, are considered indirect taxes; but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such estates, and the payment of which cannot be avoided, are direct taxes.”  [Pollock vs. Farmers’ Loan and Trust, 157 U.S. 429, 557, 558]  The “shared responsibility payment” falls directly on the sovereign and can not be shifted to another.  By the Court’s own definition, this tax is direct.

The Court’s opinion reads like the majority has found that “hitherto unknown power of taxation” spoken of by the Court in the Brushaber decision. (240 U.S. 1 at 11)  Sometimes it is what the Court does not say that stands out and in this case when the Court said the penalty “. . . is thus not a direct tax that must be apportioned among the several States.”  Do you mean that this is a “direct” relieved from the rule of apportionment?  If so then it could be taken to mean that the Court has found the “unknown power of taxation.”  However, then Chief Justice White clearly addressed that contention “. . . that the Amendment treats a tax on income as a direct tax although it is relieved from apportionment and is necessarily therefore not subject to the rule of uniformity as such rule only applies to taxes which are not direct, thus destroying the two great classifications which have been recognized and enforced from the beginning, is also wholly without foundation.”  (Brushaber, at 18)

The purpose of government can not be under estimated; “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men. . . .”

Justice Field expands on this;  “As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the declaration of independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident’-that is, so plain that their truth is recognized upon their mere statement-‘that all men are endowed’-not by edicts of emperors, or decrees of parliament, or acts of congress, but ‘by their Creator with certain inalienable rights.’-that is, rights which cannot be bartered away, or given away, or taken away, except in punishment of crime, ‘and that among these are life, liberty, and the pursuit of happiness; and to secure these’-not grant them, but secure them- ‘governments are instituted among men, deriving their just powers from the consent of the governed.” Butcher’s Union Co. V. Crescent City, 111 U.S. 746

This Court has lost sight of its responsibility by approving this Act of Congress.  The rights of the sovereign people, protected by the First, Ninth and Tenth Amendments, have been violated with the approval of the Court.  Not only the rights referred to here but many other natural rights.  Just because the Constitution makes reference to certain rights does not exclude others retained as mentioned in the Ninth Amendment.  The “necessary and proper” does not give the government an avenue to trample on the right of the people.  It commands that it must be “necessary”  and also “proper”.  Also,  “. . .  for carrying into Execution the powers enumerated in the Constitution.”  Art. I, §8, cl. 18  Personally, I do not read ANY such “power[s] enumerated”.

Is it possible that the Court sees something in the spending clause that justifies approval of the ACA.  Unfortunately, the spending clause “for the general welfare” has been misused.  Since Hamilton and Madison commentators from the beginning have been at odds on the meaning of the spending clause.  I lean to Madison;  “Some who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution on the language in which it is defined.  It has been urged and echoed, that the power “to lay and collect taxes, . . ., to pay the debts and provide for the . . . general welfare . . . ,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the . . . general welfare.  No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.

“Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expression just cited, the authors of the objection might have had some colour for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.”  (Madison, The Federalist, No. 41)  Nothing in the Constitution can be construed to justify the Affordable Care Act.  When understanding this difference it is important to keep in mind the fundamental principle discussed earlier, that of delegation of authority.  President Pierce’s comments were noted earlier.  Two other prominent leaders spoke to this charity complex, President Grover Cleveland; “I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that though the people support the Government the Government should not support the people.”  Veto Message to the House of Representatives, February 16, 1887.  Didn’t President Kennedy say something along these lines?  “Ask not what the country can do for you.  Ask what you can do for the country.”

Colonel David Crockett, Rep. from Tennessee speaking before Congress; “Mr. Speaker–I have as much respect for the memory of the deceased, and as much sympathy for the suffering of the living, if there be, as any man in this House, but we must not permit our respect for the dead or our sympathy for part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has not the power to appropriate this money as an act of charity. Every member on this floor knows it.

“We have the right as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right to appropriate a dollar of the public money.”

Colonel Crockett then relates an experience with a farmer who reminded him of his responsibility in Congress.  “It is not the amount, Colonel, that I complain of; it is the principle. In the first place, the government ought to have in the Treasury no more than enough for its legitimate purposes. But that has nothing with the question. The power of collecting and disbursing money at pleasure is the most dangerous power that can be entrusted to man, particularly under our system of collecting revenue by a tariff, which reaches every man in the country, no matter how poor he may be, and the poorer he is the more he pays in proportion to his means.

“What is worse, it presses upon him without his knowledge where the weight centers, for there is not a man in the United States who can ever guess how much he pays to the government. So you see, that while you are contributing to relieve one, you are drawing it from thousands who are even worse off than he. . . .   No, Colonel, Congress has no right to give charity.”  (Not Yours to Give, Walter E. Williams, Feb 9, 2005)

The Affordable Care Act has good intensions, however, “the road to hell is paved with good intensions.”  One of those pavers is the individual mandate compelling citizens to buy insurance.  This really sounds like a “bail out” for the insurance companies.  Now it might be argued that the ACA is not supported by the government, yet the same ideal were put forth to support Social Security and Medicare, yet these programs are on the verge of collapse and are bailed out with tax revenues from the people.  Not to mention the seven-hundred or so billions of dollars said to be taken from Medicare to fund this program.

This whole conflict between the two sides tilts on the principle discussed earlier, that of delegation of authority.   As Alexander Hamilton expressed it, “[i]t has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. …  It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants.  Here in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations, ‘We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.’  …

“…  For why declare that things shall not be done which there is no power to do?  Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”  (The Federalist, No. 84)  It is interesting to note that this expression by Hamilton seems to conflict his position on the spending clause and support more of what Madison contended for.  It begs the question, why is Congress wasting time and money on the ACA when they have no power to do so?  Is this a “necessary and proper” area for Congress to be engaged?  After meeting the necessary expenses of government and if Congress had excess funds in the treasury, then “general welfare” issues could be considered.  Right now Congress has to borrow money from outside sources to fund their projects and foreign wars.

Justice O’Connor explained this in part that; “Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause, Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment.”  (New York v. U.S., 505 U.S. 144, 156)  I would extend this principle to say that may have power to fund the ACA and impose the individual mandate, but Congress is constrained by the natural rights and their limited delegated authority.  The Roberts Court needs to reexamine this decision and make itself clear as to just what kind of “tax” this penalty is that they created.

I appreciate that the Court has spent a great deal of time and effort putting this opinion together spinning it to the left.  I am sure you can see the errors that are making their way to the front.  No matter how the majority tries to spin this, an error is an error, and sets a bad precedent that will echo in time.  If let to stand will effect future decisions of the Court and lead this Honorable Court in the wrong direction.  The Court, led by your Honor, has a duty to correct this immediately.  Right now as it exists, it is a black mark on the Court.


Loral Glazier


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