Obamacare vs. DOMA: Supreme Court Poised for Ultimate Power Grab Predicted in 1788

by Brian Swan
I’ve been sitting back watching all the legal and emotional arguments over the gay marriage cases and have been mostly silent on the issue. But I now see it important to voice my opinion on the matter; not on the substance of the issue, but the form. In order to derive at my conclusion on the Defense of Marriage Act (DOMA) lawsuit, an explanation of the Obamacare decision is necessary. It might sound strange up front to compare Obamacare with DOMA, but you’ll see that the Supreme Court’s handling of these two cases is setting the stage for a judicial assault on liberty.
In 2012 the Supreme Court handed down the Obamacare decision. NFIB v. Sebelius, 132 S. Ct. 2566 (2012). NFIB involved the constitutionality of a federal statute–The Affordable Care Act. The DOMA case, U.S. v. Windsor, also involved a federal statute–The Defense of Marriage Act. Strictly from a logical standpoint in comparing the two cases, the DOMA case should give rise to a grave concern regarding the fundamental bedrock of our government—checked power.

In NFIB, the Court examined several questions, but I’m honing in on one for this article: if the Affordable Care Act was constitutional, under what constitutional power may it be effected? We all know that the Court deemed the law constitutional under congress’s taxing power, but this was problematic. A taxing statute cannot be challenged in court until after it goes into effect (the Anti-Injunction Act), and the Obamacare mandate does not go into effect until 2014. Therefore, to even address the merits of the lawsuit, the Court had to declare that the law was not a tax . . . which it did. NFIB at 2584.
After it was said to not be a tax in order to avoid the Anti-Injunction Act, the Court declared that when it comes to federal statutes, the Court owes “full measure of deference” to congress and “must” give a statute every possible reading to ‘save it from unconstitutionality.’ NFIB at 2594. The Court then went on to hold that, “[t]he Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.” NFIB at 2601.

See the logical problem here? To survive the Anti-Injunction Act, Obamacare may not be read as a tax, but because reading it as a tax is the only way it can pass constitutional muster . . . it must so be read.
Okay, fine. If the Court decides that deference must be given to the government to such a degree that logical gymnastics are required for statutes to be read constitutional, then that same court should maintain the same integrity with all other federal statutes, correct?
As a matter of logic, precedent, and judicial integrity the Supreme Court should perform the same extraordinary mental feats to preserve DOMA, should they not? If they don’t, the Supreme Court’s integrity in adhering to precedent will be lost and the Anti-Federalist, Brutus, will be vindicated and correct in his criticism of the Judiciary’s power, which he penned in Anti-Federalist No. 11 back in 1788. If the Supreme Court does not have a constitutional check on its rulings of statutes’ constitutionality, then the only check on its powers comes by way of its own self-restraint. And where integrity is absent, self-restraint cannot exist. Without a self-restrained judiciary we become dangerously close to tyranny in the disguise of a republic.


In NFIB, the Court made it clear that if the people don’t like Obamacare, they have the democratic powers to vote their representatives out of office and elect new representatives in to repeal it; specifically, the Court said, “It is not our job to protect the people from the consequences of their political choices.” NFIB at 2579. So, how is it that the Court should suddenly decide to protect the people from the consequences of their political choices? Can the people not elect new representatives in next election to repeal DOMA? Or did that only apply to Obamacare?
If you sift out all of the emotion behind the Windsor case, Americans–both liberal and conservative–should recognize the inherent danger at stake. Gay marriage might be an important issue, but should DOMA be struck down a dangerous legal problem will be born: a judiciary that may decide on its own when to use fractured logic in order to uphold or strike down federal statutes. Such a judiciary has no constitutional check except appointment, which would necessarily take a lifetime to effect. Instead of following the rule of law, an unchecked judiciary will be able to decide the freedom of Americans on a caprice cloaked in malfunctioning logic and predicated on their own personal ideologies. True, the Court has a history of striking down and upholding federal statutes, however, those precedents and that power has never been enacted under what is now the law, legal precedent, and faulty reasoning of NFIB.

And remember for the future, precedent for such judicial activism can cut both ways. The words of Chief Justice Roberts in NFIB now serve as a legal base to uphold and give unblinking deference to congress no matter which party controls it. For this, DOMA should be upheld on that same legal foundation that Obamacare was; and if the people don’t like it, they may seek restitution through the election process. If DOMA is not upheld, the precedents will stand that, when it comes to federal statutes in question, the judiciary may decide when to bankrupt logic and precedent and when not to. The law will become a matter of personal policy rather than legal adherence, and we will have the very judiciary that Brutus warned of over 200 years ago.