A Lawyer Evaluates Supreme Court Decision

A Lawyer Evaluates Supreme Court Decision July 2, 2012

American Christians and the Health Care Decision

David Opderbeck is Professor of Law and Director of the Gibbons Institute of Law, Science & Technology at Seton Hall University Law School.  He is also a doctoral candidate in philosophical theology at the University of Nottingham.

Thursday last week the U.S. Supreme Court issued its decision in National Federation of Independent Business v. Sebelius – the health care law case.  Not surprisingly, the talk shows, the newspapers, the blogosphere, Twitter, Facebook, and every other imaginable outlet are lit up with comments and arguments.  What should Christians think about this case?

I will offer some thoughts about how I think Christians should think about it. But first, and perhaps most importantly, I’d like to suggest that there is no single position that can be called the Christian view on this particular case.  It’s a complex issue in terms of economics, social policy, history, and the law.  Let’s try to give each other the freedom to express nuanced opinions on these difficult questions.

There are at least two common themes running through much of the Christian commentary on the decision.  On the right, the view is that the Court’s decision, as well as the law itself, represents a threat to freedom.  For example, here is something posted on the Trinity Forum’s Facebook page, from TTF Trustee Edwin Meese:

The Court was correct to find that Congress does not have the authority to compel purchases under the Commerce Clause.  But it erred in contorting the statute to declare the penalty a tax.  And the fact that the Court decided to allow this abuse under the government’s taxing authority, not the Commerce Clause, doesn’t change the fact that individual freedom has been dealt a serious blow.

On the left, the decision, and the law itself, are viewed as an important victory for justice.  Here is Jim Wallis of Sojourners:   “This is an important victory for millions of uninsured people in our country and ultimately a triumph of the common good.”  Nevertheless, Wallis qualifies his praise:

While I believe the decision is reason to celebrate, it doesn’t mean that this legislation is somehow the flawless will of God; it is an important step in expanding health care coverage and reducing long term costs, but it still is not perfect and more work is yet to be done.

The U.S. Conference of Catholic Bishops opposed aspects of the law but did not ever argue for its repeal.  Their concerns about the law were not based on the notion of universal health care itself, which is something Catholic Social Teaching supports (or at least can be read to support).  Rather, the Bishops are concerned that the law that seems to support abortion, compromises rights of conscientious objectors, and does not provide adequately for immigrants.  In their statement on the Court’s decision, the Bishops conclude:

Following enactment of ACA, the U.S. Conference of Catholic Bishops (USCCB) has not joined in efforts to repeal the law in its entirety, and we do not do so today.  The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct the fundamental flaws described above.  We therefore continue to urge Congress to pass, and the Administration to sign, legislation to fix those flaws.

Before I offer my thoughts on these varying representative perspectives, let me step back and note once again that each of them represents good faith efforts to think Christianly about the Court’s decision.  The fact that they finally offer different visions of the end result should give us pause before we argue that there is only one faithful way to think about it.

That said, from my own perspective, the Trinity Forum / Edwin Meese comment is the most theologically problematic of the three I’ve referenced.  Even more problematic, I think, are the more extreme libertarian critiques of the law heard in many outlets.  Meese’s comment is at least measured in tone, which is not the case with much of the libertarian rhetoric that feeds into what many Christians have said and are saying about “Obamacare.”  How quickly does the dreaded “s” word – “socialism” – arise in many of these comments?

I wonder when “individual freedom” became the sine qua non for Christian social ethics about health care? It seems to me that Christians of all people should be willing to sacrifice some of their “individual freedom” in order to ensure that everyone, particularly “the least of these,” has access to health care.  In scriptural and Christian theological terms, true “freedom” is not libertarian license, but rather is the full participation of a person in God’s self-giving love.  And true “freedom” is never about isolated individuals – as God is a Triune community, so we as human beings can only be truly “free” in community.

Of course, even if we agree that Christians should be willing to give up some “individual freedom” to facilitate health care for others – or, perhaps better, that Christian freedom means moving beyond selfishness —  the question remains whether such care should be provided through government, through private associations, through Churches, through families, and so on.  There is a long and tangled tradition of Christian political theology on all of these questions – and, at least in my opinion, there is no simple right answer.  It isn’t enough here merely to refer to “sphere sovereignty” or “subsidiarity,” just as it isn’t enough merely to refer to the immanent “peaceable Kingdom.”  I do think some ways of working through this are much better than others, but these are the subjects of long and carefully worked out philosophies that can’t be reduced to sound bites.  (For a flavor of what I think is a wonderful example of contemporary Christian political theology regarding public goods and markets in areas such as health care, see Pope Benedict’s Encyclical Caritas in Veritate).

From my perspective there is less to criticize in Wallis’ comment on the decision.  Nevertheless, I would much more significantly qualify my enthusiasm for the result because of Justice Roberts’ reasoning on the taxing power.  In fact, ultimately I think it’s a poorly reasoned judicial opinion that opens a can of worms concerning what the government can call a “tax.” It seems to me troublesome development that the Constitution’s taxing power can extend to a choice not to buy a product – a choice not to act.  I don’t want to pay taxes, for example, for choosing not to buy a car or a bicycle or broccoli.  This really does seem to expand the government’s economic power in ways I find troubling.

While “individual freedom,” in libertarian terms, is not the central concern (as I see it) of Christian social ethics, nevertheless the integrity of the person very much is a central concern.  And this does mean that persons, not States, finally are the basic subject of politics, and that freedoms of the person and of private associations of persons are of basic importance.  An essential function of any just political structure therefore must be to hold the State’s power in check through the rule of law.  Whether the majority or the liberal-wing dissenters in the Sebelius case were right about the commerce clause issue – itself a legally and historically complex question — I believe the commerce clause should have been the basis for the decision rather than the taxing power. In my view, the payments required for uninsured persons under the individual mandate clearly are a “penalty,” not a “tax,” and therefore they should stand or fall as an exercise of federal governmental power under the commerce clause.

Given my reference to Pope Benedict’s Caritas in Veritate, it’s perhaps not surprising that I personally find the USCCB statement about the Court’s ruling the most appropriate of the three I’ve referenced.  In my view, Christians should desire that all persons have access to decent health care, and markets alone cannot meet this goal either from a moral or a pragmatic perspective.  A Christian social ethic therefore should recognize that it is a necessary and appropriate function of government to facilitate universal access to healthcare. However, where “healthcare” includes things like elective abortions, which raise serious moral concerns for many persons and religious associations, appropriate exemptions should be included.  And I fully agree with the U.S. Bishops that, particularly from a Christian perspective of welcome, immigration reform is essential, not least as in relation to education and healthcare.

So, I don’t have a final answer concerning how Christians should thing about the Sebelius case and the health care law.  I hope, however, that we can try to think about it in more careful and theologically nuanced terms than usually surface in popular debates.



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  • DRT

    I agree with your Christian interpretation, but am still not convinced by the tax/not tax argument. I have not read Robert’s decision.

    If it was framed up as, the government will buy it for everyone but gives you the option to buy it for yourself (to maintain liberty) as long as you show that you bought it, does that help?

    The closest analogy I can think of is not dealing with the government at all, and that is like private mortgage insurance. It is part of your agreement with a bank to carry it, and if you do not then they buy it for you and charge you for it.

    And, conservatively speaking, if it is a tax and all they had to do was call it something else to get around it being treated as a tax then we would have had a worse problem.

  • I was blessed to be with Paul Clement last week and hear him discuss the decision. He too was perplexed by the “tax”. My own opinion is that the bill is beyond the enumerated powers of Congress and is therefore unconstitutional. But I also agree that Christians should sacrifice for the poor but believe government action is the worst way to do so. I would encourage my fellow Christians to read Milton Friedman’s arguments on 1st, 2nd and 3rd party purchases. Thanks for the breakdown, David.

  • MD

    it seems to me that “it is part of your agreement with a bank to carry it” pretty much undermines the analogy. how do you see it differently from me?

    “A Christian social ethic therefore should recognize that it is a necessary and appropriate function of government to facilitate universal access to healthcare.”
    Don’t all have “access” to health care? What determines “access?”
    Do we hall have the RIGHT to receive food, housing, education and health care from the government? Then why not a car, a computer, a TV, or even a vacation?
    Within your approach, do we factor in character and personal responsibility, or do we simply provide these “rights” by legal code?

  • David O.

    Thanks for this very helpful post. I do have a question for you if you have time to answer it.

    You mention your concern over seeing the individual mandate penalty as a tax since it suggests we are being taxed for something we do not buy. I too have a concern over that but I also have a concern for the same reason if the individual mandate had been upheld through the Commerce Clause. I do understand your point that the issue should have been decided there, but in my novice readings over the SCOTUS’ decisions over the years concerning the Commerce Clause, it appears as if those decisions have really enlarged Congress’ power over the states by gutting the Commerce Clause of much of its restrictive intent. If one can argue that a farmer growing wheat for his own purposes allows Congress to regulate it because such behavior falls under the Commerce Clause are we not on the road to gutting the Clause of any significant meaning? I don’t like slippery slope arguments, but had the individual mandate been upheld on the basis of the Commerce Clause would that not have been in effect the final nail in the coffin for the Commerce Clause as a check on the power of Congress?

    Your thoughts?

  • DRT

    MD, I am not so sure that undermines it.

    Congress enacted a law that says everyone will be covered by healthcare. As part of our agreement to live here we agree that we will live under the law. We have agreed to it.

  • dopderbeck

    Allan — you might notice that I dodged the commerce clause issue in this post! You’re right, it’s (IMHO) an incredibly tangled question, in terms of law, history, and policy. You reference one of the seminal cases — Wickard v. Filburn (1942). Wickard indeed suggests that the commerce power is very broad.

    But as the Wickard opinion recites, wheat is a national market, and the fluctuation of wheat prices has national implications. And the penalty was not on wheat for the farmer’s own use; it was on “marketing” the wheat in a manner that could affect market prices. As the opinion states: had Wickard “chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded. Such manner of consumption is not uncommon. Only when he threshed, and thereby made it a part of the bulk of wheat overhanging the market, did he become subject to penalty.”

    Is this analogous to not buying a product (health insurance)? I don’t know. Every one of us certainly participates at least generally in the health care market, and a choice not to buy insurance does affect national costs and prices.

    But, like you — even though I admit this is unfashionably “conservative” in many circles in which I run — I am uncomfortable extended the rationale of Wickard and later cases to abstaining. OTOH, colleagues of mine have pointed out to me that such act / omission distinctions are very difficult, if not impossible, to draw in other areas of the law (e.g., torts). And by analogy to moral theology, in our liturgies we often ask God to forgive us “for what we have done and what we have left undone.” Inaction can be a form of culpable action.

    So, my personal preference would be for a national plan without an individual mandate — but I think the legal issue can go either way.

  • dopderbeck

    MD (#3) — I would say that, clearly, not everyone has “access” to health care. Nor does everyone have “access” to swimming pools or flat screen TV’s. Access implies not just that the thing can be purchased, but that it is within a person’s means. Thus we speak of an “access to medicines” problem in developing countries — the drugs are being sold in those countries, but at prices per does that far exceed the average person’s yearly wage. That’s not “access.”

    Yes, I think a basic level of health care should be thought of as a basic human right. Or better (because I think “rights” talk can be problematic theologically) — I think the Christian ethic of love demands that we should desire that each person have access to a basic level of healthcare, and that we should as a society being willing to sacrifice to see that happen. When I say “as a society” that implies “government” — in a democracy, “we” are the government.

  • Albion

    I would encourage my fellow Christians to read Milton Friedman’s arguments on 1st, 2nd and 3rd party purchases.

    And then read William T. Cavanaugh’s Being Consumed for a critique of Friedman’s approach.

  • JKG


    Your definition in #7 of “access” is one that, as an engineer and not a legal professional, may have created misunderstandings for me. Technically, “access” always means that the service is available; having the means to complete the transaction is technically a separate consideration. This may explain some of my frustration trying to understand that perspective.

    It is not unimportant, either. Perhaps like you, I have been saddened by the anger and language on both sides of the health care insurance issue. I do not know if we will be able to find a way forward that both provides the means for everyone to access the healthcare they need, and to allow citizens the freedom to opt out of health care insurance groups. If someone wants to “self-insure”, should they not be allowed to do so?

  • dopderbeck

    JKG (#9) — the question for me would be what would “self insure” mean? If it means not having the resources to cover emergency care and/or catastrophic illness, such that the costs of that care / illness become externalities (i.e. become costs others have to bear), then I would say no. But that isn’t really “self-insurance” — it’s shifting the cost to others (imposing an externality). The classic regulatory response to externalities is to impose taxes or penalties that force parties to “internalize” the externality — that is, to bear the real costs of their conduct, including costs that otherwise would be shifted to others. That’s what the present law purports to do.

    Real self-insurance involves setting aside a pool of money sufficient to cover reasonably anticipated risks. Businesses that self-insure for certain kinds of risks have capital available for this purpose and usually set up special restricted accounts. I don’t think too many regular Americans have the wherewithal to do this sort of thing. Personally, I have a hard enough time setting money aside to buy Christmas presents, never mind the actuarial possibility that in any given year, as I age, I might have to deal with something like cancer…

  • T


    Great post. It is an amazing opinion on so many fronts. I have to agree with your analysis.

    I think where you will get pushback from the right is that too many think/assume that some softened version of libertarianism is *the* Christian/biblical theory of government. Once that paradigm has had time to cement, regardless of its weak theological basis, it is next to impossible to discuss anything “Christian” if its not also libertarian, which is unfortunate.

    As one who was once very drawn to libertarianism, one of the flaws that eventually led me away from it was its foundation of personal (individual) rights, including individual property rights. The libertarian has individual property rights as the foundation of justice vis a vis other people and even government. But the problem with this is that all personal property rights are created both via grace from others, including God, but also injustice, and not merely personal merit. How much wealth in the US, a relatively young country, has injustice in its history, sometimes quite severe? The rights to this land alone stand on outright bloody injustice. We used might to make right, *then* we declare that property rights must be respected, almost as holy. As just one example, the Native American reserves that continue to stand today ought to give us a little pause about how holy individual property rights in this country really should be, and every country has the same issue. Even the practical necessity of statutes of limitations undermines, in my mind, the idea that property rights of individuals ought to be held as nearly unlimited.

    Given this foundation of grace and injustice, I don’t advocate that individual property rights should be abolished at all, but I do advocate that they should be humbly held, and properly subject to limits for the good of all.

  • JKG

    David, this makes sense and I understand the “self-insurance” concept. I do think that some people would be willing and able to do this, but its success as an option would then be predicated on how much risk to assume in the coverage. That in turn raises other questions:

    (1) How are individual responsibility and accountability for one’s own health figured into the system? In other words, how do we discourage abuse of the health care system and insurance by those who want the care but who do not physically and mentally take care of themselves?

    (2) How do we allow people to opt out entirely? There are people–my father in his last years, for example–who do not want anyone supervising their health for them, or want any emergency relief.

  • dopderbeck

    T (#11) — Amen!

    JKG (#12) — yes — both difficult questions. I’m not sure about #1. For example, do you impose penalties on people who eat at McDonald’s seven days a week and thereby become obese and diabetic? Does that race race and class issues if some people can only afford to eat at McDonald’s? No easy answers.

    On #2 — you’re raising the “death panel” specter. Who decides what counts as “emergency” relief, and whether such relief should be withheld? Should a 95 year old person receive a very expensive course of chemotherapy that might extend his life six months? Should a 75 year old person who has been ill for 10 years with MS be permitted to end her own life through assisted suicide? Who should say? The reality is that our semi-private health care insurance system already makes some such rationing decisions through managed care; and for those who wish to opt out of certain kinds of care most states allow various forms of advanced directives (though usually drawing lines at “suicide”). No matter what sort of system we adopt, I think there’s no avoiding these kinds of decisions.

  • Brian W

    I, too, get nervous when people champion their own individual rights and freedoms; that’s usually a red flag. Yet, Paul champions other people’s freedom in Christ vigorously in the scriptures. He clearly states that he’s going to use his freedoms in Christ to bless others, but he labels those who want to impose on others certain practices as weak.

    Ultimately, we don’t know Meese’s (or others) motivation in working hard for individual liberty; it might be all for selfish reasons. Even so, the Apostle Paul wanted to win others to a life of sacrifice through reminding people of the gospel of Jesus Christ and not through force.

  • JKG


    My second point in #12 was not actually about choices others might make for an individual (“death panels”), but about allowing people to make their own decisions to not participate in the system. As I noted, my own father wanted nothing to do with the system. He chose not to seek care, or even to actively refute it, rather than give up the way he chose to live and die. How does a mandate to participate (or a tax on non-participation) allow that choice?

  • dopderbeck

    JKG (#15) – the fact that you have insurance doesn’t necessarily mean you have to receive the care covered by the insurance. That’s part of what an advance directive does – you can execute a legally binding agreement that requires family members and care providers not to use extraordinary measures to keep you alive, etc. There are legal limits on this in most states, of course (assisted suicide).

    Now, are you asking whether, beyond an end of life advance directive, a person should be able to refuse all health care? I see a bunch of problems with that. Simply in economic terms, this would impose a cost on the rest of society: you will likely suffer some otherwise curable injury or illness, and society will lose the benefit of your productivity. You will be consuming other social resources and not contributing fully to the common good. In psychological and moral terms, this raises questions about whether a person who refuses all health care is really mentally competent, or is suffering from depression or some other underlying condition that impacts judgment.

    Maybe it boils down to this: should an individual be free to live totally “off the grid,” receiving no benefits from and incurring no obligations to others in society? I don’t think this is even possible (even people living “off the grid” benefit from public goods such as security and defense), but if it were, I think the answer would be “no.” We are made to live in societies; societies imply some mutual obligations.

  • The semantics of how we classify the bill whether as tax or penalty is likely somewhat of a moot issue in the big picture scheme. Electively it is whether we as a collective nation through our various governing process allow either one to some degree. We essentially continually massage the Constitution whether the Constitution purest agree or not. That makes it a dynamic and living constitution instead of one that isn’t easily malleable. It is what the people at a particular place in time want and allow at the moment but subject to change as it continues. Flexibility is needed IMO to adapt to needs of society at large but unfortunately we have an imperfect approach that leaves a lot to be desired also. So we muddle through these issues sometimes helping matters and sometimes making them worse.

    The idea is that over time we should be progressing somehow. I think as we look back over the US history we have made strides that better the overall conditions for the residents but we all know that you have to be careful economically or you can kill the Golden goose. Perhaps at times we irresponsibly start gnawing on the Goose’s flesh instead of settling for her eggs. As someone once said this requires Wisdom. 🙂

  • John McCauslin

    One way to understand the mandate/penalty as a tax is to understand that all taxpayers are to pay a tax of 1% of their income to fund the national health system, however if you have private health insurance then you are excepted from the tax.

  • Ernie

    “It seems to me troublesome development that the Constitution’s taxing power can extend to a choice not to buy a product – a choice not to act. I don’t want to pay taxes, for example, for choosing not to buy a car or a bicycle or broccoli.”

    The tax code is filled with exemptions and deductions for things purchased or obtained, and a deduction for purchasing something is no different than a tax penalty for not purchasing it. I pay more taxes if I choose not to purchase energy efficient upgrades to my home, or choose not to give a donation, or choose not to put money in a retirement account or health savings account.

  • Fish

    You pay more taxes if you choose not to buy a home. You pay more taxes if you choose not to invest in tax-free or tax-deferred investments. You pay more taxes if you choose not to get married, or if you choose not to have children.

    Or, since it all boils down to money in my pocket, I pay more for health care if I choose to get it in the US. I’m a couple of hundred bucks a month richer since I started getting my prescriptions from Canada and paying out of pocket rather than using my big-corporation-retiree insurance and buying them here.

  • Fish

    I left out: “So, you pay more in taxes if you choose to let the rest of us absorb your risk of a catastrophic health care bill. At least paying more taxes beats not be legally allowed to drive, which is what happens when you choose to go without automobile insurance.”

  • JKG


    Thanks for the interaction. I do not find myself in agreement with your assumptions or conclusions, but it has been helpful to hear your rationale for them. Perhaps it really just points out that people of good will and sound reasoning can still disagree on difficult decisions.

  • Patrick

    I don’t think there is a “Christian” position on it. We just have our own paradigms of life, what is most important ,etc.

    My take is this decision is an advancement on the decisions going back to early 20th century judicial thinking relative to the “elastic clause”.

    There is nothing that the state cannot do IF interstate commerce is involved and it is involved in every breathe we take in some indirect way according to the last 80 years of court decisions. That’s been a consistent pattern since the late 1930s.

    I’m not sure there has been a single piece of federal legislation outlawed since 1938 by the court. Previous to then, it happened.

  • dopderbeck

    Ernie and Fish: yes, but you are not required to pay a tax because you choose not to buy a home, etc. Abstaining from home buying does not trigger an additional tax liability. You pay whatever your income tax rate happens to be, and you simply don’t have a mortgage interest deduction (or green energy deduction or whatever). What triggers your basic tax liability is the affirmative act of drawing an income. Obviously, the mortgage interest deduction is designed to incentivize home ownership, but it does not attach any affirmative liability to non-home-ownership.

    I think this matters. Perhaps (perhaps) it is reasonable and fair to offer targeted exemptions / deductions from a generally imposed income tax in order to incentivize certain socially desireable behaviors. That strikes me as very different than imposing a unique affirmative tax only on people who fail to act in a particular way. As both Nancy Pelosi and Mitt Romney have said over the past couple of days, contrary to the Court’s Opinion, that’s properly considered a “penalty” and not a “tax.”

  • dopderbeck

    Patrick (#23) — actually the commerce clause became a hot potato again in the Rehnquist Court, under which a couple of federal laws purporting to regulate intrastate criminal activity were struck down (US v. Lopez and US v. Morrison). At the time it was called the New Federalism. The Court then seemed to retreat a bit from this trajectory. Perhaps Justice Roberts’ Opinion in the health care case is an effort to carve out some kind of moderating position — writing a commerce clause analysis consistent with the New Federalism but then using this “tax” angle to uphold the law.

  • JohnM

    Okay, “even if we agree that Christians should be willing to give up some “individual freedom” to facilitate health care for others” giving up SOME individual freedom implies there are boundaries. Are there boundaries? Please say there are boundaries. Cause when we start talking like that I worry that there are no boundaries. Somebody please say something to make me not worry like that. I’m mean, when it was just money I was being asked to give up….. Speaking of which, are taxes punishment? I wonder, since penalty and tax seems to be used interchangably in this case, and not obtaining health insurance is now a violation of the law. I don’t object to paying taxes, is it still punishment if I don’t mind? Is that what the government is doing when collects taxes, punishing the people from whom the taxes are collected? Does the tax/punishment work both ways, I mean both when I buy something and when I don’t buy something – doesn’t matter, I’m subject to punishment either way? If I pay a sales tax am I being punished for my purchase? Or income tax – is that why the government taxes my income – not to raise needed revenue, but to punish me for having an income? Is that the right way to look at it? I mean, I’ve never looked at taxes that way, but then I’m not a liberal, so maybe I don’t get it. Somebody help me out here. Anybody?

  • T


    I think you have a point, or a real question, within that string of questions, but I can’t make it out exactly. Yes, there are limits or boundaries to how much gov’t can require or forbid, and we have tons of those cases–far too many to get into them all here. But remember too that the limits on government include both the content of various rights and accountability via elections, as well as other checks and balances. We’ll see if enough people want to stay with our existing system rather than to give Romneycare, I mean Obamacare, a try. 😉 Oh, the irony!

    As for the terms we use for taxes, fees, penalties, etc., I wouldn’t get too hung up on it. Courts have a long history of looking more at function than form or label, and in many cases, categorization is difficult. Also, I’m not sure that liberals think of taxes as punishment (I would think that conservatives would if anyone does!), but as I said, I don’t think I’m reading your comment rightly.

  • Kenny Johnson

    I wonder why they couldn’t have offered tax incentives instead of penalties to make this work. For example, the first year you’re eligible to buy insurance, you get a $2000 tax credit to help pay for the insurance. If you don’t buy it, then next year you’d qualify for $1500, then $1000, then eventually $0. So you could choose not to buy insurance, but the longer you wait, the more it will cost you.

    Or instead of tax credits, the could have maybe just allowed insurance companies to raise premiums the longer individuals waited…

    Then it wouldn’t have been a mandate and would have still addressed the issue that healthy people may opt out until they are sick.

  • JohnM

    T, #27

    No, I wouldn’t think liberals would regard a tax as punishment either, but in that case they should be as uncomfortable with the ruling as any conservative. Not obtaining health insurance is a violation of the law. The normal and appropriate govenrmental response to violations of the law is to impose imprisonment – or a fine, i.e. a penalty, i.e. punishment. But the Supreme Court ruling says what is being imposed for not obtaining health insurance is a tax.

    What are supporters of the health care act to do? Reject the premise under which the ruling fell in their favor? Declare the line between tax and fine erased – in which case tax does equate to punishment?

    The boundaries I was asking about had to do with the moral obligation of one person to forego individual freedom in order to obtain a material benefit for another. Are there any limits to that obligation? Is individual freedom after all not so much a Christian value, not something rightly to be desired, either for ones self or for another person? Maybe I could see some argument for that, but then what was the big fuss over slavery?

  • T


    I don’t know how much you’ve studied various areas of the law, whether at state or federal levels, or tax law in particular, so it’s hard to comment appropriately. I practice in a narrow area of tax law, and even though I have a master’s in tax, I wouldn’t consider myself an expert. But the amount and types of taxes I have seen–way before this most recent “tax”–doesn’t lead me to be horrified at this one. Congress’ power to tax (not to mention that of the states) is ridiculously broad, and requires little to no rhyme or reason. Congress has, for a long time, used its power to tax all and then condition spending on compliance with various conditions, so this latest version doesn’t have me running for the hills. Some of Congress’ powers or their uses don’t affect the majority of citizens, so voting provides no accountability. But this law will be subject to voter scrutiny, which is good, however it takes shape over the next years and decades.

    I would urge you though not to compare this law, or anything like it, to slavery. It’s just not appropriate. There are degrees of freedom, and to compare the amount of freedom that this “tax” infringes upon to slavery, especially when so many people around the world are still in slavery and domination of various kinds, is unhelpful, both to this conversation and to legitimate protests of serious slave conditions. Individual freedom is a Christian value and a good thing, but it is far from the only value or the only good thing to pursue for a society, and Americans are a long, long way from the kind of governmental oppression that is still all to common in the world.

  • dopderbeck

    John (#29) — the question of boundaries is a difficult one at times. I think the best answer is that a person without appropriate self-regard is not really free to love as God loves, even as God in His Triune being experiences perfect love in Himself. Throughout scripture there are relational boundaries — for example, against adultery and prostitution, or requiring children to respect their parents, or governing the use of property. These demonstrate that love is not the dissolution of the boundaries of moral law. In fact, the boundaries of moral law are themselves a product of love, because they are boundaries ultimately related to our full freedom to live as authentic human beings in relation to God and others.

    So I think it’s clear that, for example, a person is not required to have sex with a stranger out of “love” for the stranger’s needs. That in fact would not be loving because it would degrade both parties. On a less dramatic note, I don’t think love requires Christians to vote in favor of a tax or insurance plan that isn’t designed to promote the common good, including a proper measure of social goods for the person voting. But I think love does require us to be willing to sacrifice for others, particularly for the “least of these.”

    Much, much more would need to be said on this, of course. We need to try to understand Jesus’ Sermon on the Mount, his command to the Rich Young Ruler, and other of his teachings, on their own and in the canonical context that includes the Torah, the wisdom literature (particularly Proverbs), the Pauline household codes, and other Biblical texts. And we need to consider all this as it relates to the Church’s experience in history, including the Church’s experience at times of martyrdom but also its experience of “seeking the peace of the city.” I don’t think any formula emerges from this to tell us precisely how any boundaries fall in any particular situation.

  • Tom F.

    To the tax issue, I think I buy the argument that there is no such thing as inaction when it comes to health care.

    1.) You will incur health care costs simply by living.
    2.) These costs can become catastrophic.
    3.) As the law stood before this health care act, at least some of these catastrophic costs would end up being paid by society IF you don’t have insurance.
    4.) Therefore, to protect society from reckless individuals who will incur catastrophic health costs that have to paid by society, we need to collectively makes sure individuals have bought insurance.

    Note that (2) is a relatively recent outcome of advanced health care technology, and (3) is a choice in our society (we don’t turn away people from emergency rooms if they can’t pay).

    If you are upset at the mandate, than you need to be willing to let go the requirement that we serve all people in emergency rooms, at least to be consistent. Good luck squaring that with a Christian ethic.

    And since there is no such thing as “inaction” when it comes to health care, then the tax is a tax on the activity of living without health care. Inactivity, in this case, could only be accomplished by being dead.

  • JohnM


    The reference to slavery was in the form of question, stemming from the larger question of whether or not individual freedom is a Christian value, and pointing to a possible (and at one time realized) consequence of de-valuing individual freedom. You affirmed that individual freedom it is a Christian value and a good thing.

    Again, I don’t object in principle to paying taxes – to raise revenue. I object to calling a fine for non-compliance a tax. If there are other legal duties for disregard of which we impose a penalty and call it a “tax” I object to those misuses as well.

    dopderbeck #31,

    There are boundaries then? Points at which granting a benefit to one party at another parties expense is unloving and unjust? Not something Christians ought to condone? I believe that is true even though identifying the boundaries may sometimes be as difficult as you say, and whether or not the particular benefit (health care) and supporting sacrifice (of individual freedom) in question here reaches such a point . I just want to establish the principle.

  • T


    I guess when I see how much is in the tax code already that raises or lowers people’s taxes for this or that behavior, purchase, choice, or even status, I can’t get all worked up about this one. We tax some people more than others for a whole host of reasons or no reason, seeking to encourage or discourage or reward or help or just to get more money for gov’t in a way that’s politically feasible. I’m all for simplification of the tax code and for less of these games in the code, but it’s not going to be the constitution that gets us there. Any strides made will be legislative.

  • PTM

    Dave, thanks for the insightful analysis. I have several comments, referencing also the above discussion.

    First, let’s remember that the individual mandate is not the essential reason that conservatives oppose the bill. The mandate was seen as the part most likely to be struck down and has been highlighted for that reason, but the essence of conservative opposition is much broader than that: it is against the overall government control of healthcare that it injects at every level. There are many other ways that healthcare could have been provided to the poor without government control. The simplest would be to provide vouchers for purchasing healthcare, like food stamps. I don’t know very many people — if anybody — who would oppose that. There were other problems that needed to be fixed in healthcare, as well, and they could have been fixed in a way that the American people would have supported. As it was, 65% of Americans opposed the bill at the time that it was passed, and not mainly because of the individual mandate. The mandate was important mainly because it was seen as the Achilles’ Heal of the bill, the part most likely to save us from all the rest of it. So the controversy is not about helping the poor versus not helping them. It has never been about that, and framing the discussion that way misses the point.

    Second, the above discussion seems to misunderstand libertarians who are Christians. We (I’ll include myself tentatively) don’t mean “libertarian” to believe that we are at liberty to disobey God or to hold property as if it were not a stewardship to administer in His service. Rather, we believe that it is not safe to allow the secular government’s job to intervene in that stewardship. Suppose someday in the future the US government becomes heavily Muslim, and laws are written to demand that we serve God according to Muslim practices. Or Mormon? Or anti-religious? Will you be comfortable with that, or would you wish then that the government was not the mediator of your faith and service to God? (If God had sent us an American Moses to set up a theocracy in the US, things would have been different.) Property rights are important in Christian versions of libertarianism because if a government can control property (or your healthcare for that matter) then it can effectively control you.

    Truly, the treatment of Native Americans at the hands of the US government (mentioned above) in taking their lands and killing them in order to let settlers occupy and take their lands was horribly unjust, but the remedy is not to give the government even more power to redistribute peoples’ lands and property. That doesn’t makes any sense.

    Third, I believe it was important for the court to limit application of the commerce clause, and indeed to roll it back. (Some conservatives have called Sebelius an underhanded victory for that reason.) I think Wickward was in error and that it leads to the reductio ad absurdum that would have resulted had the court used it in Sebelius. Wickward said a farmer’s family can eat its own wheat without participating in interstate commerce, but if two families sell crops to each other, or if a local community does so, or an entire state, then it becomes “interstate” commerce because any sales of wheat affects the national wheat market. I.e., taking X number of families out of the national wheat market (by selling it to them privately) affects wheat prices whenever X>1, according to Wickward. The fallacy is that they exempted the case when X=1, which was the case considered in Sebelius. Doesn’t growing your own wheat affect national wheat prices because you have taken your own family out of the wheat market? The same applies in discussing the individual mandate. Applying the logic of Wickward more consistently means that even the individual (X=1) can be regulated (or “taxed”) for taking themselves out of the national market.

    I think this is a reductio ad absurdum because clearly the commerce clause wasn’t meant to give Congress power to regulate individual’s choices to make purchases, or even to sell things in their neighborhood or community or (gasp!) state. So where did Wickward go wrong? It did so by failing to realize that “the wheat market” (and in Sebelius “the healthcare system”) don’t actually or concretely exist; they are just mental abstractions. Instead, there are innumerably many wheat markets, some intrastate and some across state lines. The Constitution says Congress can regulate sales of wheat or healthcare services that are truly “interstate”. By making up the abstract concept of a “national wheat market” and a “national healthcare system,” we have //defined// all wheat sales and all healthcare activity as interstate commerce automatically, and thus eliminated the ability of the commerce clause to identify certain types of commerce from others. If the Constitution had meant to discuss commerce in terms of these abstract concepts, then it would have needed different language to effect some meaningful intention with the clause; otherwise we reach the point of X=1 and the commerce clause is utterly gutted. Calling it a tax guts the restriction on Congress just as effectively, so the ruling in Sebelius is no better than if it had extended Wickward to X=1. The fact that this clause was put into the Constitution at all, and that it didn’t resort to special language to avoid being sidestepped by such mental abstractions, indicates that we should interpret it concretely and not abstractly. Congress should only regulate actual sales across actual state lines, and that means that the current healthcare act should be unconstitutional.

    Conservatives including Libertarians who are Christians desperately want to care for the poor, but we don’t want the Constitution to be gutted in a way the undermines the Constitutional liberties that allow us to worship God, evangelize, etc. It seems appropriate to quote Lincoln in his 1856 speech in Kalamazoo:

    “Now I make this appeal to the Democratic citizens here. Don’t you find yourself making arguments in support of these measures, which you never would have made before? Did you ever do it before this Nebraska bill compelled you to do it? If you answer this in the affirmative, see how a whole party have been turned away from their love of liberty! And now, my Democratic friends, come forward. Throw off these things, and come to the rescue of this great principle of equality. Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these great and true principles.”

  • dopderbeck

    John (#33) — I think I said pretty clearly that “love” does not imply an absence of boundaries.

    It strikes me that something is missing from your comments: a sense of preference for the poor. Catholic Social Teaching refers to this as the “preferential option for the poor.” I think it’s crystal clear throughout scripture that a just society will make special provision for the poor. In fact, I think it’s crystal clear throughout scripture that how a society deals with the poor is one of the principal measures of justice and peace.

    So when we are thinking about boundaries — or better, when we are thinking about reciprocal obligations of love — more is required of the relatively well off in respect of the poor.

  • dopderbeck

    T — as a tax lawyer, can you give examples of tax liabilities for inaction? This seems troubling to me. It seems to me that a liability to the government for inaction is a penalty and not a tax. At the federal level, that would matter because it would implicate different enumerated Constitutional powers (commerce vs. tax).

  • Fish

    I wish health care was a pure tax, like Canada. Pay 6% of your income, get the same insurance plan as every other citizen, and receive better care than we get here at a better price. Done. If you want more, buy it, just as you can here. Done. Government is a gift from God through which we do things we cannot do alone, and we ought to use it.

    The essence of the problem is that the primary output of any for-profit system is, by definition, profit. The goods and services delivered by that that system are simply the means to the end. Corporations aren’t legally bound to do anything but work to make a profit within the bounds of the law. If a corporation can make more money developing land mines than land mine detectors, their duty to their shareholders is clear.

    Remember that every system is perfectly designed to get the results it is currently getting. We have a system perfectly designed to be the most profitable in the world. Unfortunately, it is not designed to produce efficient and effective care for human beings. The invisible hand is invisible for a reason; it only works in matters involving love of money, not love of people.

  • T


    Most changes in tax liability for inaction would be in the form of income tax incentives that aren’t taken. Deductions and credits of various kinds are provided to or for “X” and inaction to do or become “X” will result in additional taxes. I know that that’s not the same form as a direct tax on a failure to purchase, but the substance is identical, particularly in a situation like this where the tax is only applied to folks who both fail to have their own policy, AND have income above a certain level. The combo of triggers makes it functionally equivalent to half the income tax code in terms of function.

    But there are specific examples where the line between tax and penalty is blurred. For instance, look at 26 USC § 4958 – Taxes on excess benefit transactions. These are taxes (pay attention church board members!) that are placed on various “disqualified persons” (which is expansively defined) for “participating” (defined below) to decisions to give managers, big donors, or the family members of such folks (a.k.a., “disqualified persons”), a benefit from a charity that is in excess of services or goods received by the charity in exchange. The “taxes” in this section can apply to a surprisingly large circle of folks (with joint and several liability). Further, Section 53.4958-1(d) of the regs defines “participation” as including the silence or inaction of manager/director, etc. who had a duty to speak/object etc. Now, one could argue that the “action” taken was to become a manager or leader in a charitable organization. But to me, that’s just the specific context that creates the duty for this “tax” on inaction. If Congress says that the nation-wide duty to buy health insurance is the flip side of the duty imposed on hospitals to accept all emergency patients, or if this is the “tax” to fund additional medicaid/administrative money to the states, then we have an analogous situation.

    There are probably better examples, but my clientele is such that this is the first “tax” that comes to mind on inaction. The tax is appropriately also referred to as “intermediate sanctions.” So, the health care statute is not the first time that line b/n tax and penalty or sanction is blurred.

    FWIW, I think the SCOTUS got this one wrong, not in result, but in reasoning. Health insurance is a national form of commerce, and given the Court’s precedents, this was not out of Congress’ reach to regulate, IMO. (It wasn’t, for instance, an attempt to pass criminal law on gun possession; it was a legitimate attempt to regulate commerce that is intrastate in scope and effect.) Further, in the background of this for me is the constitutionality of Congress being allowed to tax all 50 states, then condition funds on the states’ willingness to change their own rules (speed limits; drinking age, etc.) Obviously some states still turn down all kinds of federal funds and keep their own laws in place. But the fact that Congress can do that (and use its other powers under the commerce clause), makes this look small to me.

    Finally, I should add that every time someone objects to “double taxation” I laugh. If we look at the various levels of government and their collective taxing powers, mere “double taxation” would be too good to even imagine! We are taxed when we earn money (multiple times: income tax, fica, futa, then maybe again at the state level), when we spend it (again perhaps multiple times and rates depending on the purchase via sales and excise taxes at federal, state, county levels), when we invest it in various assets (taxes on deeds, or on loans and mortgages), when we just own various assets (such as taxes on real property ownership, business personal property, or intangible taxes), when we sell them (cap. gains, depreciation recapture, recording “fees” or taxes), or when we die and pass them on (federal and/or state estate taxes), or receive them via inheritance (state inheritance taxes).

    The point I’m getting at is that I feel that folks who are pointing to this tax/penalty and raising the alarms are in the unfortunate situation of pointing to a new hole in a damn, with the hole being this new version of Congress’s taxing power, and the damn being the constitution as SCOTUS sees it. But they miss that damn has been completely breached for decades, on both sides of this little hole, with water pouring in. The constitution just isn’t a meaningful restriction on Congress’s ability to tax and/or spend. Voter accountability is the only real check for that.

  • dopderbeck

    T: and of course, the only thing worse than a law professor is a practicing tax lawyer. 🙂

  • T


    I few comments. Yes, there are many ways to reform healthcare, but I don’t believe for a second that the Republican party would be fine with giving vouchers to the poor for health care; not in the current environment. The first response would be fiscal. The Republicans want to balance the budget without raising any taxes (and with minimal to zero cuts to defense budgets). That means that any move toward balancing the budget, from a Republican platform, has to be in the form of cuts to existing domestic programs, which are generally for the poor, the elderly and children, and the disabled.

    Your second argument makes little sense, but I think the core of it is that “we can’t trust government.” You ask what would happen if the secular U.S. government became Muslim and legislated religious service. If you see a slippery slope whereby health care reform leads to or allows for a Muslim theocracy, then everything is a slippery slope. No one, no one, is advocating “the government [serving as] mediator of your faith and service to God.” We’re talking about health care, commerce and taxes. Also, even though I think taxes can certainly be too high for the good of a society, it’s simply not true that “if a government can control property (or your healthcare for that matter) then it can effectively control you.” If that was true, then Jesus would not have told the Jews to render to Caesar’s what is Caesar’s (regarding whether they should pay taxes to the pagan god-king), but to God what is God’s. What is true is that your primary allegiance cannot rest both with money and God at the same time. If Jesus saw strong personal property rights (and limited taxation) as the key to freedom under God, he had a strange way of showing it. My point, again, regarding libertarianism is not that personal property rights are irrelevant or unimportant. Rather, they should be humbly held and subject to limits for the good of all. Relatedly, maximum individual property rights is not the only value or item of “justice” the scriptures are concerned with; quite the contrary. The Bible simply isn’t a prescription by God for libertarianism.

    Your third point (related to the second) involves not trusting the government with power to regulate private property rights and decisions. First, it was not only the government that mistreated Native Americans, or Africans, or Jews, or anyone. The injustice that is embedded in the history of our individual “rights” to our property is not limited, by any sense, to injustices by government; individuals have been in the game longer and just as pervasively.

    Regarding the commerce clause, I agree that we have unfortunate precedents there. Even the switch in time that saved nine didn’t need to take economic freedoms out of the list of rights whose regulation deserves strict scrutiny. The Court could have simply applied the strict scrutiny test and, given the extreme economic depression at the time, allowed the New Deal legislation to pass that high standard. But that’s not the way the Court went and the genie is out of the bottle. This most recent decision does not gut the Constitution. If anything, as others have noted, it pares back the commerce clause powers a bit, even as it adds a little (perhaps) under the taxing power, which was already enormous.

    I’m fine if we disagree about libertarianism, but please know that I do understand it (and the Christian versions of it). I fulfilled my writing requirement in law school with it, specifically a book review of a prominent libertarian jurist. I understand the arguments and have espoused them myself. Some of them are still persuasive to me at various levels. It’s just that my sense of a “just” society consists of far more than the protection of nearly unlimited personal property rights (which are built on a mix of grace, merit, and injustice), and it was the Bible that persuaded me more on that point than any other source.

  • T


    LOL! Amen. We’re a sorry lot. And please don’t call me a tax lawyer! I’ve tried to avoid a genuine tax practice as much as possible since school! Rescue me! 😀

    Thanks again for a great article. Good thinking and good work.

  • DRT

    OK guys, speaking of despicable things like Tax Attorney’s, .. 😉 …. should I take a job where I am the rep for a company (consulting firm) to a tobacco company? Arghhh, I hate these types of decisions….

  • T


    In what capacity are you consulting them? Also, would the tobacco company be the only company you serviced as the rep/consultant?

  • DRT

    I would be an infrastructure (IT) consultant who would front for a company who provides a broad array of infrastructure support services. They would be my only client.

  • DRT

    My role is decidedly not business decision or strategy support for tobacco.

  • T

    I think (to be classically unhelpful) it’s a matter of your own convictions. I don’t smoke or drink, but Christians have done both. My brother-in-law worked for a beer distributor for a spell, and I never thought twice about it. But if he felt convicted about it, he should have looked elsewhere. I’d say the same to you.

    How’s that for a lawyer’s answer? 😀

  • JohnM

    dopderbeck #36

    If any tenet of Catholic Social Teaching is missing from my comments it’s probably because I’m not Catholic. 🙂

  • DRT

    Thanks T. Perhaps if I told you and everyone about my sex life too you would be able to give a more complete answer 😉

  • Thanks, David, for an excellent post, and this is a great discussion. I’m on board with you I hope, from what I understand. I certainly can’t begin to parse the legal issues on this, so this is quite helpful. What I can’t understand is just how committed so many of us Christians are to an ethic which is essentially something other in my mind anyhow, than the Jesus Creed of loving God and our neighbor…

  • PTM

    T: You wrote that the priority of the Republicans would be to balance the budget, and this would prevent us from giving vouchers to the poor. Maybe you are right; I shouldn’t have said nobody would be against vouchers. But OTOH do you want us to /not/ balance the budget? If we can provide healthcare only by borrowing, then we won’t be able to provide it for very long, will we? At what point will we have to stop borrowing and face voter rebellion and thus end care for the poor? So instead of vouchers, can we balance the budget with the current “affordable care act” (ACA)? The CBO estimates that the ACA will cost taxpayers $1.76B over a decade [1], and it seems it will raise the cost of everyone’s insurance to boot [2]; the $1.76B in taxes would have been enough to buy all 30 million uninsured people a really good health insurance policy outright…without forcing young people to be over-insured and without raising the cost of everyone’s insurance. So if we can’t get voters to pay for vouchers, then it’s even more sure we can’t get them to pay for the ACA. So I still claim vouchers would have been a more logical way to help the poor, and it would have provided better care for everyone and would not have violated personal liberty nor required a massive, inefficient federal bureaucracy to administer it.

    Second point re Christian libertarianism and state interference. You say my argument makes little sense, and that’s fair because I can’t see the sense in your counter argument either 🙂 so we must be talking past each other. Let me my argument concrete to try to communicate it better. The whole sense of this discussion is how or whether Christian morals require us to implement government-mandated welfare programs, so this is all about pushing our religious convictions into law, and thus onto people who might disagree with them. Already parts of the ACA are requiring Catholics to do things that are against their religious beliefs wrt contraception. So when you write, “No one, no one, is advocating ‘the government [serving as] mediator of your faith and service to God'” you are wrong because it is already happening. The ACA is already trying to make Catholics do things that the bill’s writers thought was morally necessary (in accordance with their religion or whatever metaphysics informed their ethics) but that is contrary to the Catholic’s faith and service to God. Without the ACA, than Catholics could have continued to administer their own welfare programs with their money, and to do it according to their own faith and conscience; but with the ACA the government is now intervening, taking control over a portion of the Catholic’s money so that the government can carry out part of that stewardship according to the morality and religious beliefs of the bill’s authors. This is repugnant, more so to those who are already hurt by it. So again I ask, will you continue to be comfortable letting the government intervene in your stewardship and service to God if another, even less Christian, set of religious convictions and morals eventually gains sway in America? It has happened over and over again in world history, and it can happen here. (It actually is happening in America.)

    Regarding Native Americans, remember it was your argument that because of the injustices toward them embedded in our property “rights”, we should now give more power to the government to administer property rights. I totally agree that not just the government but also individuals were thoroughly involved in abuses to Native Americans, but that’s irrelevant to the support of your original argument. I was pointing out the non sequitur in saying that government power is the remedy to the abuses experienced by the Native Americans. Government power is definitely not the remedy for that. Perhaps Libertarians should, to be consistent, advocate giving back the Native Americans’ property. But that doesn’t alleviate your non sequitur, and the point of the discussion was to determine how to organize government, not how to right the wrongs of the past.

    I hesitate to say this because I’m already sounding too pugnacious and I don’t like it, but writing for clarity sometimes comes across as pugnacious and so I hope you’ll forgive me for it….I’m really I’m not convinced you do understand Christian libertarianism despite having written on it in law school. In your last sentence you write, “It’s just that my sense of a ‘just’ society consists of far more than the protection of nearly unlimited personal property rights (which are built on a mix of grace, merit, and injustice)…” How could you write that sentence if you really understand Christian Libertarianism? What Christian Libertarian is there that /does/ believe a “just” society is no more than these things? I don’t know of a single one. Non-Christian libertarians, maybe, but not Christian ones. Christian Libertarians believe that society is just if the people are serving the poor, building schools and hospitals, alleviating disasters, fighting injustice, etc. In short, it must be “far more than the protection of…property rights…” We just don’t believe that the government is the sole institution involved in making it a just society. We believe that the government, being the one institution ordained to use deadly force, should be limited to doing the tasks that might justifiably require the use of deadly force. I don’t want the police and the armies doing anything but that. I don’t see a biblical mandate to use weapons to force third parties to give to the poor. That is /completely/ unbiblical. I do see a biblical mandate to give of my own wealth, and to participate with others who likewise are submitting themselves to God. We have plenty of institutions that participate in making this a just society. Libertarians advocate using those institutions, not the one carrying the guns, to administer the all-important and biblically necessary welfare programs. It drives me crazy how many times you can say this and folks of the progressive persuasion still can’t hear it.

    [1] http://cbo.gov/sites/default/files/cbofiles/attachments/03-13-Coverage%20Estimates.pdf

    [2] http://www.forbes.com/sites/aroy/2012/03/22/how-obamacare-dramatically-increases-the-cost-of-insurance-for-young-workers/

  • T


    I’ll try to be as brief as I can. I do think the budget needs to be balanced soon. But cutting expenditures is only one part of that. Knowing the tax history of even the last 20 years as I do because of my profession, the Republican insistence that there be no raising of taxes from current levels, despite how much higher they have been in the recent past (without dire economic consequences) makes them lose all credibility with me on that. For people unfamiliar with the tax changes of the last 15 or so years, maybe the Republican principle looks reasonable. Again, I would agree that there are lots of ways we could have addressed health care reform, and this version wasn’t my favorite, but if you think that Republicans were going to actually push for any of it, I think you are totally mistaken. The old guard Republicans resisted it for decades and the Tea Party Republicans showed even stronger resistance to any government led reform, other than, perhaps, tort reform. I personally think your voucher idea deserves thought and study, but I wouldn’t count on it getting any traction onto a Republican platform, even as they push for repeal.

    Regarding Christian libertarian views, I doubt you think that the ACA is the first act to forbid or interfere with religiously motivated action. Let’s take an activity of government that is generally accepted within libertarianism: national defense. Merely collecting taxes from many Christians in order to fund a war violates how many Christians would choose to do steward their money. Requiring minimal education offends other folks religious convictions, so does prohibitions against using animals for sacrifice, so do a multitude of other laws, like definitions of rape and marriage and slavery, many of which are acceptable even by minimalist libertarian standards. Many conservative Muslims even today don’t consider it murder to kill a female family member who has shamed the family; indeed, they consider it morally necessary. So, we are all comfortable with government affecting and/or interfering with how we worship and serve God according to our conscience to some degree. It is a matter of a degree, even for libertarians, as to how much government is going to limit religious expression and stewardship.

    Regarding Native Americans, yes, you are starting to see the inconsistency of the position by suggesting that maybe libertarians should be advocating to give all the land back. Bingo. If protecting and preserving property rights is fundamental to justice . . . then, yeah, libertarians have a hypocrisy problem. But my main point here was to say that the pure or “just” foundation for today’s private property rights doesn’t exist. They are all built on injustice (and grace, and merit) to one degree or another. This is part of what justifies there being limits (in the form of taxes, regulations, exceptions, etc.) to those property rights. This is important because the main “high ground” that is common from libertarian advocates on the ground is “no one can [justly] tell me what to do with MY property.” Well, libertarians need to realize that they are standing on huge violations of property rights when they claim their property rights. That’s how the past bears on the libertarian argument for how to organize everyone’s relative “rights.” There are future looking arguments as well for and against, but this is just a blog discussion!

    Finally, on your last point, I agree that libertarians see more than enforcement and protection of property rights as parts of a just society; as you say, it’s that they want to limit government largely to that role, and certainly, as you say, keep them from mandating care for the poor. I hear this line of thinking all the time from libertarians: “I don’t see a biblical mandate to use weapons to force third parties to give to the poor. That is /completely/ unbiblical.” The problem with this is that it sounds like you are saying that it is unbiblical for there to be laws requiring care for the poor, or putting legal limits on how much wealth one can gather relative to his neighbor. If that is what you are saying, then I don’t know what to say other than there are exactly those things in the bible, with God making such things part of Israel’s law, to be enforced by judges. Now, I’m fine if you want to argue that none of those sections of the Bible apply to us (for any purpose, including even wisdom for a society), but please stop saying that legally required care for the poor is completely unbiblical. It’s actually the opposite. In fact, in the few places where we have God making law for a nation, he does exactly that; he didn’t create a libertarian state, and he could have. Even aside from the mandated worship, he could have made the economics libertarian, but he didn’t; not even close. That may not be persuasive to you, but you shouldn’t say something is unbiblical when there’s a pretty serious example of it in the bible, the books of Moses no less.

    FWIW, I didn’t think you were sounding pugnacious. Happy 4th.