ABOUT THIS EPISODE
CONGRESS SHOULD HAVE NEVER ACTED
There is something much more important about ObamaCare than health insurance.
It reveals how Congress approaches power.
The Constitution created a federal government of enumerated powers.
That means Congress is not supposed to begin by deciding what it wants to accomplish.
It is supposed to begin with a different question:
Where is our authority?
But with the Individual Mandate, Congress wanted Americans participating in the health-insurance market.
There was an obvious problem.
Millions of Americans were not participating.
They weren’t buying anything.
They weren’t conducting a transaction.
They weren’t engaged in the commerce Congress wanted to regulate.
So Congress adopted an extraordinary proposition.
Your decision not to purchase insurance affects interstate commerce.
Therefore, Congress claimed authority to regulate your nonparticipation.
Think about what happened.
Congress did not discover commerce.
It attempted to create the commerce necessary to justify its own regulation.
Chief Justice John Roberts recognized the problem.
He wrote that the Commerce Clause permits Congress to regulate commerce.
It does not permit Congress to compel individuals to become active in commerce by purchasing a product.
That distinction is enormous.
And at that moment, the constitutional inquiry should have ended.
Congress wanted to compel Americans into commerce.
Congress lacked the Commerce Clause power to do it.
STOP.
That is what enumerated powers mean.
Government does not receive authority merely because legislators consider their objective important.
Government does not acquire authority because a national problem exists.
Government does not acquire authority because exercising power would be convenient.
The Constitution either granted the power—
or it didn’t.
Congress consists of men and women entrusted with legislative power under that Constitution.
They are not innocent spectators to constitutional government.
As a legislative institution, Congress is responsible for knowing the boundaries of its own authority.
Yet Congress proceeded.
Whether individual legislators acted from constitutional ignorance, expansive constitutional philosophy, political expedience, or a determination to achieve their objective despite the limitation, I will question their judgment and motives.
Because the institutional act remains.
Congress attempted to exercise a power that Roberts concluded the Commerce Clause did not provide.
And that reveals a much larger danger.
When government begins with:
“This must be accomplished.”
instead of:
“Are we authorized to accomplish it?”
the Constitution has already been demoted.
It is no longer the boundary.
It becomes an obstacle for government lawyers to navigate.
And that is exactly what happened next.
Congress should have stopped.
Roberts should have stopped.
But instead—
the juggling began.
THE COURT JESTER
Chief Justice Roberts had reached the constitutional boundary.
Congress could not compel an inactive American into commerce under the Commerce Clause.
That should have ended the case.
Instead, Roberts kept going.
And this is where the Chief Justice became, in my view, the Court Jester.
Watch the balls.
Commerce goes into the air.
It falls.
Necessary and Proper goes up.
That does not solve the problem.
Then Roberts reaches for another ball:
Taxation.
Congress had called the payment imposed for failing to maintain insurance a penalty.
The statute said individuals “shall” maintain insurance.
And Roberts himself acknowledged something extraordinary:
The statute reads “more naturally as a command to buy insurance than as a tax.”
But then he said:
“It is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.”
That is Roberts speaking—not me.
Now understand what happened.
The natural reading created a constitutional problem.
So another characterization saved the statute.
Penalty became tax.
Command became choice.
And the inactivity Congress could not reach through Commerce acquired a financial consequence through taxation.
Roberts’s reasoning was that Congress wasn’t really forcing you to purchase insurance.
You could choose not to buy it.
You would simply pay money to the federal government.
He called that a lawful choice.
But ask the obvious question.
Why was your inactivity within congressional taxing authority in the first place?
You hadn’t purchased insurance.
You hadn’t entered that market.
You had done nothing.
Commerce could not reach you because you remained inactive.
Yet taxation could impose a financial consequence precisely because you remained inactive.
Roberts defended that distinction by observing that the Constitution does not generally guarantee freedom from taxation through inactivity and that taxes have long been used to influence behavior.
But that raises the deeper Victory question.
Calling the payment a tax describes the mechanism.
It does not itself answer the antecedent question:
Where did Congress obtain authority to attach this federal financial consequence to this person’s inactivity?
Roberts said the taxing power was an existing power.
Fine.
But possessing a power does not answer every question about its object, reach, or jurisdiction.
And there lies the trick.
The audience begins watching the balls.
Commerce.
Necessary and Proper.
Taxation.
Penalty.
Tax.
Command.
Choice.
We become so occupied with the constitutional juggling that we forget the original question.
Where was Congress granted the power to compel this result in the first place?
Roberts had already told us Commerce didn’t provide it.
That should have ended the performance.
Instead, the Court found another route by which the governmental objective survived.
And when the performance ended, the balls of reasoning seemed to disappear.
The mandate remained.
Government power remained.
And the constitutional limitation that should have stopped Congress became little more than a detour.
That is why I call Roberts the Court Jester.
He announced the boundary—
and then showed government how to walk around it.
McNUTT: SOMEBODY FINALLY SAID NO
Now jump from ObamaCare in 2012 to a federal appeals court in 2026.
Forget health insurance.
We’re talking about whiskey.
But the constitutional problem is remarkably similar.
The federal government taxes distilled spirits.
Nobody in McNutt needed to deny the existence of that taxing power for the court to confront the next question.
Congress also prohibited operating a beverage distillery at a person’s home.
The government’s justification was essentially this:
Home distilling is difficult to monitor.
People might hide production.
They might evade the spirits tax.
Therefore, prohibiting home distilling helps protect federal tax collection.
And the constitutional bridge?
Necessary and Proper.
Now stop.
Look at what happened.
Congress possesses a power to tax.
Government then argues that this supports a power to prohibit an underlying activity because somebody might evade the tax.
Those are different propositions.
And the Fifth Circuit finally asked the kind of question government should always be required to answer:
Where does one power become the other?
The court rejected the government’s argument and held the challenged provisions unconstitutional.
The logic becomes almost absurd when exposed plainly.
If McNutt makes taxable whiskey, the government can collect the applicable tax.
If government prohibits him from making the whiskey—
there is no whiskey upon which to collect the tax.
The Fifth Circuit therefore described the prohibition as antirevenue and confronted the broader limiting-principle problem:
If possible tax evasion permits prohibition of the underlying activity, what cannot be banned?
Think about the implication.
Suppose government taxes income generated through labor.
Some people might conceal their labor.
Some might fail to report income.
Does the taxing power therefore permit government to prohibit working at home because home labor is harder to monitor?
The Fifth Circuit itself raised analogous concerns involving home businesses and remote work.
And that brings us straight back to Victory.
Power to tax does not automatically mean power to prohibit.
Necessary and Proper cannot simply become a bag from which government pulls whatever additional power it needs.
The clause concerns carrying granted powers into execution.
The antecedent power must exist.
That is why McNutt matters.
A court finally looked at the expanding chain of reasoning and effectively said:
Enough.
But eleven days later, another federal appellate court looked at essentially the same prohibition—
and reached the opposite result.
And that tells us something even more disturbing.
McNUTT, REAM AND VICTORY: STOP MEANS STOP
April 10, 2026.
The Fifth Circuit decides McNutt.
Congress’s taxing power does not justify this home-distilling prohibition through the government’s Necessary and Proper theory.
Eleven days later—
April 21.
The Sixth Circuit decides Ream.
Essentially the same federal prohibition.
Different conclusion.
The Sixth Circuit acknowledged an important point:
The home-distilling prohibition itself goes beyond merely requiring payment of a tax because it proscribes conduct.
The court nevertheless concluded that the prohibition could be sustained as necessary and proper to implementing Congress’s taxing authority, based in part on the history of spirits-tax evasion and difficulties monitoring home stills.
Now consider what that means.
The Constitution did not change in those eleven days.
The Taxing Clause did not change.
The Necessary and Proper Clause did not change.
The federal statute did not change.
Yet one federal appellate court says the asserted power crosses the constitutional boundary.
Another says it doesn’t.
What changed?
Judicial reasoning.
And that is the entire point of Victory.
Government begins with a granted power.
Then another proposition is attached to it.
Then another.
Then precedent validates the expansion.
And the next generation begins with the expanded proposition as though it were contained in the original grant all along.
Eventually people stop asking:
Where did the power originate?
They ask only:
How far does the precedent allow government to go?
That is backwards.
And it explains why the Roberts decision matters so much.
Congress wanted Americans participating in the health-insurance market.
Commerce couldn’t constitutionally compel the activity according to Roberts.
Instead of stopping, the statute survived through taxation.
In Ream, taxing authority itself doesn’t directly prohibit home distilling.
Necessary and Proper supplies the bridge.
Different cases.
Different activities.
Same fundamental danger:
The constitutional boundary becomes the beginning of another argument instead of the end of governmental power.
And once courts accept the additional argument, words begin covering the original defect.
Definitions accumulate.
Doctrines accumulate.
Presumptions accumulate.
Precedents accumulate.
Eventually the legal profession debates the meaning of the accumulated language while almost nobody returns to the beginning.
Victory does.
Victory strips away the layers.
Not because definitions don’t matter.
Not because precedent doesn’t exist.
But because neither can answer the question that logically comes first:
WAS THE POWER THERE?
That is the question Congress should ask before legislating.
That is the question courts should ask when legislation is challenged.
And when the answer is no—
there should be no constitutional juggling.
No substitute characterization.
No creative bridge.
No judicial rescue operation.
STOP.
Government does not have a constitutional obligation to find a way to accomplish its objective.
Government has an obligation to remain within the powers granted to it.
That is the distinction between limited government and government that merely searches for legal language capable of validating whatever it has already decided to do.
And when the people fail to insist upon that distinction, power learns something.
It learns that yesterday’s boundary can become today’s precedent.
Today’s precedent becomes tomorrow’s presumption.
And tomorrow’s presumption becomes the next expansion of governmental power.
That is how liberty disappears.
Not necessarily in one dramatic act.
But one interpretation at a time.
One precedent at a time.
One unchallenged assertion of authority at a time.
So Victory asks the question before all the others:
WHERE IS THE AUTHORITY?
Because if the authority was never there—
centuries of explanation cannot create it.
