Tea Party Tribune
^ | 2012-06-29 12:11:00 | danmillerinpanama
The majority decision distorts the Constitution to uphold
ObamaCare.
As bad as ObamaCare is, the decision transcends ObamaCare most
perniciously because it expands the power of the
Congress to interfere in countless other ways as yet
unknown in how we live our lives.
John
Turley today noted that having decided that the ObamaCare individual mandate
is outside the authority of the Congress under the Commerce Clause, the Supreme
Court found the requisite authority in the congressional authority to tax.
But no sooner had Roberts proclaimed his love for federalism than he
effectively killed it. Roberts held that the individual mandate still fell
squarely within the taxing authority of Congress. If so, all those "broccoli"
questions asked by Roberts and other justices simply move over to the tax side.
If Congress can "tax" people for not having health insurance, how about taxes on
people who don't have cellphones (as Roberts asked)? Just as there was no clear
limiting principle in the commerce clause debate, there is a lack of such a
principle in the tax debate. Instead, Roberts simply says the individual mandate
is supported by a "functional approach" that has long allowed federal taxes to
"seek to influence conduct" by citizens.
. . . .
It is hard to see who will be the ultimate winner from this decision. But the
biggest loser is federalism. Roberts lifted it up only to make it an exquisite
corpse. In that sense, the decision reads like the funeral speech of another
character in Julius Caesar. To paraphrase Mark Anthony, Roberts came to bury
federalism, not to praise it.
I agree; however it may be worse than that.
These excerpts from Chief Justice Roberts'
majority
decision attempt to explain that congressional language to the contrary
notwithstanding, the individual mandate is a tax.
Beginning in 2014, those who do not comply with the mandate must make a
"[s]hared responsibility payment" to the Federal Government. §5000A(b)(1). That
payment, which the Act describes as a "penalty," is calculated as a percentage
of household income, subject to a floor based on a specified dollar amount and a
ceiling based on the average annual premium the individual would have to pay for
qualifying private health insurance.
The Act provides that the penalty will be paid to the Internal Revenue
Service with an individual's taxes, and "shall be assessed and collected in the
same manner" as tax penalties, such as the penalty for claiming too large an
income tax refund.
You did not buy what we told you to.
The decision then tries to explain why the individual mandate, although
labeled a "penalty," may be deemed a "tax" because that seems to have been what
the Congress desired. The attempted explanation is a tortured one and makes very
little sense. However, the precedent has been established. In consequence, the
Congress now has wide discretion to regulate almost anything it wishes under its
taxing powers. That is illustrated by this portion of the decision:
In making its Commerce Clause argument, the Government defended the mandate
as a regulation requiring individuals to purchase health insurance. The
Government does not claim that the taxing power allows Congress to issue such a
command. Instead, the Government asks us to read the mandate not as ordering
individuals to buy insurance, but rather as imposing a tax on those who do not
buy that product.
. . . .
Under the mandate, if an individual does not maintain health insurance, the
only consequence is that he must make an additional payment to the IRS when he
pays his taxes. See §5000A(b). That, according to the Government, means the
mandate can be regarded as establishing a condition-not owning health
insurance-that triggers a tax-the required payment to the IRS. Under that
theory, the mandate is not a legal command to buy insurance. Rather, it
makes going without insurance just another thing the Government taxes, like
buying gasoline or earning income. And if the mandate is in effect just a
tax hike on certain taxpayers who do not have health insurance, it may be within
Congress's constitutional power to tax. (Emphasis added.)
The thesis appears to be that just as the Congress can tax the
purchase of gasoline, so can it tax the
non-purchase of
gasoline and
therefore the non-purchase of insurance. That
does not follow; the Congress has
not taxed the
non-purchase
of gasoline. Nor does the thesis appear to be supported by the other examples
cited in the decision -- taxes on the
purchase of imported goods to
promote the sale of domestic goods, taxes on the
purchase of marijuana
and tobacco to discourage their use, etc. The Congress has not taxed
(previously) the
non-purchase of domestic goods or, for that matter,
services.
The question is not whether that is the most natural interpretation of the
mandate, but only whether it is a "fairly possible" one . . . . The Government
asks us to interpret the mandate as imposing a tax, if it would otherwise
violate the Constitution. Granting the Act the full measure of deference owed to
federal statutes, it can be so read, for the reasons set forth
below.
Were I writing a law review article it would be appropriate, as an
intellectual exercise, to dissect and criticize the Court's reasoning by
citations to prior authority and scholarly commentary. It might also be useful
to consider whether the Court's decision will spur to greater activity the Law
of Unintended Consequences or whether the effects were actually intended and
thought good. However here, for more practical purposes, that is not relevant
because the Supreme Court has spoken and what it said will likely remain "the
law of the land" until some later Supreme Court changes it.
Continuing from the majority opinion,
If it is troubling to interpret the Commerce Clause as authorizing Congress
to regulate those who abstain from commerce, perhaps it should be similarly
troubling to permit Congress to impose a tax for not doing
something.
The Court then attempts to explain why it does not see that as a problem.
Congress's use of the Taxing Clause to encourage buying something is . . .
not new. Tax incentives already promote,for example, purchasing homes and
professional educations. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate
as a tax depends only on whether Congress has properly exercised its taxing
power to encourage purchasing health insurance, not whether it can. Upholding
the individual mandate under the Taxing Clause thus does not recognize any new
federal power. It determines that Congress has used an existing
one.
There are various ways to "encourage" people to do or to refrain from doing
things. It has long been considered constitutional to provide tax credits and
deductions for purchases deemed desirable. It would be consistent with the
Constitution to provide annual tax deductions and credits to people who purchase
approved health insurance policies, even in amounts substantially greater than
the annual costs of such policies. Whether doing so would be bad policy is not
for the Court to determine. However, the imposition of
additional taxes
on those who do
not make such purchases is a novelty. Still, according
to the Court, that does not much matter because only money is involved.
[A]lthough the breadth of Congress's power to tax is greater than its power
to regulate commerce, the taxing power does not give Congress the same degree of
control over individual behavior. Once we recognize that Congress may regulate a
particular decision under the Commerce Clause, the Federal Government can bring
its full weight to bear. Congress may simply command individuals to do as it
directs. An individual who disobeys may be subjected to criminal sanctions.
Those sanctions can include not only fines and imprisonment, but all the
attendant consequences of being branded a criminal: deprivation of otherwise
protected civil rights, such as the right to bear arms or vote in elections;
loss of employment opportunities; social stigma; and severe disabilities in
other controversies, such as custody or immigration disputes.
By contrast, Congress's authority under the taxing power is limited to
requiring an individual to pay money into the Federal Treasury, no more. If
a tax is properly paid, the Government has no power to compel or punish
individuals subject to it. We do not make light of the severe burden that
taxation-especially taxation motivated by a regulatory purpose-can impose. But
imposition of a tax nonetheless leaves an individual with a lawful choice to do
or not do a certain act, so long as he is willing to pay a tax levied on
that choice.
The Affordable Care Act's requirement that certain individuals pay a
financial penalty for not obtaining health insurance may reasonably be
characterized as a tax. Because the Constitution permits such a tax, it is not
our role to forbid it, or to pass upon its wisdom or fairness. (Emphasis
added.)
The authority to tax -- the power to destroy -- gives the Congress tremendous
power to do stupid as well as wise things. Let's consider a not very farfetched
example. Suppose the Congress were to increase the income tax rate by fifty
percent for all eligible citizens who fail to vote in a specified Federal
election; voting is good and should therefore be encouraged. Perhaps fifty
percent is too much; how about ten percent? As to ObamaCare, the Court said, "we
need not here decide the precise point at which an exaction becomes so punitive
that the taxing power does not authorize it." It would, therefore, be up to the
Congress to decide how high is too high and (only maybe) for the Court later to
second guess it. That provides slim comfort at best. The Congress could probably
accomplish much the same thing by decreasing the tax rate, providing tax credits
or tax deductions in whatever amount it might wish for those who
do
vote, so why should it be unable to increase as much as it might wish the taxes
of those who
don't vote? Based on the Court's decision, a distinction
is far from obvious.
This post merely scratches the surface of what the Congress can now do
via its taxing powers to
force encourage people to do
whatever
it, in its infinite wisdom, considers good -- be it good for
CongressCriters themselves, for previously deprived U.S. citizens or residents,
for the country, for the global environment or for peace on Earth and good will
to men.
The power to tax far transcends the power to regulate commerce under the
Commerce Clause. The related problems transcend President Obama, the Congress
and even ObamaCare itself. Although repealing ObamaCare, defeating President
Obama and electing conservatives to the Congress will make many of us happy,
that will neither expunge the precedent created by the Court majority nor ensure
that no future Congress will do something similar in the health care or any
other context. It will not matter (nor should it, based on years of
jurisprudence) whether the enactment is bad policy or just plain stupid. As the
Chief Justice noted near the beginning the decision,
We do not consider whether the Act embodies sound policies. That judgment is
entrusted to the Nation's elected leaders. We ask only whether Congress has the
power under the Constitution to enact the challenged provisions.
. . . .
"Proper respect for a co-ordinate branch of the government" requires that we
strike down an Act of Congress only if "the lack of constitutional authority to
pass [the] act in question is clearly demonstrated." United States v. Harris,
106 U. S. 629, 635 (1883). Members of this Court are vested with the authority
to interpret the law; we possess neither the expertise nor the prerogative to
make policy judgments. Those decisions are entrusted to our Nation's elected
leaders, who can be thrown out of office if the people disagree with them. It is
not our job to protect the people from the consequences of their political
choices.
That is all true and correct. The Supreme Court does not guard us against
absurd congressional policy decisions. As to actions, wise or stupid, that
contravene the Constitution we can rely on the Constitution alone, as
interpreted by the Court (or perhaps on the veto power of the President) to
prevent them. True, we can try to elect to the Congress and to the presidency
only people who can be trusted to make wise and fair decisions; how's that been
working out? True also, we can also watch how our CongressCritters and President
vote and refuse to reelect those with whose decisions we disagree; how's that
been working out?
Perhaps a constitutional amendment forbidding the Federal taxation of
failures to purchase goods and services would help. Under
Article
V, an amendment can be proposed by the Congress upon the vote of two thirds
of its members or the Congress, "on the Application of the Legislatures of two
thirds of the several States, [the Congress] shall call a Convention for
proposing Amendments." An amendment proposed by the Congress or by the
convention becomes effective as part of the Constitution
when ratified by the Legislatures of three fourths of the several States, or
by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress;
The Constitution was intentionally made very difficult to amend, and that is
a good thing. Unfortunately, good and reasonable amendments are no less
difficult to achieve than are bad and frivolous amendments.
The only hopeful aspect of the ObamaCare decision is that it
may
encourage greater wisdom in electing
our CongressCritters and
Presidents. I hate to end on a sour note, but how likely does that seem?
First published at
Dan
Miller's Blog.
Article shared using the Free
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Tribune.
