John Roberts is said to be quite concerned about the way in which history will view his tour of duty as Chief Justice of the Supreme Court. Well, he doesn’t have to worry any longer; for his remarkable decision allowing Congress to impose a tax improperly and in a previously unconstitutional manner will secure his place in Court history for all time.
Very few—including Obama himself—believed that the scheme of presenting the individual mandate penalty as a tax would pass constitutional muster. The DOJ included the “the penalty is actually a tax” argument in an ObamaCare brief to the Supreme Court, to be sure. But that was a typical lawyers’ game of “throw everything against the wall, and see if it will stick.” It was upon the Commerce Clause powers of Congress—and to a lesser extent the Necessary and Proper clause– that the DOJ and Solicitor General Donald Verrilli depended to convince the Court that the mandate was constitutional.
“So if I am part of a family that does not buy health insurance in violation of the president’s health-care program and I have to pay [a fine] because of that, that is not a tax increase – that is not a tax on me?” asked Congressman Scott Garrett of Zeints. “The Affordable Care Act saves money,” Zeints evaded. But Garrett reminded the budget director that a moment earlier in his testimony, Zeints claimed there would BE no tax increase. “So [the mandate penalty], that’s not a tax,” pressed Garrett? “No,” Zeints responded.
Indeed, nowhere in the massive text of the Affordable Care Act is the individual mandate referred to as a tax. Although ordered to be collected by the IRS, the mandate is deliberately and diligently referred to as a “penalty” throughout. The reason? “To be a constitutional tax, it must be an excise tax, an income tax, or a proportional capitation tax.” These are the ONLY types of tax that the United State Congress has a recognized, constitutional power to impose. Cato Institute policy analyst and law professor Dave Kopel explains:
The 16th Amendment grants Congress the power to “collect taxes on incomes, from whatever source derived.” The Supreme Court has defined “derived” income to mean “undeniable accessions to wealth.” Here, the mere refusal to purchase a product is not any kind of “income” or accession of wealth.
Likewise, the penalty cannot be an excise tax. An excise tax is imposed on an event or item, such as the acquisition of a machine gun. Again, there is no event to be taxed, and never in American history has a federal excise tax been imposed on an American’s inactivity.
Thus, the tax is constitutionally a “direct tax” – similar to a head tax, or a tax on real estate. The Constitution requires that such taxes be imposed “in Proportion to the Census.” The mandate penalty is not so apportioned.
Kopel’s conclusion is startling:
The Obama tax theory, in effect, would give Congress the power to make laws on any subject, impose a fine for noncompliance, have the IRS collect the fine, and then claim that the entire regulatory structure is part of the tax power. The result would nullify Article I of the Constitution, which carefully grants Congress 18 specific powers – and does not grant a general power to legislate on everything.
With his ruling, Chief Justice John Roberts gives the impression of a judge desperately searching for a way to find a buddy’s illegal argument legal. As experts in the field of constitutional law comment on his decision, they must conclude that the Justice eliminated what little remained of the liberty we the people were asked by the Founders to safeguard for ourselves and future generations. What a disgrace. What a tragedy.
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