What Taxing Power?

On June 29, 2012, in Uncategorized, by consinfo_user

Justice Roberts’ decision upholding the individual mandate of ObamaCare relied on the Congressional power to levy taxes. There can be no question that the taxing power exists, and it is quite broad. However, to say that it is unlimited in scope is wrong.

Roberts phrases it this way. “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 order¬ing individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.” This was the argument that persuaded Roberts.

If Roberts is correct, then Congress (before the ratification of the First Amendment in 1791) had the power to tax people for failing to join a church, or to tax churches for failing to participate in a government-proclaimed day of prayer. (Thomas Jefferson, as a state legislator, introduced a bill to do exactly that to Virginia churches.) Congress could amend ObamaCare to impose a tax on people who fail to join health clubs. It could tax people who fail to buy new cars at certain intervals (as yet a further payoff to the auto unions).

Amazingly, the New York Times has published a column by Richard Epstein describing the danger of this broad interpretation, and why it is not constitutional. This is must reading for every conservative.


Roberts did include one valuable concession in his opinion. He found that the penalty was actually a tax because it did not compel people to act in a certain way. Choosing to pay the tax is a genuine alternative, and he pointed to estimates that four million people will choose to go without insurance. Had the penalty/tax been so high that rejecting insurance would have been unthinkable, Roberts’ own logic would have required him to reach a different conclusion. He allows the taxing power to influence decisions, not to compel them. That is a weak limit, but at least it sets a boundary.

Charles Orndorff


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