Paul L. Caron

Friday, June 29, 2012

Jensen: Does the Taxing Clause Give Congress Unlimited Power?

Tax Analysts Erik M. Jensen (Case Western), Does the Taxing Clause Give Congress Unlimited Power?, 135 Tax Notes 1515 (June 18, 2012):

The idea has gained currency that the Taxing Clause in the Constitution gives Congress the power to do anything, or almost anything, that would be funded by taxation. Most recently, that argument has been advanced in connection with the litigation about the individual mandate in the Obamacare legislation — by, among others, legal philosopher Ronald Dworkin. If the penalty for failure to acquire suitable insurance will be a tax, then, it is argued, the requirement to acquire insurance, the mandate, will itself be a valid exercise of the taxing power. If that’s right, it certainly isn’t obviously so. Since almost everything the national government does is funded through taxation, that understanding would lead to a conception of congressional power that is effectively unlimited, and the Taxing Clause would trump almost all other grants of congressional power in Article I, section 8.

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"The general welfare language is loyal to the mandate giving to the drafting committee and truly represents the national power."

If the general welfare clause gave Congress carte blanche to use the tax power to accomplish whatever it deemed to be for the general welfare of the country, Professor Johnson, what was the point in enumerating all of the other powers in Article I, Section 8?

Posted by: guy helvering | Jul 2, 2012 10:55:03 AM

Why is nobody looking at the tax fairness at
application. The tax burden is personal and individual (hence the tax penalty).

Yet if the tax burden is paid by the employer it is free-? How can I receive a gift and not pay taxes on the portion above $11k-? If it is a condition of my employment how can that not be construed as part of my total income-? I cannot believe the IRS will allow another to pay my taxes without considering that I have received a taxable benefit-!

If America sees their Free Lunch Employer Provided Health Insurance as taxable benefit; I suspect many voters and retirees will consider that a good reason to vote.

I believe that Justice Roberts gave America a huge
gift by treating the law as a tax. It is a political problem with a political solution. I have enough faith in the IRS to believe that they will not allow another to pay my taxes without considering it either a gift or income.

I wish more would look at the actual, real-life application of the law rather than wasting time looking at the inside baseball style navel gazing.

As employer and/or as an independent citizen how do I meet my tax burden and avoid the penalty-?

Posted by: AndyJ | Jul 1, 2012 10:48:09 AM

The Constitution gives Congress the tax power to provided for the common defense and general welfare of the Unites. This is the broadest of the articulations of the jurisdiction of the National government and it is the right one. The Committee on Detail which drafted the text had the mandate to dress for the public the Resolutions passed on the floor of the Convention. The binding Resolution was that Congress would have the power to legislate in any case whatsoever for the general interests of the Union. The general welfare language is loyal to the mandate giving to the drafting committee and truly represents the national power.

Posted by: Calvin H Johnson | Jun 30, 2012 2:01:13 PM

Maybe I'm reading it wrong, but it seems that this ruling has removed all conceivable limitation on Congressional power. What is to stop Congress from creating a law which recognizes my right to own firearm, but decrees firearm ownership to be a "taxable condition" and sets the tax rate at $1 million per year per firearm? Could Congress pass a law that fully respects my freedom of religion, but declares that belonging to the church of [insert religion here] is a "taxable condition"? I mean, sure, Roberts may have "gutted the commerce clause", but it seems like he also just granted Congress unlimited power over every aspect of everything.

Posted by: Taco | Jun 30, 2012 8:47:46 AM

Justice Roberts analogy would work, were it not for the fact that those trying to get elected are in fact chosen by the very few individuals that pick the candidates for the electorate to choose.
The fact is that a very small percentage actually exercise their franchise.
Tis a shame, but true.

Posted by: R Bittle | Jun 30, 2012 7:09:31 AM

I tend to be in the camp that Roberts' opinion made the Supreme Court irrelevant as long as the legislation is written to include a tax penalty. As some of you are saying, maybe its always been this way but it wasn't made as crystal clear as it was yesterday.

Any party that holds a strong majority across the Legislative and Executive branches can use the taxing power (thus police power) to coerce citizens into complying with laws that might otherwise be deemed unconstitutional. Those laws could then significantly impact future election results.

"All citizens must declare on their tax forms whether they are a member of the X religion or political party. Those that indicate that they are members of the X religion or political party receive a tax credit of $10,000. All others are subject to the tax penalty outlined in the American Freedom of Association Act. Proof of affiliation with, and requisite donations to, X religion or political party must be provided as well as a copy of your 1099-DNC form. Failure to provide proof...etc, etc."

Who knows, maybe Roberts did us all a favor and showed us that there really are only two branches of government. I can see the "Citizens United Against Corporate Power Act. All corporations and "Super PACS" are subject to a 90% tax on all funds raised or used to purchase politically associated advertising..etc, etc."

I guess the lesson is...all of our votes mean even more now. Roberts kicked us out of the nest. Constitutional Convention anyone?

Posted by: NW Boiler | Jun 29, 2012 11:18:13 PM

Mancer, if the Constitution gave unlimited power to Congress to tax, then why was the 16th Amendment necessary? The types of taxes allowed are specified in the Constitution, and it is not clear to me that the individual mandate tax is any of them.

Posted by: b | Jun 29, 2012 10:10:39 PM

guy helvering: "Roberts' opinion contains language limiting Congress' power to use the Tax Clause to do anything it wants..."

But none of that language actually limits anything--only the arbitrary rate of punishment.

"the tax is going to have to be low enough to not constitute a penalty (less than 5%?) but high enough to serve as an incentive to have people do whatever Congress wants them to do."

I've commented elsewhere that this is a frivolous, arbitrary, and ultimately meaningless distinction. Roberts has stamped USSC imprimatur on the concept that the government can compell action, so long as a non-punitive tax is attached. And who decides what is punitive? Why, the court! Apparently the Roberts test (although he says he doesn't have to apply it in this case) is whether the penalty--err, tax--is less than the cost of the thing being mandated. With modern life so many decisions are fundamentally economic questions. The accumulated burden of federal behavior-taxes will force the individual to comply. No one but rich people will be able to act independently of government dictate.

Posted by: b | Jun 29, 2012 10:08:11 PM

Your point? Most gun control laws are ALSO tax laws, because the Constitution would never have permitted gun registration in 1933 - when the ban on machine guns and sawed-off shotguns was put into effect. Oh,I'm sorry; there is no "ban", just a $200 "tax" (and in 1933, $200 was a LOT of money!) that you are required to pay, but which the government is not required to accept.

Gun control laws, or health care laws, or tax laws, will be written as expansively as the politicians can imagine - and the recourse is to vote the rascals out. "There are four boxes to be used in the defense of liberty: soap, ballot, jury and ammo. Please use in that order." It's time to use Box #2.

Posted by: Ken Mitchell | Jun 29, 2012 5:27:56 PM

The GOP definitely needs to pass a taxing law that is non-ridiculous (they have to be re-elected after all) and abhorrent to the Left.

SCOTUS will suddenly decide that unlimited taxing is a very bad thing.

Posted by: mockmook | Jun 29, 2012 5:06:46 PM

The US Congress has always had the near unlimited power to tax the citizenry. Section 8 of the US Constitution states, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States" and with the exception that taxes must be uniform across the various states, puts no limits on this power. In fact, constitutional limits on congressional taxing power have only come from amending the US Constitution, e.g. the 24th Amendment which made Poll Taxes illegal. Traditionally it has only been the people's intolerance of those taxes which has kept it somewhat in check (obviously it goes crazy every once in a while and people need to be reminded why they shouldn't vote tax and spenders into office). That being said, we also have the responsibility to vote those who misrepresent the will of the people and overburden us with taxes out of office and replace them with representation that better serves our country.

Posted by: Mancer | Jun 29, 2012 4:31:23 PM

Guy Helvering:

Quoting you: "Roberts' opinion contains language limiting Congress' power to use the Tax Clause to do anything it wants"

Is that intended to mean that:
A) the opinion imposed serious limits on Congress' power (the way I originally read it)

or B) the opinion 'air quotes' "limited" congress to doing anything it wants (the way I imply your reply to read).

Do you believe this opinion would support the Constitutionality, if appropriately originated in the house, passed by the Senate, and signed by the President, of a law that required citizens to lick the boots of their elected officials or pay a tax?

Posted by: Daedalus Mugged | Jun 29, 2012 3:36:58 PM

Guess what I'm thinking about making my new religion!

If The Amish Are Exempt From Obamacare Tax, Why Isn't My Religion?

Some groups do have a religious conscience exemption, but Christian Scientists aren’t among them. The Amish are exempt because they rely on a community ethic that prohibits government intervention. Their communities pay for the costs of their health care.

I don’t pay for OR use health insurance. If the Amish are exempt from this, why can’t I be?

"...exempt because they rely on a community ethic that prohibits government intervention."

Why, that describes most of the South! But, I can grow a beard and wear a funny hat if that exempts me.

Posted by: Woody | Jun 29, 2012 2:41:39 PM

Daedalus Mugged:

You misread my comment. "X" is simply a hypothetical thing Congress wants people to do, but which it doesn't have the constitutional authority to mandate under some clause other than the Taxing Clause. Purchasing health insurance would be an example, since Congress can't otherwise require people to buy insurance.

I'm still ticked off that the direct tax issue wasn't discussed more fully (even the dissenters, who mentioned it in passing, didn't want to go there).

Posted by: guy helvering | Jun 29, 2012 2:38:24 PM

Wait, so if this is a tax, then don't we have an Origination Clause problem?

I haven't gotten around to reading Munoz-Flores, so i don't know the state of the law on that point. If i had to guess, i'd say the Court doesn't enforce it.

Posted by: George W Christ | Jun 29, 2012 2:11:42 PM

Pardon me, the Congressional Research Office released the report on May 25, 1979.

Posted by: Tom22ndState | Jun 29, 2012 12:35:10 PM

Nonsense, perhaps the time has come to rediscover the limits on federal taxation?
ALL direct taxes must still be proportioned to the census and presented to the States for collection however the States deem appropriate. That's right, the income tax is an indirect tax! Much is said about repealing the 16th amendment. That is exactly the wrong course as the SCOTUS ruled the amendment to confer no new power of taxation, but did affirm indirect taxation (duties, imposts, and excise taxes).

Perhaps the fourth party to the Constitution, we the people, can digest the relevent SCOTUS cases before and after the ratification(?) of the 16th amendment- Pollock v Farmers Loan and Trust Co, Brushaber v Union Pacific Railroad, Stanton v Baltic Mining Co, Flint v Stone Tracey and there are others. See it for yourselves! Perhaps you'd rather put your trust in the Congressional Research Service instead of yours truly, I don't blame you there.

The Congressional Research Office (as it was then named) report from 1079 would be more convenient? It is entitled "Some Constitutional questions regarding Federal tax laws"
The report number is 79-131A. We have been lied to and misled since at least WW2, now let's get to work. Happy weekend and good reading.

Let all be Breitbart
ABO 2012

Posted by: Tom22ndState | Jun 29, 2012 12:30:11 PM

"wielded by representatives who are still subject to those pesky recurring elections by the voting public"

In obscenely gerrymandered districts which, with very rare exceptions, return incumbents 90% of the time every 2 years - despite the fact that Congress as an institution has an approval rating of 10% to 15%.

It is almost always liberal Courts which are activists - conservative Courts almost always have a Statist mole that seeks comfort in the centralization of power in DC and the institutional and intellectual castration of the third branch of government.

Posted by: cas127 | Jun 29, 2012 12:27:24 PM

Guy Helvering,

I think you misread the opinion. You said "where X is something that Congress doesn't have the power to mandate under some other constitutional provision."

So what 'other' constitutional provision created the power to mandate the purchase of health insurance? We know it isn't commerce or the necessary and proper clauses. There was not authority other than the authority to tax cited. They can order us to do anything, so long as the 'penalty' tax is not so punitive as to be categorized as a punitive penalty as opposed to a tax. So they can't say lick my boots or pay one trillion dollars, but they can say lick my boots or its 5% of your income.

That's not much of a limit.

Posted by: Daedalus Mugged | Jun 29, 2012 12:25:25 PM

It seems to me, according to Roberts "logic" that Congress doesn't even have to call a tax a tax, thus escaping the political consequences which would otherwise ensue. After all, that can be left to the Supreme Court to determine later.

My summation of the Robert's decision is different from many on the right trying to cover Roberts.

The Commerce Clause was not protected, or defined. Roberts rendered it irrelevant by using not the Constitution per se, but the IRS code. That's a comforting thought, isn't it?

Posted by: Dantes | Jun 29, 2012 11:51:02 AM

Only a heavily armed citizenry can save us now.

Posted by: Walter Sobchak | Jun 29, 2012 11:26:06 AM

Most of the hypotheticals, above, are already the case:

I pay less tax if I buy government approved windows (energy efficiency tax refund). I pay less tax if I buy a government approved vehicle (electric car rebate). I pay less tax if I have a government approved job (farm subsidies). Etc...

So, now, I pay less tax if I buy health insurance.

While I don't think the court should override congress's definitions (if congress says it is not a tax, then it's not a tax), there is certainly no groundbreaking precedent in "if you don't do this, you pay more taxes".

Posted by: mrsizer | Jun 29, 2012 11:13:44 AM

Roberts' opinion contains language limiting Congress' power to use the Tax Clause to do anything it wants:

"Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motiveor effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it losesits character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” Kurth Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra, at 38).

We have already explained that the shared responsibility payment’s practical characteristics pass muster as atax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting))."

For example, Congress isn't going to be able to impose a tax equal to 10% of one's income if he fails to do X, where X is something that Congress doesn't have the power to mandate under some other constitutional provision. Roberts' discussion of the Drexel Furniture case and the illustrations in footnote 8 suggest that if Congress chooses to use the Taxing Clause to mandate something, the tax is going to have to be low enough to not constitute a penalty (less than 5%?) but high enough to serve as an incentive to have people do whatever Congress wants them to do.

Posted by: guy helvering | Jun 29, 2012 11:11:54 AM

Okay, so it's now deemed constitutional for the U.S. Government to tax me for not doing something.

Please explain: what's to keep the government from taxing me for not being black?

Or, if overt acts are required, what's to stop the government from imposing a prohibitive tax on me because I've never walked on Mars?

Ultimately what stops the government from doing such things is the ballot box. Step out of line, Congresscritters, and we WILL remind you whom you work for.

Posted by: Daniel in Brookline | Jun 29, 2012 11:00:27 AM

There are other limitations on the taxing power, but the new notion that Congress can tax inactivity is very troubling to me.

I think, therefore, that it is time for a 28th Amendment. I believe something along the lines below would pass 3/4 of State Legislatures:

The Federal Government's power to tax is limited to the power to tax income and the power to lay duties and tariffs. An income tax is a tax on the transfer of money or wealth over the course of a calendar year. Such tax may only be structured as tax of a percentage of all or some of the transaction amount. A duty or tariff is a tax on the sale of a good or service. Such tax may be structured as either a percentage of the cost of the good or service, or a flat rate corresponding with one or many units of the good or service. Congress may enact credits and exceptions to taxation necessary and proper to the pursuit of the enumerated powers set forth in Article I. However, Congress may not condition a tax on the failure or refusal to take any action.

Posted by: CenterRightMargin | Jun 29, 2012 10:54:55 AM

Article I Section 9 Clause 4:
No capitation or other direct tax shall be laid, Unless in proportion to the Census or other Enumeration.Herein before directed to be taken.

Why is the penalty, which is a flat amount assessed on everybody, not a direct tax? The amount is a minimum of $95, and the lesser of 1% of your income and A cap of some amount that varies.

Also, exempting Muslims and Amish from this tax should not be constitutional. Maybe excusing American Indian tribal members is OK because of their sovereignty.

Posted by: Not convinced | Jun 29, 2012 10:36:17 AM

"It may well be that the constitution does allow for taxation without any specific limitation, but raising taxes is so politically unpopular that the framers probably assumed it couldn't be consistently abused. "

To the contrary, the framers limited tax power rigorously, which is why the government required the 16th Amendment to permit a previously forbidden income tax.

This new ACA Tax obviously isn't an income tax, so unless it is one of the other types of allowed taxes which were permitted prior to that, it should not permitted by the Constitution.

The framers did probably assume that taxes would be called taxes when Congress voted on them.

Posted by: Bryan C | Jun 29, 2012 10:31:40 AM

> It was originally argued that if the ACA had: Provided for an arbitrary tax increase coupled with an equal tax break for purchasing health insurance, there would have been little question to the constitutionality of the bill.

That's not immediately obvious.

The federal govt can levy exise taxes (taxes on transactions), tariffs (taxes on imports/exports), income taxes (16th amendment), and section 2, 8, 9 (article 1) taxes. (The only remaining tax mentions in the constitution are amendments prohibiting poll taxes.)

The ACA tax isn't an exise tax, a tariff, or income tax. It doesn't seem to be a section 2, 8, 9 tax either.

So, how is it a constitutional tax?

Posted by: Andy Freeman | Jun 29, 2012 10:31:12 AM

The Founding Fathers set up a government with enunmerated and limited powers. So who believes they also granted an unlimited power to tax? Logic and history say otherwise. Roberts is a dolt and his opinion reflects that.

Posted by: John Burrows | Jun 29, 2012 10:25:02 AM

Could a Congress put a $5,000 tax on the use of abortion services and make care providers issue tax records when abortions are performed?

Posted by: Joe | Jun 29, 2012 10:24:25 AM

Well, if this unfettered taxing power existed all the time, nonjusticiable and limited only by political choices, Roberts has done us all a favor and added an Amendment to the Tea Party's to-do list.

Maybe if we taxed everyone $1000 and made them watch Hannity to get it back at $10/hour the Amendment would squeak through.

Posted by: Kevin M | Jun 29, 2012 10:05:04 AM

I'm surprised that nobody has mentioned how Congress has long used the tax code to get around that pesky 2nd Amendment.

If Congress wishes to make a certain act illegal, all they apparently have to do is to tax it, and then refuse to collect the taxes. Presto, anyone who performs said act is now in violation of the tax code.

Posted by: Big D | Jun 29, 2012 9:59:01 AM

Kind of contradicts the conservative argument that Roberts just affirmed (in the AFA arguments) that the federal government's powers are limited. If we thought the liberal interpretation of the commerce clause to allow ObamaCare would open the floodgates, and could require us to buy American cars only (for the 'good of the country'), why couldn't a tax (penalty) now be imposed for everyone who buys a non-American car. I can't see any reason under Roberts thinking that would not be completely allowable.
Seems Roberts ignored the whole issue of whether Congress has the power to do all the things the AFA does beyond the mandate. How did all that control suddenly become unimportant vis a vis 'enumerated powers'? Maybe the fact that we have 'accepted' controls like Social Security and Medicare, AFA is really only enlarging the age group of those being controlled, the slippery slope does it again.

Posted by: Leo DeAngelis | Jun 29, 2012 9:54:01 AM

Time to repeal the 16th-A to put the brakes on Congress' taxing power; and throw in the 17th-A too, to give States a renewed voice in the affairs of the Country.

Posted by: AD-RtR/OS! | Jun 29, 2012 9:51:03 AM

The left believes gubmint power should be unlimited. I and most conservatives disagree, but for liberals, unlimited power is a function not a problem.

Posted by: Dennis | Jun 29, 2012 9:31:54 AM

The taxing power is broad but is expected to be limited to the elections every 2-4-6 years so that changes can occur when the voters are sufficiently outraged.

My question regards the application of the tax clause alongside the requirement to purchase health insurance.

I we assume three machinists all with same size family and income ($100,000). "A" receives health insurance through union employer and it is gold plated, Cadillac plan. "B" receives insurance through non-union employer. "C" runs his own shop and buys his own insurance with his after-tax dollars. Each has insurance, but each is receiving a very different product and each plan is treated different by the IRS. How is this equal application of the law-?

Two are received with no personal tax applied. One pays with post-taxed income. All three have a different net wealth burden.

Will the insurance mandate as a tax cause employer provided insurance to be a taxable benefit-? Will the tax rate be a certain minimum rate and all benefits above that be treated as a taxable benefit-?

Nobody will act before this time next year, at the earliest.

I suspect that the uneven application between individuals will be a very tough problem to unwind...

Thanks for making stuff more clear and providing insight to what-it-all-means.

Posted by: AndyJ | Jun 29, 2012 9:23:12 AM

It was originally argued that if the ACA had: Provided for an arbitrary tax increase coupled with an equal tax break for purchasing health insurance, there would have been little question to the constitutionality of the bill.

It is safer to have the fee declared a Tax. The federal government already has the power to increase taxes and provide tax breaks pretty much at will. Voters also have a habit of responding to new taxes at the voting booth.

Posted by: James | Jun 29, 2012 9:16:53 AM

For those trying to find a silver lining: I do not find much comfort in the idea that the government gutted all Constitutional limits on federal power on commerce and necessary and proper clause grounds, but now they have to call it a tax to gut the Constitution. If congress passed and the President signed a law that every year citizens had to travel to DC (interstate commerce!) to lick the boots of their Representative, Senators and President, on the basis that enhancing respect for government authority is necessary and proper and contributes to the general welfare, would this court find it Constitutional? So long as the penalty for non-compliance could theoretically construed as a tax, say another 10% of income, I believe it would.

Posted by: Daedalus Mugged | Jun 29, 2012 9:08:39 AM

That's my question too. If there is no limit on the taxing power, could a President Romney and a Republican Congress require every family in the country to buy a complete set of the works of Friedrich Hayek, and spend an hour a day reading them, or face a fine of $100,000 ? Now that would be change we can believe in !

Posted by: John Galt | Jun 29, 2012 8:51:08 AM

What it most assuredly means is that all sorts of things that don’t look like a tax will be styled as a tax in order to square it with the Constitution. Maybe the government cannot make you eat broccoli, but it can now tax you for not buying broccoli. Or for not having the correct windows in your home, or for anything you are not doing that the government thinks you should be doing. Roberts’ strange opinion (“intellectually shabby” opinion in Richard Epstein’s words) takes its place in the Supreme Court hall of shame next to Wickard v. Filburn.

The Supreme Court has never been any good at upholding liberty when the government seeks to expand its powers beyond anything the founders could have ever dreamed of in their worst nightmares. For example, it finds that flag burning and lying about having a medal of honor is protected speech but easily approves severe restrictions on political speech in an election campaign.

Posted by: TeeJaw | Jun 29, 2012 8:32:55 AM

Before we all start running around with our hair on fire, let's remind ourselves that such congressional power is wielded by representatives who are still subject to those pesky recurring elections by the voting public -- unlike the various (and numerous) czars we've recently come to know.

Posted by: brotherStefan | Jun 29, 2012 8:32:07 AM

Using ObamaCare as precedent would it be legal to pass a law providing -

Failure to prevent unwanted pregnancy resulting in abortion. Each parent – taxed.

Posted by: jasond | Jun 29, 2012 8:31:42 AM

It would seem this is a theory-versus-practice situation. It may well be that the constitution does allow for taxation without any specific limitation, but raising taxes is so politically unpopular that the framers probably assumed it couldn't be consistently abused. Today, with nearly half of the population having an effective tax rate of zero, it may be time to propose a tax limitation amendment--say mandatory refunds if tax revenue exceeds a certain percent of GDP.

Love or hate the SCOTUS ruling, it certainly has focused the dialog on what is the proper scope of government power.

Posted by: Keith | Jun 29, 2012 8:27:39 AM

That's right! If it's passed by both houses of Congress and signed by the President, there si nothing that John Roberts won't let them do. You Legal Beagles can spin it anyway you want to, but John Roberts yesterday sounded the death knell of Congressional restraint.

Posted by: PawPaw | Jun 29, 2012 8:25:33 AM

Certainly it appears at first blush that Roberts tried to rein in the Commerce Clause, but he also blew the doors off any limitations on the Federal govt's power to tax. Maybe this was all just waiting to be said, but it sure looks like the USG can now tax anything, including levying a tax on nothing (i.e., inactivity--no transfer of assets, no flow of funds, not even possession of assets). It's hard to see where, at the end of the generations of litigation that this will start, clever people won't use the taxing power to get the same results they would have used an expanded Commerce Clause to get to.

Posted by: Marty | Jun 29, 2012 8:15:55 AM

Under 5A, a person cannot be compelled to testify. However, However, under the Roberts Doctrine, Congress can pass a tax on people who refuse to testify. Say, for 90% of their GTI.

Same for people who refuse police access to their homes without a warrant.

[Actually, this is an extension of: "Debtors' prisons may be illegal, but we'll get you on contempt of court"]

No wonder Roberts and the liberal branch had no compunctions about limiting the Commerce Clause. Who needs it?

Posted by: great unknown | Jun 29, 2012 8:12:39 AM

It certainly seems that the court has upheld the view that government power is unlimited as long as the calculation of taxes is part of the implementation of that power. If the ownership of acceptable insurance is a valid part of the calculation of taxes, couldn't ownership of the "right" kind of vehicle also be a valid calculation in taxation? Couldn't the government say, "Individuals must purchase a GM vehicle every 5 years, or pay $15,000 for individuals/$22,500 for families in additional taxes"? Wouldn't the burden of this taxation be so onerous that only the super wealthy would be able to afford the additional cost of owning a non-GM car? It seems that courts have determined the tax code allows for complete top-down control of the economy.

Posted by: Publius | Jun 29, 2012 8:04:11 AM

So, our constitutional rights end where the IRS code begins?

Posted by: John in Texas | Jun 29, 2012 7:58:26 AM

Taxing clause gives Congress unlimited power only if the American people allow themselves to be taxed in that way. That's what Roberts way trying to say when he said the court's job is not to protect the people from their political choices.

Posted by: Kim Priestap | Jun 29, 2012 7:53:33 AM