Chief Justice Roberts on Congress's awesome power to tax inactivity:
“First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity,” Roberts wrote for the 5-4 majority.Quin Hillyer:
Roberts said that while the Constitution protects Americans from regulation if they choose not to engage in a regulated activity, it does not protect them from taxation if they choose not to engage in a taxed activity.
“The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.”
Roberts said that his decision upholding the mandate as a tax, rather than as a use of the Commerce Clause, does not create any new federal powers. Instead he said it merely confirms that Congress used an existing power appropriately.
“Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchas¬ing 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.”
He has ruled that Congress can't mandate that an individual must choose economic activity over inactivity -- but then that Congress CAN tax the inactivity itself and give IRS powers (other than criminal prosecution, but presumably including wage garnishment, etcetera) to penalize the refusal to pay "taxes" on that inactivity. (Side note: Roberts said that this is okay because Congress has previously taxed people who were inactive. This is bunkum. Here, Congress is taxing the inactivity itself. This is unprecedented, and illogical. It means that any time Congress wants to force you to, yes, buy broccoli, it can impose a tax on your refusal to do so, and thus escape the limits on Commerce-Clause powers.) Even Roberts described this as "a tax on going without health insurance." I challenge anybody to give a single other example of there being "a tax on going without...anything." This blows aparts every notion of what a tax is. Governments tax things or actions; they do not tax that which is nonexistent.Husband on Twitter:
Think of all the things you didn't buy today and everything you didn't do. And you didn't pay taxes on any of them, you irresponsible fiend.Yes indeed. I'd ask for your suggestions but do we really want to help Congress bleed us dry?
Congress must be giddy tonight. Taxing things that never even happened: what kind of sweet revenue stream is that? Possibilities are endless
Two more, on taxes:
Q: When is a tax not a tax? A: Never! B: When it's convenient C: When we say so. D: All of the above. And vice versa.By the way, I brought up the "silver lining" that the Court has acknowledged limits on the Commerce Clause and husband laughed out loud.
“An unlimited power to tax involves, necessarily, a power to destroy.” Daniel Webster
Conservatives touting "limits" on Commerce Clause in Roberts opinion: call back when they actually limit something.Yeah.
A must-read from Byron York: Roberts' dodge at heart of Obamacare decision
After Long made his case, it fell to the administration's lawyer, Solicitor General Donald Verrilli, to argue that no, the mandate was not a tax, and therefore the case was not subject to the Anti-Injunction Act.Read the rest.
At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution's Commerce Clause, he had as a backup the argument that it was also justified by Congress' power to levy taxes -- in other words, that it was a tax.
Justice Samuel Alito saw the conflict right away.
"General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"
"No," answered Verrilli.
Most recent posts here. Follow us on Twitter here. Amazon store here.