Congress’s taxation power: The new Interstate Commerce Clause

Although Thursday’s Supreme Court’s ruling on the Affordable Care Act restricted the degree Congress can use the Interstate Commerce Clause, the decision’s expansion of Congress’s taxing power sets a bad precedent.

Some conservatives hunting for a silver lining have argued that at least the ruling limited the reach of the Commerce Clause.

But what have we gained?  What good is restriction of the Commerce Clause if, due to the expansion of other powers, it can’t protect us from abominations like Obamacare?

Thanks to Chief Justice Roberts, we now know that the federal government can levy taxes for any reason it wants, whether it needs the money for any enumerated power or not — and remember that the individual mandate, if it operated properly, would result in $0 revenue.

The ruling expanded Congress’s taxation power in at least three ways.  First, we now know that non-activity can be taxed.  When has the federal government ever taxed non-activity?  Penalized, yes—but taxed our not doing something?

Second, we know that even something that was explicitly disavowed as a tax by its creators and defenders can be considered a tax, if five Supreme Court justices feel like rewriting the law and considering it one.

The Supreme Court rejected the Obama administration’s justification for the Affordable Care Act’s individual mandate as being covered by the Interstate Commerce Clause, since the law as written would not regulate commerce but compel it.

The court found that it was constitutional for Congress to tax people who refuse to buy health insurance from private companies through the mandate.

The administration asked the court to consider the mandate a tax for the purpose of preventing the plaintiffs from suing, since the Tax Anti-Injunction Act only allows taxes to be challenged in court after they have been paid.

Roberts and the majority agreed that the penalty could not be considered a tax for the question of whether the plaintiffs could bring suit now.

The chief justice admitted, “Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes.’”

Yet in the majority opinion he wrote, “The federal government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”

And therein lies the rub: Not purchasing health insurance is not an “activity.”  It is a non-activity.  (The hint is the word “not.”)

According to Roberts’ (correct) reasoning, “not buying health care” is not a commercial activity the government can regulate through the Interstate Commerce Clause.  Yet somehow “not buying health care” is a commercial activity the government can tax.  How can “not buying health insurance” be non-activity and activity at the same time?

“[T]he power to tax… was designed to enable Congress to obtain the funds needed to carry out its other enumerated powers or ends.  It was not, as Madison made clear in Federalist 41, and often on the floor of Congress, an independent power to tax for any purpose at all,” Roger Pilon writes in a column on Real Clear Politics. “Search as you will through those 18 enumerated powers and you will find no power to enact Obamacare or anything like it.”

So now we can rest assured that Congress will never mandate that we buy broccoli, drink skim milk, or do calisthenics. It’s just going to tax us to death if we don’t, and with the imprimatur of a “conservative,” Republican-appointed Supreme Court chief justice.

Comments

Polititainment

WH responds to 'Deport Justin Bieber' petition

Despite the pleas of more than 270,000 Americans to deport Justin Bieber, the White House has chosen not to weigh in on the issue. However, the Obama administration did use a petition calling on the White House to revoke the pop artist's green card to plug President Barack Obama's plan for immigration reform.

Secret Service once threatened Mr. Met's life

Mr. Met sure has a lot of fans in New York. But the larger-than-life mascot definitely doesn't have one in the Secret Service, who threatened to shoot and kill him if he approached President Bill Clinton, according to a firsthand account.

Jill Biden on Joe: "I fell in love with the boys first"

Second Lady of the United States Dr. Jill Biden didn't marry Vice President Joe Biden for his sense of humor -- instead, she "fell in love" with his two sons first.

Joe Biden's first Instagram photo

Ladies and gentlemen of this great nation, rejoice! Vice President Joe Biden has joined Instagram -- and his first post is everything you ever dreamed it would be.

Celebrate Tax Day with this ditty

What better way to celebrate curse Tax Day than with a little toe-tapping, finger-snapping ditty that perfectly describes how we all feel about the Internal Revenue Service?

White House

PETA is peeved with Michelle Obama and used little girls to tell her about it

First Lady Michelle Obama has earned the ire of three young girls. But they're not upset with her less-than-filling "Let's Move!" school lunches. Instead, these youngins are upset about the real eggs used in the White House Easter Egg Roll.

Jay Carney: “Never been a more transparent administration”

Despite consistent objections by journalists that the White House overly restricts press access, Press Secretary Jay Carney believes that there has "never been a more transparent administration."

Jay Carney: Toughest interview for Obama in 2012 was with Jon Stewart

Give comedian Jon Stewart a gold star sticker. The host of The Daily Show was President Barack Obama's toughest interviewer during the 2012 election cycle, White House Press Secretary Jay Carney said on Thursday.

The most powerful selfie in the world

Joe Biden — he's just like you, and he takes selfies, too.

Obama: Republicans a threat to the right to vote

President Barack Obama slammed Republicans on Friday for supporting voter identification law and labeled the GOP as a threat to the right to vote.

Congress

Rep Black: GOP budget makes a path to a bright future

Our nation is $17.4 trillion in debt and out of control Washington spending has no end in sight. In fact, the nonpartisan Congressional Budget Office estimates that on our current trajectory we will return to $1 trillion annual budget deficits by the year 2022.

Cruz: Impeach Holder

Sen. Ted Cruz (R-Texas) pulled no punches when criticizing Attorney General Eric Holder on Thursday, as he called on Congress to impeach the Department of Justice head.

Pelosi: GOP not acting on immigration because of race

House Minority Leader Nancy Pelosi (D-Calif.) pulled the race card when speaking about Republicans' inaction in passing comprehensive immigration reform and said "race has something to do" with the GOP not bringing such legislation to the House floor.

House passes Ryan's budget plan

The House on Thursday passed a 10-year Republican spending plan drafted by Budget Committee Chairman Paul Ryan.

Read more at The Washington Examiner.

Harry Reid's Koch-fueled meltdown

Senate Majority Leader Harry Reid (D-Nev.) has been in a Koch-fueled rage, seizing moments left and right (mostly from the left) to bash Charles and David Koch.