Then, in the remainder of that opinion upholding the Obamacare law and its"penalty" as a "tax," Justice Roberts administered the coup de grace to all pretense that the federal government was in truth one of limited powers:
"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 ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.
"There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.
The chief justice then upheld the Obamacare "tax" and took to its logical conclusion what Treasury Secretary Alexander Hamilton had written in his 1791 Report on Manufactures to the House of Representatives:
"The National Legislature has express authority 'to lay and collect taxes ... to ... provide for the ... general welfare,' with no other qualifications than (1) that 'all ...excises, shall be uniform throughout the United States; and (2) that no capitation or other direct tax shall be laid, unless in proportion to numbers, ascertained by a census' ... and (3) that 'no tax or duty shall be laid on articles exported from any State.'
"It is, therefore, of necessity, left to the discretion of (Congress) to pronounce upon the objects which concern the general welfare ... The only qualification of the generality of the phrase in question, which seems to be admissible, is this: That the object, to which an appropriation of money is to be made, be general, and not local; its operation extending, in fact, or by possibility, throughout the Union, and not being confined to a particular spot."
Under Hamilton's formulation, Congress is the sole judge of what concerns the general welfare. Where Roberts goes beyond Hamilton is that Roberts would say Congress has power to tax not only acts, but omissions. Under the Roberts' formulation, Congress -- once it determines that its tax concerns the general welfare -- can tax anything! It can tax buying insurance or not buying insurance. It can tax eating broccoli, or not eating broccoli. It can tax having children or not having children. It can tax engaging in a sexual act or not doing so.
In 1828, during the course of the nullification crisis, John C. Calhoun in his South Carolina Exposition and Protest, foresaw the threat to the the sovereignty of the states by vesting in any branch or department of the federal government the power to "act as judge" in controversies between the federal and the state governments, and between the federal government and the people -- that is, to "act as judge" in a case where it also was either "plaintiff" or "defendant."
"If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that (the states) hold their portion by the same tenure as (the General), it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. 'The right of judging,' in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the 'exclusive right of judging' of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised) is to convert it, in fact,into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights. It is impossible to understand the force of terms, and to deny so plain a conclusion."
To say that Congress alone is the sole judge of the general welfare and that once Congress decides that an activity -- or inactivity -- concerns the general welfare and should be taxed, is to give Congress unlimited power.
When that power is coupled with the power of the federal government to define what is and what isn't religious activity, and what is or what isn't free speech all notions that the federal government is a government of "limited powers" becomes a cynical fiction.
The "power to tax," in the words of Chief Justice John Marshal, is the "power to destroy." If you doubt that assertion, simply consider what the Internal Revenue Service has been doing to
conservative groups. Tea party-type groups exist to speak in favor of limited government. The government, by labeling their free speech as "political activity" seeks to abolish their 1st Amendment rights.
By denying that the Catholic Church, in operating universities and charities, is engaged in religious activity, the government seeks to deny the church "the free exercise of religion," Roberts' holding is a logical extension of Hamilton's position. But in the words of Justice Oliver Wendell Holmes, "the law is not logic; it is experience."
The American experience is that we declared independence when a king tried to tax sugar and stamps. Would the people who ratified our Constitution have done so had they understood that it would mean what Mr. Justice Roberts now says it means? No way!
Posted Online: Aug. 03, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
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