NAPOLITANO: Roberts unleashes vast federal power
Basis for high court ruling not found in the Constitution
If you drive a car, I’ll tax the street,
If you try to sit, I’ll tax your seat.
If you get too cold, I’ll tax the heat,
If you take a walk, I’ll tax your feet.
-The Beatles in “The Taxman”
Among the 17 lawyers who have served as chief jus- tice of the United States, John Marshall - the fourth chief justice - has come to be known as the “great” chief justice. The folks who have given him that title are the progressives who largely have written the history we have all been taught in government schools. They revere him because he is the intellectual progenitor of federal power. His opinions over a 34-year period during the nation’s infancy - expanding federal power at the expense of personal freedom and the sovereignty of the states - set a pattern for federal control of our lives and actually invited Congress to regulate areas of human behavior nowhere mentioned in the Constitution. He was Thomas Jefferson’s cousin, but they rarely spoke. No chief justice in history has so pronouncedly and creatively offered the feds power on a platter as much as he.
Now he has a rival.
No one can know the true motivations for the idiosyncratic rationale in the health care decision written by John Marshall’s current successor, Chief Justice G. John Roberts Jr. Often, five-member majorities on the court are fragile, and bizarre compromises are necessary to keep a five-member majority from becoming a four-member minority. Perhaps Justice Roberts really means what he wrote - that congressional power to tax is without constitutional limit - and his opinion is a faithful reflection of that view, without a political, legal or intracourt agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of John Marshall’s big-government aphorisms: The power to tax is the power to destroy.
The reasoning underlying the 5-4 majority opinion is the court’s unprecedented pronouncement that Congress‘ power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the Internal Revenue Service from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility - all of which the statute says it is - but rather is an inducement in the form of a tax. The majority likened this tax to the federal taxes on tobacco or gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving. The statute is more than 2,700 pages in length; it establishes the federal micromanagement of about 16 percent of the national economy, and the court justified it constitutionally by calling it a tax.
If you try to sit, I’ll tax your seat.
If you get too cold, I’ll tax the heat,
If you take a walk, I’ll tax your feet.
-The Beatles in “The Taxman”
Among the 17 lawyers who have served as chief jus- tice of the United States, John Marshall - the fourth chief justice - has come to be known as the “great” chief justice. The folks who have given him that title are the progressives who largely have written the history we have all been taught in government schools. They revere him because he is the intellectual progenitor of federal power. His opinions over a 34-year period during the nation’s infancy - expanding federal power at the expense of personal freedom and the sovereignty of the states - set a pattern for federal control of our lives and actually invited Congress to regulate areas of human behavior nowhere mentioned in the Constitution. He was Thomas Jefferson’s cousin, but they rarely spoke. No chief justice in history has so pronouncedly and creatively offered the feds power on a platter as much as he.
Now he has a rival.
No one can know the true motivations for the idiosyncratic rationale in the health care decision written by John Marshall’s current successor, Chief Justice G. John Roberts Jr. Often, five-member majorities on the court are fragile, and bizarre compromises are necessary to keep a five-member majority from becoming a four-member minority. Perhaps Justice Roberts really means what he wrote - that congressional power to tax is without constitutional limit - and his opinion is a faithful reflection of that view, without a political, legal or intracourt agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of John Marshall’s big-government aphorisms: The power to tax is the power to destroy.
The reasoning underlying the 5-4 majority opinion is the court’s unprecedented pronouncement that Congress‘ power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the Internal Revenue Service from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility - all of which the statute says it is - but rather is an inducement in the form of a tax. The majority likened this tax to the federal taxes on tobacco or gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving. The statute is more than 2,700 pages in length; it establishes the federal micromanagement of about 16 percent of the national economy, and the court justified it constitutionally by calling it a tax.
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