Health Care, Taxation, and the Constitution

I read a stunningly wrong-headed blog post yesterday by the anonymous blogger behind Poor Richard’s News. Here are the histrionics:

Justice Roberts, along with the other liberal justices, removed all limitations on what the Federal Government can coerce American citizens to do.  Here’s how the Wall Street Journal put it this morning:

The government cannot make you eat broccoli, though it may levy a non-broccoli-eating tax on any who refuse.

Imagine for a moment the implications of such a legal precedent:

•  You don’t want to drive a hybrid or electric car? That’s fine, but you have to pay non-compliance tax.
• You don’t want to send your children to public school?  No problem! Just pay the Private Education tax.  Only rich people can afford to send their children to private school anyway.  You must pay your fair share to help the poor get educated. 
• Do you want to own a gun?  Sure! Own as many guns as you like, but remember to pay the 2nd Amendment tax! The IRS thanks you for exercising your rights! 
• Want to have three children?  Go right ahead! Have lots of babies!  Please make sure you pay the Multiple Carbon Footprint tax for each additional child after the first one.
• Don’t want to buy tea? Sure, just pay the tea-tax.  Wait! That sounds familiar!

Let your imagination run wild.  The Supreme Court removed all limitations on punitive taxation.  The Federal government may now tax both activity and inactivity.  It’s okay if you don’t comply, but you will have to pay for it. 

To make matters worse, repealing Obamacare will not be enough to put the genie back in the bottle.  The legal precedent will still stand, even if the entire statute is removed from the law books by the next Congress and President.  

The only thing that can undo Justice Roberts’ abominable decision is an amendment to the Constitution prohibiting coercive taxation or a new conservative majority on the Supreme Court to overturn his precedent. 

So, pat yourself on the back Chief Justice Roberts.  You did something that President Obama could have never done himself.  King George would be proud. 

Let’s begin by noting that almost all of the horrific imaginary taxation scenarios already exist. If you want to own certain types of guns, there’s an excise tax. If you want to send your kids to private school, that’s great! But you still pay taxes that support the public schools that your children don’t attend. And — gasp! — the federal government could pretty easily slap an excise tax on tea if it was so inclined, just as it did with “whiskey, rum, tobacco, snuff, and refined sugar” back in the heady days of the 1790s (when the blogger, along with Justices Scalia and Thomas, seemingly imagine some sort of tax-free freedom and liberty paradise existed).

But I’m a glutton for punishment and so I wrote to the blogger and asked whether he opposes excise taxes in general. In other words, does he have a problem with taxes on liquor, cigarettes, gasoline, and on and on. Of course, he does. His position, so far as I can tell, is that the greatest thing about being an American is that the Constitution provides you with the freedom to have absolutely nothing whatsoever to do with any other American … so long as you can afford it. And the worst thing about America, of course, is that liberals (and traitorous activist judges) are trying to take away the freedom of decent, honest, hard-working people to entirely distance themselves from the political community.

But here’s where things really get fun. The blogger wanted to give me a civics lesson:

The trouble is that he’s wrong.

Chief Justice Roberts didn’t write “into law a new form of taxation not present in the Constitution” and he didn’t open any tax-loving liberal floodgates.

Here are the sections of the majority opinion that speak to exactly this issue:

There may, however, be a more fundamental objection to a tax on those who lack health insurance.  Even if only a tax, the payment … 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.

Three considerations allay this concern.  First, and most importantly, it is abundantly clear that the Constitution does not guarantee that individuals may avoid taxation through inactivity… .   Congress’s use of the Taxing Clause to encourage buying something is …  not new.  Tax incentives already promote, for example, purchasing homes and professional educations… .

Second, Congress’s ability to use its taxing power is not without limits… .  We have maintained … that “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”  [citation omitted] (p. 41-42)

Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal… .  By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. (p. 43)

Think back to when the blogger was aghast at the notion that there might be a tax on having children. We actually have precisely the opposite — a tax credit for having them! And that means, of course, that there’s a tax penalty for not having them. I have a child; I get a credit and thus pay less. You choose not to have a child; you don’t get a credit and thus pay more. Your inactivity results in a higher tax burden. Just like the inactivity with regard to purchasing health care.

The same is true, as Chief Justice Roberts writes, of home ownership and professional education.

So … if you’ve been super-duper sad this week about losing all of your sweet, sweet freedom or about having to participate in the life of the political community or about assisting your fellow citizens who live in poverty, my sense is that you’ll need to find a different route to criticize the majority opinion that Chief Justice Roberts authored. He’s right about the federal government’s power to tax you.