Liberals, Conservatives! There is Something for Everyone in Roberts’ New Rule!

What’s next? Congress may order you to buy a bicycle, an electric car, or a subscription to NPR. Or a gun, an American-made car, or corporate bonds of a weapons manufacturer!

I.

“Conservative” Chief Justice Roberts has interpreted the Constitution as giving unlimited power to Congress, as long as the statute is framed as a tax. Consider what Congress can now mandate that you purchase, as long as they attach a penalty that the Supreme Court can construe as a tax (and even if Congress and the President strenuously deny it is a tax).

First, for my liberal friends, who want healthy Americans, a clean environment, and a well-informed public, here are some mandatable purchases: a bicycle. An electric car. A subscription to NPR. Corporate bonds issued by government-certified recyclers or clean-energy producers, up to 10 percent of the taxpayer’s income for levels above $100,000 per year. Compensation for carbon use above a certain minimum. Solar panels, or insulation, if one is a house-owner. This is merely suggestive, but none of these are so different from health insurance, or Social Security, for that matter, which is also built on the “taxing power” of Art I, Sect 8. In all these examples, a case can be made that the vast majority of Americans ought to purchase these things. Mandate them! Just as with health insurance, the penalty can be seen as “a tax on those without x.”

Happy, liberals? Well, don’t forget that government has a nasty habit of falling into conservative hands. Conservatives love to use the powers bequeathed them by prior administrations, just as liberals do. So expect that you may be ordered to buy: a weapon or weapons to defend your home, and an annual quota of ammunition (after all, it’s an American tradition, and target practice is needed: heck, this can fall under the militia power too). An American-made American flag, at least 8 feet by 12 feet. This will stimulate the economy. Hey, an AMERICAN-made car! (Or any American-made manufactured object we can still find.) War-bonds, up to 10 percent of the taxpayer’s income for levels above $100,000 per year. These will support the war on terror, the war on poverty, and the government’s efforts to promote a “business-friendly ownership society.” Corporate bonds issued by government-certified weapons producers and security companies! After all, it is every American’s duty to help keep our country safe! The health freeloaders who go without insurance and then get the rest of us to pay for their heart operations are the same as, or worse than, the security freeloaders who refuse to pay any extra for the war on terror, but reap the benefits of working in peace and security, right? Perhaps you get the picture, my liberal friends?

And let’s not forget the ratchet effect: government programs don’t die because the “other” party gets into power—no, the “other party” simply enacts its favorite programs, and leaves the existing ones in place.

Now our debt will really soar—oh wait, this new power can be used to order all Americans to buy U.S. government debt! It will be a “tax on non-contributors to government debt.” Now we will really “owe it to ourselves!”

II.

But, this is a legitimate way to look at the Constitution, right? After all, somewhere the Constitution gives Congress the “power to tax.”

Let’s consider that argument. Here is the Constitution, Article I, Section 8, which begins “Congress shall have power…”

At the beginning of this section are the power to tax and to “provide for the common defence and general Welfare” and at the end is the “necessary and proper” clause. But do these give Congress power to do whatever it chooses?

No one thought so for over a century. Why not? Notice the list of “enumerated powers” in the middle here. Do these have any meaning? The very existence of a reasonably long list of powers strongly implies that they, and what is clearly implied in them, are the only powers “Congress shall have,” and the general language at the beginning and end is only meant to explain the enumerated powers. (Exception: a few other minor powers here and there explicit in other articles or sections.) Otherwise, the whole of Article I would read, “Congress shall have power to enact legislation for the common defence and general Welfare of the United States.” Period. If the Founders had meant by the preamble to grant this full power, there was no need to waste ink explaining what some and only some of the individual powers under that wider power were, and, it would confusingly suggest that the enumerated powers limit Congress. Of course, they were immediately seen and interpreted by everyone to limit Congress’ power—to themselves. Otherwise they are redundant, senseless, and completely misleading.

To support this, consider the Federalist Papers, written (mostly by Hamilton and Madison) to persuade New Yorkers to ratify the Constitution (they nearly failed).

Read no. 33, where Hamilton describes how the “necessary and proper” clause refers only to the “declared” powers, such as taxation. As with “all other powers declared in the Constitution” (emphasis added), this clause simply states, according to Hamilton, the laws “necessary and proper” may be passed “for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution.” He continues, “And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.” In other words, the “necessary and proper” clause, according to Hamilton, authorizes only laws to execute “powers declared in the Constitution.”

Now find Federalist Papers no. 41 in the link above, Madison’s “General View of the Powers Conferred by The Constitution.”  Here is Madison (in paragraph 21) on that introductory clause of Article I, Section 8: “Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” That is the belief often urged today, right? Madison’s next sentence heaps scorn on the idea: “No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” He spends the next three paragraphs dismantling this notion, and urging Americans not to worry that such an obviously false interpretation will ever prevail. Remember, this is how supporters of the Constitution presented it to the public.

Another piece of evidence that these articles limit the power of Congress to what they themselves clearly state, as far as the Constitution has always been understood, is the existence of the whole “commerce clause” jurisprudence: the attempt to tie this or that law to the power to “regulate commerce…among the several States.” If the Congress could simply say that it was legislating “for the general Welfare” it would never have needed to cite the Commerce Clause. Any law that failed to be supported by the Commerce Clause could have fallen back on the general Welfare clause.

Conclusion: since before the Constitution was ratified, it was understood that the powers of Congress were limited by the Constitution. But according to the Roberts’ decision, this is not the case: Congress can lay a penalty on any action and call it a tax. (And even the New York Times admits, with understatement: “To some extent, calling it a tax does break new ground. ‘Nobody here can think of an example where you pay a tax if you do not buy something,’ said Howard Gleckman, a resident fellow at the Tax Policy Center in Washington.) There are no limits on Congressional action. If this is correct, these enumerated powers have no meaning whatsoever. Any of them could be put into practice simply by passing a law directing them to be done, imposing a penalty in the case of inaction, and calling that penalty a tax. But this belief in the unlimited power of Congress to do anything it wants has been directly contradicted by every informed judge and reader of the Constitution until the early 20th century. It therefore cannot have been part of any original meaning of the Constitution. And therefore Roberts is clearly wrong. But worse, he has pushed vast new powers onto the plate of Congress. Even Social Security, even if Congress had no warrant in the Constitution to mandate the program, really was a tax: it said, if you have income, pay up. Period. This is an open-ended new power.