Chief Justice Roberts gets tax decision WRONG, provides Congress with unlimited power

by Doug Book,  staff writer

 John Roberts is said to be quite concerned about the way in which history will view his tour of duty as Chief Justice of the Supreme Court. Well he doesn’t have to worry any longer, for his remarkable decision allowing Congress to impose a tax improperly and in a previously unconstitutional manner will secure his place in Court history for all time.

Very few—including Obama himself—believed the scheme of presenting the individual mandate penalty as a tax would pass constitutional muster. The DOJ included a “the penalty is actually a tax” argument in an ObamaCare brief to the Supreme Court, to be sure.  But that was a typical lawyers’ game of “throw everything against the wall and see if it will stick.” It was upon the Commerce Clause powers of congress—and to a lesser extent, the Necessary and Proper clause– that the DOJ and Solicitor General Donald Verrilli depended to convince the Court that the mandate was constitutional.

In fact, Obama himself told the American public that the penalty was NOT a tax, as did White House budget director Jeff Zients. (1)

“So if I am part of a family that does not buy health insurance in violation of the president’s health-care program and I have to pay [a fine] because of that, that is not a tax increase – that is not a tax on me?” asked Congressman Scott Garrett of Zeints. “The Affordable Care Act saves money,” Zeints evaded. But Garrett reminded the budget director that a moment earlier in his testimony, Zeints claimed there would BE no tax increase. “So [the mandate penalty], that’s not a tax,” pressed Garrett?  “No,” Zeints responded.  (2)

Indeed nowhere in the massive text of the Affordable Care Act is the individual mandate referred to as a tax. Although ordered to be collected by the IRS, the mandate is deliberately and diligently referred to as a “penalty” throughout. The reason?  “To be a constitutional tax, it must be an excise tax, an income tax, or a proportional capitation tax.” (3) These are the ONLY types of tax which the United State Congress has a recognized, constitutional power to impose. Cato Institute policy analyst and law professor Dave Kopel explains:

“The 16th Amendment grants Congress the power to “collect taxes on incomes, from whatever source derived.” The Supreme Court has defined “derived” income to mean “undeniable accessions to wealth.” Here, the mere refusal to purchase a product is not any kind of “income” or accession of wealth.

Likewise, the penalty cannot be an excise tax. An excise tax is imposed on an event or item, such as the acquisition of a machine gun. Again, there is no event to be taxed, and never in American history has a federal excise tax been imposed on an American’s inactivity.

Thus, the tax is constitutionally a “direct tax” – similar to a head tax, or a tax on real estate. The Constitution requires that such taxes be imposed “in Proportion to the Census.” The mandate penalty is not so apportioned. (1)

Kopel’s conclusion is startling:

“The Obama tax theory, in effect, would give Congress the power to make laws on any subject, impose a fine for noncompliance, have the IRS collect the fine, and then claim that the entire regulatory structure is part of the tax power. The result would nullify Article I of the Constitution, which carefully grants Congress 18 specific powers – and does not grant a general power to legislate on everything.”

 With his ruling, Chief Justice John Roberts gives the impression of a judge desperately searching for a way to find a buddy’s illegal argument, legal. As experts in the field of constitutional law comment on his decision, they must conclude that the Justice eliminated what little remained of the liberty we the people were asked by the Founders to safeguard for ourselves and future generations. What a disgrace. What a tragedy.

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To read more use these links:

(1) http://www.ocregister.com/articles/tax-290834-congress-penalty.html

(2)  http://www.forbes.com/sites/richardgrant/2012/02/19/is-a-thumb-a-finger-is-an-individual-mandate-a-tax/

(3) http://www.keytlaw.com/blog/2010/07/law-professor-says-obamacare-tax-penalty-is-unconstitutional/

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11 thoughts on “Chief Justice Roberts gets tax decision WRONG, provides Congress with unlimited power”

  1. Yesterday I posted: "Our National Moral Compass has completely flipped. Justice John Roberts saves the monstrous Obamacare to assure the collapse of the Republic. Roberts joins the other “Catholics” like Pelosi and Sebelius who threw their Country, their Church and the Constitution in the trash. As a Catholic, I am ashamed."
    Today Doug notes that Roberts has given Congress unlimited power through taxation. My son, who is a "SCOTUS-file" explained the layering of internal decisions that led to the ruling. He said, "Roberts teed up the ball for Romney and gave him a Big Bertha to drive it to the 19th hole." Swinging power back to Congress, away from a dictatorial WH full of communists, terrorists, Muslim Brotherhood and eugenicists seems a good thing at this time when the Republicans are poised to take the WH, Senate and are assured continued control of the House.
    Tea Partiers who have seemed to disappear are rejuvenated. I don't think the Republicans will exploit their patriotism and love of country that can even pull in the Hispanic vote. Stranger things have happened. We've got a lemon – now let's make lemonade and sell it on every street corner in the USA, without a permit from some addled bureaucrat.

    1. toddyo,

      Funny thing is the lengths to which Roberts went to put the ObamaCare statute in good enough shape to meet his own criteria of constitutionality! Roberts literally re-wrote Congress' law for them!

      I believe you're right–this ruling will create a Republican "battle cry" for November. I hope the Party takes advantage of it.

      1. Old puppy……I am very interested in learning more about how Governor Scott of Florida (interviewed on Fox News Friday June 29th)…despite the Supreme Court's shabby ruling on ObamaCare…..is STILL proceding with every intention and action to vehemently disallow ANY form of this invasive healthcare bill from being implemented within Florida's borders…
        I'm assuming he is using the process of "nullification'….if so, I would urge and advise all conservative readers of this website to e-mail their Governor's Office and ask that he/she joins Florida, and other States in opposing this legislation, and preventing it from becoming entrenched by the mistaken notion that ObamaCare is a "done deal".
        Both the States and voters can derail ObamaCare.
        The senate only needs a gain of about 4 or 5 truly conservative seats to vote to repeal ObamaCare in the Senate…..
        Does anyone realize how very "doable" this is ???
        Google : Florida Governor Scott's interview with Fox News to deny ObamaCare
        UNTIL the States and voters tip the scales against implementation of any and ALL parts of ObamaCare….welcome to the USSA.

        1. Hi Joanne,

          There is a theory going around that Roberts decision to make this a tax issue was to permit Republicans a somewhat easier path to repeal! If a tax question, it will only require 51 votes in the senate to repeal the law. I know the vote part is right, but whether this is what Roberts had in mind–you'll have to ask him!
          If Republicans run an aggressive, fearless campaign, they'll win the senate. If they run a Boehner/McCain love-in, they might not. The link to the senate vote info is below.
          I'll have a piece up on CiR Monday asking WHY Roberts did what he did. You might take a look at it. I sure don't know the answer, but the fact Roberts "done wrong" is just that–a fact! Byt eh way, if you haven't already, you might want to go to the Supreme Court home site. The entire ruling is there, of course. It's a very interesting read, especially the dissent of Scalia et al!

          Doug
          http://dailycaller.com/2012/06/29/democrats-and-d

    2. Toddyo: Even if what your son claims, is true….In my opinion, Justice Roberts was still taking an enormous, and an unacceptable, risk with the freedoms of Americans and private enterprise !!
      What if…. by some treachery…"Mittens" does NOT get elected in November ?
      We will be faced with a terrible destiny.
      Since his was the tie vote, wouldn't it have been far safer for all of us if Roberts had simply declared ObamaCare unconstitutional without raising the issue of "tax"-vs-penalty ?
      Even Obama didn't believe the "tax" issue would ever survive the 'Supremes', that's why he sold it as a penalty….and to hear the Demos talking…post decision…they are STILL referring to "it" as a penalty…no one will mention the "T"-word.
      I simply fail to see the wisdom of Roberts' ruling.
      It would be very revealing to learn, possibly from your son, Toddyo, what sort…if any…"inner-chambers", political and peer pressure went into this decision… I think other issues were afoot as well…which may involve the "turning" of a once fairly conservative judge into a flaming liberal.
      I disagree that the TEA Partiers 'disappeared'…..all along, they were all waiting on the sidelines for this game to play out….
      If they are now re-energized by this ruling, so much the better….
      The synchronous events of federal over-reach….. from the Oval Office's strenuous promotion of this misguided bit of grand larceny…to Congress' passing of this onerous bill…. to the Supreme Court's sanction of it….is just too much coincidence for me.
      For Americans to be so thoroughly screwed by all the branches of federalism just sucks!!
      It doesn't make a damn bit of difference what fancy kind of suit, frock, or robe it comes dressed in….tyranny is still tyranny

      1. Thanks Joanne – Brian didn't get into the Constitutionality of Roberts ruling. We both stand with Justice Kennedy on that one. The Republicans have to take the whole thing in November against the biggest bunch of cheaters and gangsters we've ever seen.

        My position is that any bill over 100 pages long HAS to be filled with poison pills and select privilege which to me violate both subsidiarity and the Constitution.

        Do I think the Republicans have the strategy and guts to pull it off? I mostly doubt it – dumb luck and the Tea Party will save their (and our) sorry butts! I didn't mean the TP was dead – just a period of creating greater depth. I have little stomach for mass demonstrations. unless its a bunch of feces-smearing OWS'ers who get lots of press. Even Beck's 8/28 million i DC didn't change any minds as wonderful as it was.

  2. Roberts not only destroyed the reason that ObamaCare was unconstitutional, he also destroyed SB1070, Arizona's law against illegal immigration. It was George Bush who appointed this 'conservative' to the Supreme Court. G. Bush also called our Constitution 'just a God dam* piece of paper' and his father in a speech he gave several years ago called for a one-world government. Think there could be any funny connections here?

  3. May I respectfully suggest that you are making the same mistake Mark Levin made in his comments yesterday?

    Both of you are suggesting that the Constitution authorizes three classes of taxes – a direct tax ("capitation") which must be apportioned in accordance with Article I Section 9; an indirect tax ("duties, imposts, and excises") which must be uniform in accordance with Article I Section 8; and an "income tax" in accordance with the Sixteenth Amendment. This assertion is simply not true.

    The Brushaber decision by the Supreme Court [Brushaber v. Union Pacific RR. Co. - 240 U.S. 1 (1916)] made it absolutely clear that the Sixteenth Amendment authorized no new power of taxation which did not exist prior to that amendment:

    "…the Amendment contains nothing repudiating or challenging the ruling in the Pollock Case (an 1895 Supreme Court decision, Pollock v. Farmer's Loan and Trust Co., ruling that the income tax is unconstitutional)… the purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended… (the purpose was not) to take an income tax out of the class of excises, duties, and imposts, and place it in the class of direct taxes."
    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?…

    Thus the Supreme Court in Brushaber is saying that the income tax can only conform with the limitations of the Constitution as an indirect tax, which is a class of taxes falling on voluntary activities, and requiring uniformity.

    The Supreme Court affirms this understanding in a subsequent case [STANTON v. BALTIC MINING CO, 240 U.S. 103 (1916)]:

    "…by the previous ruling (Brushaber) it was settled that the provisions of the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed in the category of direct taxation subject to apportionment…"

    The Supreme Court could not have made the effect of the Sixteenth Amendment more clear (even if it was legally ratified, which it was not). Yet those in government with an interest in imposing an imcome tax have buried the Brushaber decision, and have convinced that American people that there is a law requiring Americans to file income tax returns and pay taxes on private earnings.

    The fact is that no such law exists, and there is no separate class of taxes under the Constitution labeled "income tax". Any purported tax on income, or any other federal tax, must survive under one of the constitutionally-qualified tax provisions as either a direct tax which is subject to apportionment, or as an indirect tax which is subject to the requirement of uniformity.

    The income tax is neither (although it is unconstitutionally enforced by the IRS as an unapportioned direct tax), and this new Obamacare "tax" is likewise nether.

    In Mark Levin's comments on the Obamacare decision, the following statements are made:

    “What kind of taxes are permitted under our federal constitution? Well, there’s a tax that is called a direct tax or capitation tax…it is a tax on the individual. The Constitution requires direct or capitation taxes (a head tax if you will) to be apportioned among the states…

    Then under the Constitution you can have an excise tax. But excise taxes require some sort of action or activity on the part of the individual. So surely this tax can’t be (an excise tax).

    What about an income tax under the Sixteenth Amendment?

    Even John Roberts doesn’t attempt to justify the (Obamacare) penalty as an income tax.”
    http://marklevinshow.com/Article.asp?id=2484259&a

    It is long past time for the federal income tax be exposed for the fraud that it is.

    Is it too much to expect from our conservative commentators that they be constitutionally accurate when discussing taxes?

    Perhaps you and Mark Levin should get hold of Peter Hendrickson’s expose of the income tax hoax titled “Cracking the Code”.

    What you will find in that little masterpiece will shock you, and make you so angry that what has been done by Chief Justice Roberts will seem trivial by comparison.

    1. Yet for all the work Roberts does in turning what Congress clearly defined as a penalty into a tax, he makes no attempt to say what sort of tax it is. First of all, Roberts acted as a disgracefully obvious judicial activist, re-writing the mandate so as to make it into something which he considered worthy of constitutional acceptance. And Scalia rightly called him on it in the dissent. Judicial activism usually takes the form of imputing meaning or intent. But Roberts took it all the way to re-writing the language of the mandate! One would think such an industrious judge would finish his work by giving definition to the finished product! After all, with the amount of work he did to help congress get its law past the court, he could certainly have no difficulty assigning a constitutionally acceptable NAME to his new tax. he invented.

      I'm not able to get the Levin show here in small town Ky. In fact we just started getting "talkies" in the theatre a few years back! The tax info I wrote of came from other sources. But if Levin believes as I do, I'm sure in good company.

      Thanks very much for reading Coach is Right

      Doug

  4. Thank Chief Justice Robert, for putting that BIG "BULL-EYE" on hussein back! (payback is hell). The high court just give the GOP a new weapon on TAXES and that will devastating the economy. Now the Republicans need to use the Supreme Court decision to there advantage in the November election. Even hussein wanted it struck down, so he could say we will rewrite it only better this time. But now he doesn`t have one damn thing to run on! HA-HA

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