Obamacare’s SCOTUS Aftermath: We Need to Limit the Tax Power
Posted on 28 June 2012
I am glad I didn’t get my hopes up about SCOTUS in re: Obamacare. I was disappointed to hear the entire PPACA was upheld, to be sure, but I wasn’t spiking the football after the public hearings, so I don’t have to walk back any pre-decision irrational exuberance.
The kicker in the Roberts decision is that the Commerce Clause can’t justify the individual mandate, but the same effective result is possible under the federal government’s tax powers.
The Court’s decision, as I understand it (I haven’t read the texts yet so I’m relying on third-party synopses), seems reasonable on its face.
The problem for small-government types seems to be in the Court’s clear holding that there are few practical limits on the taxing power. As long as something can be taxed, it’s open to control even absent any other enumerated power of the federal government to justify non-tax regulations.
Thus: The Congress can’t force you to buy broccoli, but it can fine you if you don’t. From a legal perspective, this is coherent. From a public policy perspective, it’s an absolute mess of the “po-tay-to, po-tah-to” variety.
To fix the problem before it gets worse, conservatives ought to unite around an amendment to the Constitution that sets explicit limits on the scope, nature and purpose of taxation.
Not being a Constitutional scholar, I’m not the guy to draft such a proposal. But I could see something like this:
The Congress shall pass no law affecting public revenues that regulates the behavior of citizens unless such tax, tariff or credit supports a regulatory activity permissible under the non-tax enumerated powers of the federal government.
Yes, we need to repeal and replace. We also need to heed the Roberts Court and put clear constitutional limitations on the federal government’s use of its tax power as the next iteration of an elastic Commerce Clause.
Only by curtailing the scope of the government’s taxing authority can we avoid future debacles like Obamacare.