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 John G. 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 the Chief 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 to 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.
A 7 to 2 majority (which excluded two of the progressive justices who joined the chief justice in rewriting tax law and included the four dissenting justices who would have invalidated the entire statute as beyond the constitutional power of Congress) held that while Congress can regulate commerce, it cannot compel one to engage in commerce. The same majority ruled that Congress cannot force the states to expand Medicaid by establishing state insurance exchanges. It held that the congressional command to establish the exchanges combined with the congressional threat to withhold all Medicaid funds - not just those involved with the exchanges - for failure to establish them would be so harmful to the financial stability of state governments as to be tantamount to an assault on state sovereignty. This leaves the exchanges in limbo, and it is the first judicial recognition that state sovereignty apparently is at the tender mercies of the financial largesse of Congress.
The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law’s most fervent supporters did not make or anticipate the court’s argument in its support. Under the Constitution, a tax must originate in the House, which this law did not, and it must be applied for doing something, like earning income or purchasing tobacco or fuel, not for doing nothing. In all the history of the court, it has never held that a penalty imposed for violating a federal law was really a tax. And it has never linguistically converted the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.
I wonder if the chief justice realized what he and the progressive wing of the court were doing to our freedom. If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.
Even the Beatles understood this.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. He is the author of “It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom” (Thomas Nelson, 2011).