In a surprising twist to the much anticipated healthcare decision, Chief Justice John Roberts may have gifted Congress with more authority than proponents of a broad reading of the Commerce Clause could have possibly dreamed. This result was achieved through a newly discovered power contained within Taxing and Spending Clause of the United States Constitution, found in Art. I, Section 8, Clause 1. The Framers apparent intention, at least in the eyes of the Chief Justice, was for Congress to possess the ability to regulate inactivity by enacting a tax to foster compliance with legislative whims. This unprecedented reading of Congress’s ability to tax for the ‘general welfare’ of society may have just shifted the balance of legislative authority solidly away from restraint to the side of absolute control.
Chief Justice Roberts justified the use of taxes to affect private individuals’ conduct by citing formerly enforced tariffs that “[S]ought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.” Yet these examples did not facilitate Congress’s desired action through the exaction of money from those who have failed to act, such as the shared responsibility payment does (the payment by those who do not comply with the individual mandate), but rather required a payment that is attributable to a private citizen’s volitional action. By providing that Congress has a newly found, nearly unlimited power to encourage conduct of virtually any variety through its general taxing power, the Chief Justice has resigned most legislative limitations and written a blank-check of authority. This goes well beyond the Framers’ intentions to only vest Congress with a specifically enumerated dominion, as declared by the Tenth Amendment to the United States Constitution; thereby circumventing many checks-and-balances put in place to prevent precisely this type of power concentration in one branch of government.
The Court did acknowledge one continuing limitation for drafters of tax legislation, which is that any ‘direct’ taxes must be levied proportionately among the states in order to account for representative authority. The majority of the justices, however, deemed this particular tax as not falling within the historic examples of direct taxes, such as: property taxes and capitations (or head/poll taxes). This explanation has left a bevy scholars unsatisfied. They argue that excluding the shared responsibility payment from the category solely because of its novelty is inappropriate. In fact, the same argument can be made for why this payment does not belong in a broader category of taxes to begin with. Assuming it is a tax, there are clearly qualities of this payment that make it closer in resemblance to a direct tax, but the majority was not persuaded.
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