Supreme Court: Congress Can Tax For Any Reason

The focus on the Supreme Court’s Obamacare decision today seems to center around Chief Justice Roberts’ decision to rewrite Obamacare’s individual mandate as a “tax” rather than a mandate. This, of course, is egregious – the Supreme Court does not have the power to rewrite statutes, merely to interpret them.

But this misses the larger issue: under the Roberts decision, Congress can levy a tax for virtually any reason. As Chief Justice Roberts himself acknowledges in the opinion:

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

Roberts rejects that argument. He argues that:

(1)  “the Constitution does not guarantee that individuals may avoid taxation through inactivity” (as support for this proposition, he idiotically quotes Benjamin Franklin’s famous injunction that nothing is certain but death and taxes, which is apropos of nothing);

(2)  “Congress’s ability to use its taxing power to influence conduct is not without limits” (although he declines to name those limits).

In short, Congress can tax you if you do nothing; Congress can tax you to influence your conduct; Congress can tax you and tax you and tax you. What kind of tax isn’t allowed under the Constitution? Roberts has to reach all the way back to a 1936 case, United States v. Butler, in which a tax on processors of farm products, proceeds to be paid to farmers. The Court in that case stated that the Act was “a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end.”

So, when was the federal government delegated the power to control individual health care, exactly?

It wasn’t. But that no longer matters. From now on, any tax that can be justified on any public policy basis is a good tax. And, for that matter, any mandate is a good tax, too.