Last Updated:October 24 @ 07:27 am

Napolitano: A Vast New Federal Power

By Andrew P. Napolitano

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"

Of the 17 lawyers who have served as chief justice 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 have largely written the history we are taught in government schools. They revere him because he is the intellectual progenitor of federal power.

Marshall's 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 he.

Now he has a rival.

No one can know the true motivations for the idiosyncratic rationale in the health care decision written by Marshall's current successor, John Roberts. Often five member majorities on the court are fragile, and bizarre compromises are necessary in order to keep a five-member majority from becoming a four-member minority. Perhaps Chief Justice Roberts 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 or legal or intra-court agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of 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 IRS 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 and gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving.

The statute is more than 2,400 pages in length, and 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 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 is apparently 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 never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.

I wonder whether the chief justice realizes what he and the progressive wing of the court have done 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.

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Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."

COPYRIGHT 2012 ANDREW P. NAPOLITANO

DISTRIBUTED BY CREATORS.COM

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19 Comments

  1. inluminatuoComment by inluminatuo
    July 3, 2012 @ 8:27 am

    The power to tax IS the power to destroy, and governments were not designed to destroy the people but to build them up. You do not build people up by making them dependent, you encourage laws that (en)COURAGE) (Note the word Courage) them to become independent and self sustaining. The object of government is not to ADD, but subtract from the burdens placed upon the backs of its people, to encourage the creation of national wealth, not do violence to it in oppressive taxes which destroy wealth and encourage unlimited consumption.

    Our Constitution was designed to do just that, to reign in government power and place that power in the arena of personal responsibility. SO why again do we get more decisions from our court leaders which does the complete opposite,,,less power to the people, less personal property to the people, less ability to the people to run their own lives. More government dishonestly in the redistribution of the honest earned wealth to empower those too dishonest to go out and earn their own way in the world.

    This is a government no longer of laws, not even of men, but a government of children who can only play at acting responsible, starting with the leader of our highest court who can only enable the weak at the expense of the strong, who soon will be too weak to protect and defend even the innocent.

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    • ggarrett34Comment by ggarrett34
      October 8, 2012 @ 6:57 pm

      We used to be a Nation of laws,now we are a nation of lawyers.
      Unless We rid our country of lawyers We will perish!

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  2. cxComment by genesal
    July 3, 2012 @ 8:33 am

    Thanks for a concise explanation of the damage this man has done, Judge Napolitano. Could be the ‘straw that broke the camels back’ and it might have happened trying to fit the camel through the eye of the needle. Roberts will go down in infamy. Any ‘silver lining’ is miniscule in comparison to the ‘biggest tax loophole’ in the U.S. history.

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    • inluminatuoComment by inluminatuo
      July 3, 2012 @ 9:45 am

      Now instead of the “Commerce Clause” or the “Tax Clause” we get more of the government judicial “Santa Clause” for people too inept to take care of themselves in liberty. What has this country become?

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    • cxComment by genesal
      July 3, 2012 @ 10:55 am

      I just hope that everybody realizes that the November election is now a ‘Hail Mary Pass’.

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    • inluminatuoComment by inluminatuo
      July 3, 2012 @ 2:35 pm

      That is only if they allow Mary or Jesus even into the stadium.

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  3. middlegroundComment by middleground
    July 3, 2012 @ 10:18 am

    When Robert Bork was rejected it signaled a huge shift toward appointing “party faithful” to the court and a shift away from looking for the best qualified.

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  4. awrighterComment by awrighter
    July 3, 2012 @ 10:39 am

    While I agree with Judge Napolitano’s judicial appraisal of the SCOTUS ruling, I must, with all due respect, point out that he falls into the same cunning linguistic trap other constitutional conservatives (Bill O’Reilly, for example) fall prey to — calling (leftist social engineering) liberals “progressives”. The term progressive is one that (leftist social engineering) liberals prefer, of course, since it lulls others into believing that they are, in fact, “progressive”, while, in fact, they are anything BUT. Progressive towards what, one may fairly ask? A socialist cradle-to-grave wealth redistributing Big Brother nanny state? That’s hardly progress. It wasn’t progressive in 1917; it’s not progressive now (How about regressive?), and those who seek to force such an odious agenda down the throats of the American people shouldn’t be favored by being soothingly called “progressive”. A (leftist social engineering) liberal by any other name is still just that — a liberal.

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  5. Cape ConservativeComment by Cape Conservative
    July 3, 2012 @ 10:41 am

    Several of those sitting on the SUPREME COURT of the UNITED STATES OF AMERICA are NOT qualified to do so! What background (besides being a ‘wise Latina’) does Sotomayor have that would put her in a position of determining the CONSTITUTIONALITY of anything? Ditto Ms. Kagan. Indeed ‘best qualified’ has given way to ‘party faithful’ – and AMERICA, and its 300,000,000+ citizens, are the losers!

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    • NY GrahamComment by NY Graham
      July 3, 2012 @ 11:59 am

      Agreed. It should be a scandal that four members of the court had no intention of even considering whether this law was Constitutional. They would have upheld the law no matter what arguments were presented. If necessary, they would have twisted logic and reason to distort the language of the Constitution to make it fit.
      The decision will focus on Roberts redefining the taxing power of Congress (and rewriting the bill). But what about the four who would have claimed that Government forcing citizens to buy a product is covered under the Federal governments obligation to regulate commerce among the states?

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  6. NY GrahamComment by NY Graham
    July 3, 2012 @ 11:47 am

    Social Security was marketed to the people as a Government run pension fund. The only problem was that it was compulsory. Clearly forcing people to pay into a pension fund was unconstitutional, so when the case went to the Supreme Court the FDR administration argued (successfully) that it was a tax, permitted under the 16th amendment. My, how history repeats itself.

    In the case of Social Security the tax argument is logical, since it IS a tax on income paid by everyone. The FDR administration just had to argue that the revenue was not earmarked for any particular purpose (no lock-box?) and voila, the law stands.

    At the time income taxes were nowhere near as large as they are today. So, you would think that FDR introducing a significant new tax on every citizen during the Depression would have caused public outrage. But what happened? Was the law repealed? Did FDR fail to win re-election?

    Fast-forward to today. Obama and his allies have unleashed a new tax on the American people in the midst of the second Depression. What will be the result? Will the law be repealed? Will Obama fail to win re-election?

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  7. JDZComment by JDZ
    July 3, 2012 @ 11:54 am

    My guess is that most Americans actually do not realize what Justice Roberts just did to us. Now, even if Obamacare is repealed later, the decision that the government can tax us for ANYTHING regardless of whether we buy something or not, is an outrageous expansion of the power of the federal government, and which I suppose the States and other government levels could now also do if they want. It is insane and a total undermining of the freedom of choice of every American in this country. To me this is treasonous.

    Every since this ruling came down, the Obama administration has been drinking champagne and celebrating because Roberts just helped them put the final nails in the coffin of the American Dream. This is BAD news, much more then just Obamacare. This is going to facilitate a “government gone wild” that we have never seen in the history of our country.

    The only option on the table to save our country is to throw these radicals out before they can finish the job.

    Are you getting this out there?

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    • cxComment by genesal
      July 3, 2012 @ 12:04 pm

      I’m not sure Obama will need another term to finish the ‘change’ he had in mind at the rate he is going. I smell collusion between all three branches of government, and it truly surely stinks.

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  8. vthommassonComment by vthommasson
    July 3, 2012 @ 12:33 pm

    “The majority likened this tax to the federal taxes on tobacco and gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving.”

    So, if I am not buying tobacco or gasoline, I am not paying taxes on those items. And, if I don’t buy healthcare insurance, why or how am I taxed on that item?

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    • JDZComment by JDZ
      July 3, 2012 @ 7:13 pm

      This “tax” is not like the tax on goods or products that you buy which are federal sales taxes. This healthcare “tax” is more like a “fine” then a tax in that you will be fined through the federal tax structure (IRS) for NOT BUYING healthcare insurance. The interpretation of whether this is a fine or penalty under the commerce laws is what was challenged as unconstitutional, and when that was seen as going to be found unconstitutional by the Court, the Obama lawyers then wanted to call it a “tax” which Congress has the power to do under the Constitution. And, at the last moment, Justice Roberts decided to call it a tax rather then a fine, and that made the legislation constitutional, thus basically, giving the government the power to TAX us on anything if we do not do what they want us to do. They could say, we will stop eating red meat, and if you do not stop buying and eating red meat, they can tax you for not following their directive. This was a really a BAD move by our Chief Justice who was the deciding vote.

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    • cxComment by genesal
      July 4, 2012 @ 10:23 am

      They will, forever in the future, write Bills to be construed two different ways. One, the real purpose of the Bill and two, as a tax to which they can fall back on and pass Constitutional muster, due to the precedent laid down by the SC, I mean Roberts.

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  9. Spiritof76Comment by Spiritof76
    July 3, 2012 @ 6:52 pm

    Judge, there is no Constitution any more. Why do we engage in most torturous analysis of how far off it is from the Constitution? Why can’t we say that the US is a nation ruled by men and not by laws? I find the so-called conservatives try to avoid calling a spade a spade. Until we all who believe in our Founding principles call it for what it is, we can not regain what we have lost. Half the people in this country are socialists, communists, fascists or some combination of the three. The US Constitution was written for people with virtue. I wish it had severe punishment for breaking the oath of office as Patrick Henry advocated for during the ratification process of our proposed Constitution in Virginia. In the old days, these people would have been tarred and feathered because they understood that it is not tolerance to accept evil ideas as having equal merit. I am disgusted that we continue to call this land, “the land of the free and home of the brave” when it is no longer either.

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    • TeavangelicalComment by Teavangelical
      July 4, 2012 @ 10:11 am

      This is the defacto truth. But, in our machinations to restore it (I am not giving up), we should keep it in the forefront of our discussions. We can still educate those who will listen about the Truth. Of course, as you rightly say, the Constitution was written for people with virtue (“…for a moral and religious people”), so the key to restoring our Republic is to restore our virtue. I pray for another great awakening.

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  10. TeavangelicalComment by Teavangelical
    July 4, 2012 @ 10:16 am

    Judge–a concise and well-written explanation. I liken the gravity of Roberts’ decision to a similarly devastating decision made by one Benedict Arnold. See my commentary here: http://www.waltoncountyteapartypatriots.org.

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  11. Pingback: Johnny Cirucci’s Information Preparation of the Battlefield (“IPB”): Freedom News for Wednesday, 04 July 2012 | Johnny Cirucci.com

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