Sunday, July 8

Bullshit from courts, part gazillion. Or: the "penaltax" is unconstitutional

Some things are so rarely discussed--because they seem so obvious--that when a court eventually says "You can't do that," or "We hold that the federal government does indeed have the power to do X" (which it couldn't before that moment), almost everyone is taken by surprise. And thus no one has the arguments in hand to immediately call bullshit.

Let me be more clear: Judges populate virtually the same bell-curve as the rest of us. Which means some of them are--if not complete idiots, then at least people who often seem to be carried away by their own brilliance in seeing lines of reasoning invisible to the less-gifted.

Either way, some of the opinions judges write seem...how to put it?...ah: to totally violate the Constitution. But unless someone pops up right away and slaps the thing upside the head, within weeks the opinion takes on an aura of 'precedent' and essentially can't thereafter be undone.

(If you think this is merely hyperbole, consider that the U.S. Supreme Court has never bothered to reverse their infamous 1857 decision in the Dred Scott case, which implicitly held that slavery was legal. And no, Scott was not overturned by the Slaughterhouse Cases since the latter dealt only with persons born in the U.S, where the opinion in Scott applied also to persons of foreign birth.)

One case that shows how easily poor judicial reasoning becomes enshrined as legal precedent is Brushaber v. Union Pacific Railroad, in which the court considered the limits (if any) on the power on congress to tax citizens. That opinion says
That the authority conferred upon Congress by [section] 8 of article 1 ‘to lay and collect taxes, duties, imposts and excises’ is exhaustive and embraces every conceivable power of taxation has never been questioned....
The opinion is filled with phrases like "...the conceded complete and all-embracing taxing power...” “...the complete and perfect delegation of the power to tax”; “the complete and all-embracing authority to tax”; and “the plenary power [to tax]” (emphasis added).

While the author of the opinion may have been focused on the fact that the Constitution indeed confers a power to tax, and that this basic power has not been disputed, the fact is that the Constitution severely and explicitly restricts the types of taxes congress is permitted to levy. Specifically,
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. --(Article I Section 9)
This restriction was so unequivocal and absolute that when congress decided it wanted to tax personal income, the members knew it would take a Constitutional Amendment to make that legal. Thus the 16th amendment (July, 1909):
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
So a century ago, at least, congress knew the Constitutionally-imposed limits and was unwilling to brazenly exceed them.

It's vital to note that the Constitution explicitly approved forms of taxation other than direct "capitation," such as "Duties, Imposts and Excises," but these were taxes on goods rather than people. Thus it seems clear that the power of congress to impose taxes on people is hardly unlimited, and most assuredly does NOT "embrace every conceivable power of taxation."

So what are we to make of congress imposing the "penaltax" that is the central punitive mechanism needed to enforce the mandate that is central to Obamacare? Clearly the Supreme Court published an opinion in Brushaber claiming that the power of congress to tax was complete, all-encompassing, total, unchallenged. But just as clearly, the Constitution says the exact opposite.

Now, I'm not a lawyer and I don't read all that well, and the writing in Brushaber is, ah, ridiculously verbose and circumlocutory, but near as I can tell the crux of the case was a challenge to the authority of congress to tax income. Justice White wrote a couple of thousand words--including those quoted above saying congress had a "complete and all-embracing taxing power"--but could more easily have said "Read the frickin' 16th Amendment."

Why is this important? Because Justice White's painful novel notwithstanding, Brushaber was not about whether congress had the power to tax anything it wished, but whether it had the power to tax income. And that power had been explicitly granted by the long and difficult process of amending the Constitution--including ratification by 'the people' via their state legislatures. It's the way the founders intended such major changes would have to be made.

Now I readily acknowledge that the various states are free to tax anything and any kind of behavior (or refusal to engage in a certain behavior) that their citizens will tolerate. That is in fact the essence of the tenth amendment. But the Constitution gives congress only two kinds of taxing power: per capita, levied equally on all; and taxes on goods ("imposts, duties and excises").

The penaltax in Obamacare is none of these. It is thus unconstitutional--regardless of the words in Brushaber, not least because that case was settled by the 16th amendment.

Un-Constitutional. Tax. Period.

Postcript: Before being appointed to the Supreme Court, Justice Edward Douglass White (author of the Brushaber opinion) had previously been a U.S. senator. Thus it's not at all surprising that he would ascribe to congress powers greater than the Constitution actually granted.

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