web analytics
October 23, 2014 / 29 Tishri, 5775
At a Glance
InDepth
Sponsored Post
Meir Panim with Soldiers 5774 Roundup: Year of Relief and Service for Israel’s Needy

Meir Panim implements programs that serve Israel’s neediest populations with respect and dignity. Meir Panim also coordinated care packages for families in the South during the Gaza War.



Eyes on the Ball, Folks: SCOTUS has Ruled Congress Can Make Us Buy Stuff

US Supreme Court

Photo Credit: Steve Petteway/Wikimedia

A surprising number of conservative commentators have come out cheering the ObamaCare decision because it ruled that the Commerce clause in the Constitution – Congress’s power to regulate commerce across the 50 states – doesn’t empower our legislators to force us to buy things (in this case, health insurance).

Of course, Congress can require those who propose to engage in regulated activities to purchase things, as a price of doing business.  But ObamaCare forces us to buy insurance just because we woke up one day and were citizens of the United States (and earning a certain income and not covered by insurance our employers have to buy).

The real decision

SCOTUS has said Congress can do that.  Focusing on SCOTUS’s repudiation of the Commerce clause justification is pursuing a gigantic red herring.  Who cares what the Commerce clause allows, if SCOTUS says Congress can make us buy stuff anyway?

The Commerce clause has been made irrelevant by this ruling.  Chief Justice Roberts found another way to justify Congress making us buy stuff.  No one will ever have to invoke the Commerce clause again to propose a law that makes us buy stuff.  Regardless of what stuff we have to buy today, any Congress in the future can make us buy other stuff.  All Congress has to do is impose a monetary penalty if we don’t buy the mandated stuff, and SCOTUS will call it a “tax.”

The victory for the Commerce clause is the Pyrrhic one here.  Another such victory, and we are lost.

Tax versus mandate

A purchase mandate and a tax are two different things.  It seems silly to have to lay this out, but apparently there are a lot of people who are confused.  What distinguishes a tax from all other requirements is that its first-order effect is producing revenue for the government – not because the citizens engage in any particular activity, but because the government needs revenue, and chooses one or another basis for levying a tax to produce it.  To gain tax revenue, the government surveys what the citizens do and chooses to tax some of it.  A tax is not something that arises from government-mandated activity, nor is it levied because of what people choose to do.  You may choose to buy milk and have to pay a sales tax on it (in some states), but the tax isn’t imposed because you buy milk, it’s imposed because the state or local government needs revenue.

There are other ways – non-tax ways – in which we send money to the government for various things.  We pay fees, for example, to operate businesses or get driver’s licenses.  We pay speeding fines.  We buy hunting licenses.  We pay fees to register private vehicles and boats.  We get fined for particular transgressions, such as littering or polluting.  All of these ways of handing money over to the government are contingent on us choosing to do something.  If we don’t choose to do it, we don’t fork over money to the government.

Taxes are a different matter.  Their existence doesn’t depend on us wanting to “do” things, or doing wrong things, for which a fine is imposed; they exist because government needs revenue.  Taxing income, sales, cigarettes, liquor, gasoline, property, etc is intended to produce revenue, on a regular and somewhat predictable basis.

The purpose of the ObamaCare insurance-purchase mandate is not to produce revenue for the government.  It is not a tax, by any valid definition of “tax.”  It doesn’t tax sales.  It doesn’t tax goods.  It doesn’t tax income.  It doesn’t tax property.  It doesn’t tax activity (e.g., federal taxes on commercial airline flights or landline services).  It mandates that certain citizens buy something from commercial vendors, and it fines them if they don’t.  In that way, its closest analogue is the requirement of the various states that drivers maintain auto insurance.  That’s not a tax, and has never been held to be one.  And even that analogue is imperfect, since no one who doesn’t own a vehicle has to maintain the insurance.

I really wish Republicans would stop cynically chanting that Obama has broken his pledge on taxes with the ObamaCare legislation.  (And for the Republicans doing it foolishly, because they don’t understand or care that there is a significant difference in law and our philosophy of government between a tax and a purchase mandate:  you guys stop it too.)  This battle can’t be won if we concede that any old way of being ordered to send money somewhere at the government’s direction equals a “tax.”

About the Author: J.E. Dyer is a retired US Naval intelligence officer who served around the world, afloat and ashore, from 1983 to 2004.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

One Response to “Eyes on the Ball, Folks: SCOTUS has Ruled Congress Can Make Us Buy Stuff”

  1. all of that magnificent language purportedly “erecting a wall” around the Commerce Clause is mere dicta – the equivalent of the “all the reasons I love you” before the “but” in the “Dear John” letter. Not a word of it has the slightest bit of precedential value. I would call it a sop to the Constitutionalists, but it hardly qualifies for even that

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Prime Minister Binyamin Netanyahu, Jerusalem Mayor Nir Barkat meet with security officials over Oct. 22 terror attack.
Netanyahu Convenes Top Brass in Jerusalem Over Terror Attack
Latest Indepth Stories
Bills to restore the balance of power in Israel will be fought by the not-so-judicial left.

Widespread agreement in Israel opposing Palestinian diplomatic warfare, commonly called “lawfare.”

Chaye Zisel Braun

Arab terrorism against Jews and the State of Israel is not something we should be “calm” about.

Peace Now Chairman Yariv Oppenheimer

The Israeli left, led by tenured academics, endorses pretty much anything harmful to its own country

Grave site of terror victim Leon Klinghoffer.

We were devastated: The exploitation of our father’s murder as a vehicle for political commentary.

Judea and Samaria (Yesha) have been governed by the IDF and not officially under Israeli sovereignty

While not all criticism of Israel stemmed from anti-Semitism, Podhoretz contends the level of animosity towards Israel rises exponentially the farther left one moved along the spectrum.

n past decades, Oman has struck a diplomatic balance between Saudi Arabia, the West, and Iran.

The Torah scroll which my family donated will ride aboard the USS Gerald R. Ford aircraft carrier

The Jewish Press endorses the reelection of Gov. Andrew Cuomo. His record as governor these past four years offers eloquent testimony to the experience and vision he has to lead the Empire State for the next four years.

I think Seth Lipsky is amazing, but it just drives home the point that newspapers have a lot of moving parts.

Myth #1: It is easy to be a B’nai Noach. It is extraordinarily hard to be a B’nai Noach.

The question of anti-Semitism in Europe today is truly tied to the issue of immigration.

Polls indicate that the Palestinians are much more against a two state solution than the Israelis.

Turkey and Iran the 2 regional powers surrounding the ISIS conflict gain from a partial ISIS victory

More Articles from J. E. Dyer
syria_stratfo

It’s likely that some of the rebel factions, including US clients, have indeed made pacts with ISIS

After the 2003 invasion: digging out a MiG-25 buried in Iraq before Desert Storm. Saddam’s jet inventory suffered various similar fates.

Another nation – probably Iran, possibly Russia and/or Syria – is entering the fight in Iraq in a new and fully committed way.

There is now NO possible explanation for not evacuating at least non-essential personnel from the U.S. embassy and consulates in Iraq.

ISIS is executing, slowly but surely, a pincer move on Baghdad.

The ISIS guerrillas are a problem for Iran. It arose because of the Arab Spring and the Syrian civil war.

To investigate Holocaust denial is to enter into a sick world of darkness and brooding fury.

It would be so catastrophic to not increase the debt ceiling that Senators must have the option of avoiding the people’s scrutiny.

Iran could produce enough high-enriched uranium (HEU) for a first nuclear warhead in as little as two weeks.

Printed from: http://www.jewishpress.com/indepth/analysis/j-e-dyer/eyes-on-the-ball-folks-scotus-has-ruled-congress-can-make-us-buy-stuff/2012/07/01/

Scan this QR code to visit this page online: