web analytics
April 17, 2014 / 17 Nisan, 5774
At a Glance
InDepth
Sponsored Post
Spa 1.2 Combining Modern Living in Traditional Jerusalem

A unique and prestigious residential project in now being built in Mekor Haim Street in Jerusalem.



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

US Supreme Court

Photo Credit: Steve Petteway/Wikimedia

Share Button

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.”

Share Button

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.

Leave a comment (Select your commenting platform)

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

Loading Facebook Comments ...
Loading Disqus Comments ...
Current Top Story
The interior of the El Ghriba synagogue on the island of Djerba, Tunisia, in 2009.
Tunisian Jew Stabbed in Djerba
Latest Indepth Stories
Chief IDF Rabbi Rafi Peretz

We, soldiers of the IDF, who stand guard over the people and the land, fulfill the hopes of the millions of Jewish people across the generations who sought freedom.

Lebovic-041814

How much is the human mind able to grasp of the Divine?

Benveniste-041814

Jews have brought the baggage of the galut (exile) mentality to the modern state of Israel.

Dann-041814

The Haggadah is an instruction manual on how to survive as strangers in strange lands.

It’s finally happened. New York Times public editor Margaret Sullivan reported on her blog that “many readers…wrote to object to an [April 2] article…on the breakdown in peace talks between Israel and the Palestinians,” claiming “[they] found the headline misleading and the article itself lacking in context.” Ms. Sullivan provided one such letter, quoted the […]

Nor did it seem relevant that according to widely circulated media reports, Rev. Sharpton was caught on an FBI surveillance video discussing possible drug sales with an FBI agent.

Jewish soldiers in the Polish forces often encountered anti-Semitic prejudice.

When the state was established, gedolim went to Ben-Gurion and asked him not to draft women and, later, yeshiva bachrim.

Perhaps worse than all the above is the acute lack of unity among Jews

At our seder we emulate the way it was celebrated in Temple times, as if the Temple still stood.

Not one world leader holds Abbas accountable for his part in the breakdown of negotiations.

The 1948 re-establishment of Jewish sovereignty was a modern day Exodus and Parting of the Sea.

Spies who caused American deaths and worked for enemy states received lighter sentences than Pollard.

Christie’s “good friend” is an Imam who supports murderers of Jews and defames Israel and Christians.

More Articles from J. E. Dyer
Senator Rafael Edward "Ted" Cruz (R-TX).

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

Rouhani-stranglovebombride

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

We are in uncharted territory today. The answers for the GOP going forward may not be found in the events of the past.

Each and every permutation of artificial “fertility” will wind up in court at some point.

He gets that we can’t just sit still, paralyzed by bad press and Democratic talking points.

Obama’s supporters in the media (and no doubt in Hollywood, politics, and the academy) see a light at the end of this tunnel…

I’m skeptical that we have any intention of taking action against Syria – even punitive action, with no view to an outcome or end-state.

Liberty always – always – has to be deliberately established and hedged about with protections.

    Latest Poll

    Now that Kerry's "Peace Talks" are apparently over, are you...?







    View Results

    Loading ... Loading ...

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: