Limitations on the Power of Taxation

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Limitations on The Power of Taxation
The power of taxation, is however, subject to constitutional and inherent limitations.

Constitutional limitations are those provided for in the constitution or implied from
its provisions, while inherent limitations are restrictions to the power to tax attached
to its nature.

The following are the inherent limitations.
Purpose. Taxes may be levied only for public purpose;
Territoriality. The State may tax persons and properties under its jurisdiction;
International Comity. the property of a foreign State may not be taxed by another.
Exemption. Government agencies performing governmental functions are exempt
from taxation
Non-delegation. The power to tax being legislative in nature may not be delegated.
(subject to exceptions)
Constitutional limitations.
Observance of due process of law and equal protection of the laws. (sec, 1, Art. 3)
Any deprivation of life , liberty or property is with due process if it is done under the
authority of a valid law and after compliance with fair and reasonable methods or
procedure prescribed. The power to tax, can be exercised only for a constitutionally
valid public purpose and the subject of taxation must be within the taxing
jurisdiction of the state. The government may not utilize any form of assessment or
review which is arbitrary, unjust and which denies the taxpayer a fair opportunity to
assert his rights before a competent tribunal. All persons subject to legislation shall
be treated alike under like circumstances and conditions, both in the privileges
conferred in liabilities imposed. Persons and properties to be taxed shall be group,
and all the same class shall be subject to the same rate and the tax shall be
administered impartially upon them.
Rule of uniformity and equity in taxation (sec 28(1)Art VI) All taxable articles or
properties of the same class shall be taxed at the same rate. Uniformity implies
equality in burden not in amount. Equity requires that the apportionment of the tax
burden be more or less just in the light of the taxpayers ability to bear the tax
burden.

No imprisonment for non-payment of poll tax (sec. 20, Art III) A person cannot be
imprisoned for non-payment of community tax, but may be imprisoned for other
violations of the community tax law, such as falsification of the community tax
certificate, or for failure to pay other taxes.
Non-impairment of obligations and contracts, sec 10, Art III . the obligation of a
contract is impaired when its terms and conditions are changed by law or by a party
without the consent of the other, thereby weakening the position or the rights of the
latter. IF a tax exemption granted by law and of the nature of a contract between
the taxpayer and the government is revoked by a later taxing law, the said law shall
not be valid, because it will impair the obligation of contract.
Prohibition against infringement of religious freedom Sec 5, Art III, it has been said
that the constitutional guarantee of the free exercise and enjoyment of religious
profession and worship, which carries the right to disseminate religious belief and
information, is violated by the imposition of a license fee on the distribution and
sale of bibles and other religious literatures not for profit by a non-stock, non-profit
religious corporation.
Prohibition against appropriations for religious purposes, sec 29, (2) Art. VI,
Congress cannot appropriate funds for a private purpose, or for the benefit of any
priest, preacher or minister or for the support of any sect, church except when such
priest, preacher, is assigned to the armed forces or to any penal institutions,
orphanage or leprosarium.
exemption of all revenues and assets of non-stock, non-profit educational
institutions used actually, directly, and exclusively for educational purposes from
income, property and donor’s taxes and custom duties (sec. 4 (3 and 4) art. XIV.
Concurrence by a majority of all members of Congress in the passage of a law
granting tax exemptions. Sec. 28 (4) Art. VI.
Congress may not deprive the Supreme Court of its jurisdiction to review, revise,
reverse, modify or affirm on appeal or certiorari, final judgments and orders of lower
courts in all cases involving the legality of any tax, impost, assessment or any
penalty imposed in the relation thereto.
The question is a little unclear, but the following information may be helpful.
The Founding Fathers, in drafting the Constitution, were very clear on the issue of
taxation and the power to levy taxes, and on how revenue from those taxes could
be distributed among the states. Article 1, Section 2, Clause 3 reads:
"Representatives and direct Taxes shall be apportioned among the several states
which may be included within this Union, according to their respective numbers,
which shall be determined by adding to the whole number of free persons, including
those bounde to service for a term of years, and exclusing Indians not taxed, three

fifths of all other persons. The actual enumeration shall be made within three years
after the first meeting of theCongress of the United States, and within every
subsequent term of ten years, in such manner as they shall by law direct."
With regard to the power to raise taxes, Article 1, Section 8 of the Constitution reads
as follows:
"The Congress shall have power to lay and collect taxes, duties, imposts and
excises, to pay the debts and provide for the common defense and general welfare
of the United States; but all duties, imposts and excises shall be uniform throughout
the United States."
Article 1, Section 9 includes the following provision:
"No capitation, or other direct, tax shall be laid, unless in proportion to the Census
or enumeraton herein before directed to be taken."
Given the importance of the issue of taxation to the origins of the American
Revolution, it is not surprising that the Constitution's drafters made such efforts at
constraining the government's ability to levy taxes and, especially, to distribute the
revenue from taxes in a disproportional manner. The issue of taxation would
continue in perpetuity. The Founder's intention, however, was clear: the power to
raise and distribute taxes would be constrained, and no distribution of revenue
would be allowed to benefit one region at the expense of another. It is for this
reason that the Sixteenth Amendment to the Constitution, ratified in 1913, remains
controversial to this day. That amendment authorized Congress to impose an
income tax without the constraints in Article 1 on how that revenue can be
distributed.

THE POWER TO TAX IS THE POWER TO DESTROY

Yes, the power to tax is the power to destroy.

Any power that someone can wield has the power to destroy. It is irrelevant what
the power is as long as it is a power over another person. This means that the
power to tax can destroy. You can tax someone behind their means to live which
would make them die from no food.
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Yes.

The power of taxation without representation is definitely the power to destroy. The
power to tax people is an incredible responsibility that should be reserved for those
with others best interest at heart along with limitations. If one man has power to
determine the tax rights of thousands or even millions, he could destroy the entire
community of tax payers.
Posted by: Bam988
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But also to create.

I believe the power to tax is the power to destroy, but it is also the power to create
a better society. It all depends on what kinds of taxes are applied to whom, and at
what rate. By taxing fairly, the government can provide services that are hard to get
in the private sector. However, excessive or unfair taxes do indeed destroy a
society.
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Taxation limits growth

Excessive taxes can act adversely on a business or individual which will cause the
business to fail, or the individual to fail to be able to pay the tax demanded. This
effectively destroys the economy by reducing employment opportunities, or
throwing a person in prison for failure to pay. Instead of "pay as you go," the taxes
that are levied on the population can vary from year to year depending on the
popularity of whom we elect into office, and the corollary objective of working with a
state or federal budget. Therefore, if the person sponsoring the tax wants to limit
the growth of a sector of business or to reduce the ability of a segment of
population in order to meet his own (or his party's) goal, he has the power to
destroy.
Posted by: cavscout1739
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Everyone has heard the phrase “The power to tax is the power to destroy.” Few
know it derives from an 1819 Supreme Court ruling. In McCulloch v. Maryland, Chief
Justice John Marshall, writing the majority opinion, held “That the power to tax
involves the power to destroy[... is] not to be denied.” This phrase is universally
taken to mean that the government's power to tax is a terrible weapon that must be
reined in as much as possible. In the context of the decision, however, it was
virtually the opposite; McCulloch v. Maryland was actually a rebuke delivered to an
uppity state (Maryland) that was trying to tax a federal institution (the Second Bank
of the United States). In other words, 'if we give states the power to tax an
instrument of federal government, they could take the government down!' And we
couldn't have that, now could we? Still, the phrase stuck and people make of it what
they will.
Doubly ironic, then, that on June 28, 2012 Chief Justice John Roberts (the
“conservative” “moderate”) decided to let Obamacare and the individual mandate
for health insurance stand, not on the Commerce Clause, as argued, but on the
federal government's power to destroy...or is that tax? So what does this all mean?

To answer that, let's examine this in light of Scalia's broccoli conundrum.
Back in March, Justice Antonin Scalia drilled Obama administration lawyer Donald
Verrilli about whether the precedent set by Obamacare could lead to a situation
where the government could force people to buy broccoli. The argument itself is
trivial and absurd, as is the way of these philosophical debates, but the point is
profound. After all, if the government can force individuals to buy a certain product
or service in the market, what's to stop them at health insurance? Why not mandate
the eating of healthy foods? Or the purchase of goods from companies the
government wants to help out, like GM or Solyndra? Justice Roberts' majority
opinion this week effectively says that, no, the government cannot make you buy
broccoli. But they can create a “broccoli dissenter” tax, which could be refunded if
you prove to the government that you purchased your broccoli. In other words, the
government can't force you to buy something outright, but they can tax you for not
buying it.
In this case, the power to tax is most certainly a power to destroy. It's the
power to destroy freedom of choice, or at least whatever freedom was left in a
country with a Department of Homeland Security that boasts a “see something say
something” campaign straight out of the Stasi handbook and a Transportation
Security Administration that forces passengers at airports across the country to
choose between a porno scanner and a private part patdown every time they travel.
Now add one more governmental imposition to the list: you must now deposit a
portion of your paycheque into the bank accounts of one of the medical insurance
companies or the government will reach into your bank account and do it
themselves.
Still, there are those who choose to look beyond the basic violation of
human liberty involved in this decision. They see the problem of people who can't
afford medical insurance and cry out for the big stick of government to force
everyone to pay into the status quo system, as if this is the only conceivable way to
handle the problem. Never do they ask themselves how the people were able to
survive before the government began getting involved in the medical care system
in the first place; thus, they can safely ignore the Hippocratic oath, the doctors who
donated a portion of their time to pro bono work, the charity hospitals run by
religious organizations. Never do they question the validity of a health care system
dominated by Big Pharma that sees every disease as a nail crying out to be
hammered down by their latest pharmaceutical concoction. Never do they ponder
the Journal of the American Medical Association's own estimate of 225,000
medically-caused deaths per year in America. Never do they pause to question the
bureaucratic monster that is being created by this Frankenstein legislation (68 grant
programs, 47 bureacratic bodies, 29 pilot programs, 6 regulatory systems) or the
16,500 newly-created IRS agents who will be unleashed to enforce it. The IRS alone
has received over half a billion dollars in additional funding this year to begin
policing the new law and make sure everyone is complying with the individual

mandate...and that's only a portion of the money they're expected to spend gearing
up to implement Obamacare.
Not to worry about any of these concerns: Team Blue has just won the
football game, and for about half of the American public that's all they know or care
about. Team Red, meanwhile, believes that this is all Team Blue's fault and that their
team had nothing to do with it. The sick joke is that they're both wrong. Those on
the Left believe they have won some sort of victory for the working people because
they don't know that in March 2010 Senator Max Baucus singled out Liz Fowler as
the author of the key document that spawned the Obamacare bill. Liz Fowler also
happened to be the former VP of WellPoint, Inc., a major health insurance company.
Those on the Right, meanwhile, will use this as a rallying cry to put their
man into office on his pledge to repeal Obamacare...despite having passed its
admitted forerunner as Governor of Massachusetts where he touted the individual
mandate. It's all a smokescreen, of course, and given the bureaucratic inertia
behind the legislation, coupled with the boon to the insurance industry, it is almost
unimaginable that the law will be repealed at this point.
As is the way of these things, the Obamacare announcement was used to
sweep another explosive story under the rug. On any other news day of the year,
Congress' vote to hold Attorney General Holder in contempt would have been a
huge story. On Obamacare decision day, however, it's an also-ran. This, too, is
theatre, as the next step is to refer the criminal charge to the U.S. attorney for D.C.,
Ronald Machen, in effect asking him to prosecute his own boss. This is the irony of
having someone suspected of criminal wrongdoing as the head of a department
referred to as “Justice” should need little explanation. Still, it makes for good
political fireworks and will no doubt polarize and energize the bases of the two big
parties for the elections this fall. Of course the congressional investigation, led by
Oversight Committee Chair Darrell Issa, a Republican, will never get to the bottom
of the Fast and Furious gunwalking scandal because it leads back to Bush-era
gunwalking operations like “Wide Receiver.” Since it's a two-party scam, the
investigations will only go so far and then peter out under cover of the next political
scandal. This is why we have not seen and will not see any coverage of real drug
war revelations, from the origins of Fast and Furious to the testimony of rising
Sinaloa drug cartel star Zambada Niebla's that the Sinaloa leadership struck a deal
with the US government to avoid prosecution in exchange for ratting out their rivals.
And now, 60 years after the CIA helped the Sicilian Mafia smuggle heroin, 50 years
after Air America helped the Hmong smuggle opium and heroin, 40 years after
Nixon's “War on Drugs” began an era of unprecedented incarceration and increased
drug use, 30 years after the U.S. government started financing arms with cocaine
money, 25 years after Senator Kerry's report concluded that the State Department
was involved in drug trafficking, 15 years after the CIA Inspector General vindicated
Gary Webb's tale of U.S. government-supplied cocaine feeding the crack epidemic
of the 1980s, 10 years after the Bush administration began its own gunwalking

program to arm Mexican drug gangs, the Attorney General has been found in
contempt of Congress for covering up the current administration's gunwalking
program. Such is the way of American “justice.”
And as if all that isn't enough to give the lie to the “justice” of the “justice
system,” a federal judge has just ruled that the U.S. government is immune from
lawsuits for its practice of intentionally infecting unwitting foreigners with syphilis.
The case dates back to the 1940s, when the U.S. Public Health Service began an
eight-year “experiment” that involved exposing prisoners, orphans, prostitutes,
soldiers and other dupes to syphilis, gonorrhea and other diseases. Apparently, they
wanted to conduct research on how these diseases spread amongst the population,
and this is the method that occurred to them to carry out that research. The
experiments were led by Dr. John C. Cutler, who would later become infamous as
one of the coordinators of the Tuskegee experiment in which African Americans
were deliberately left with untreated syphilis to examine the spread of the disease.
The survivors of the Guatemalan experiment banded together to launch a class
action lawsuit for compensation in 2011, but the suit was struck down this week by
District Judge Reggie Walton, who ruled that the court does not have the authority
to provide any redress in this case. He did include his regret at the “deeply troubling
chapter in our Nation's history,” though, and Obama did offer an apology for the
experiments in 2010, so now the Guatemalans will be expected to shrug their
shoulders and go back to their lives, having accepted the decree from the bench
that, at the end of the day, they are just lab rats, and one does not pay the lab rats
for participating in studies.
Yet another remarkable ruling to barely make headlines in this week of the
Obamacare monstrosity is the case of Kim Dotcom, the Megaupload founder who
was arrested and had his mansion raided and property seized earlier this year. On
Thursday the New Zealand High Court ruled that the raid was illegal and that the
police's actions in sending closed copies of his hard drives to the USA at the behest
of the FBI was unlawful. Apparently the judicial review has determined that the
warrants were too wide in scope, led to the seizure of irrelevant material, and sent
seized material out of the country without the accused's consent, leaving the door
open for a possible compensation claim by Mr. Dotcom. The ruling is just the latest
setback for the US government, which has been hoping to set a number of
precedents with its dramatic international action against the Megaupload file
storage service. From the beginning there have been legal issues related to the
taking down of the web service before a trial, and the seizure of millions of
computer files that presumably have nothing to do with the copyright violations that
were the ostensible reason for the crackdown in the first place. Now, as the tactics
of the police and the possible overstepping of authority begins to come out in the
court process, it's looking less and less clear if the US will be able to set the
precedents they are looking for in the fight to make the abandoned SOPA and PIPA
legislation a de facto on-the-ground reality. We have already seen the Department

of Homeland Security getting into the act by seizing hundreds of domain names
over the past two years, allegedly for intellectual property violations and other
offenses. Time and again, the DHS has been found to have acted hamfistedly,
“accidentally” closing down 82,000 perfectly legal websites in one particularly
egregious incident of 'act first, ask questions later.' Americans who are concerned
with this new era of guilty-until-proven-innocent web monitoring have the New
Zealand government to thank for putting some sort of brake on the process. The
Megaupload trial itself, of course, will continue to drag on for years.
And so it is that just as taxation is the power to destroy (even if not in the
way that statement was originally intended), perhaps, too, we can come to
understand that the authority of the judicial branch itself carries the power to
destroy: The power to destroy individual freedoms. The power to destroy the lives of
those who have been used as lab rats by governments of yesteryear. The power to
destroy websites and free speech online. At least now we know why judges wield a
gavel.
The Supreme Court’s ruling upholding the Affordable Care Act is constitutionally
correct. This doesn’t prevent us from seeing the individual mandate as a tax on
freedom—an exercise of Congress’s constitutional power to tax so as to destroy
personal and institutional freedom with respect to health insurance.
“The power to tax is the power to destroy,” wrote John Marshall, memorably, for a
unanimous Court in McCulloch v. Maryland, 193 years ago. True enough.And
Congress has the power to tax.
The federal taxing power, the very first power set forth in Congress’s arsenal of
Article I, section 8 enumerated powers, is plenary over the objects to which it
extends: Congress may tax anything it likes (or doesn’t like). The taxing power may
be employed for regulatory purposes, and not merely to raise revenue. As long as
an exaction really functions as a tax, it can be used to accomplish policy ends—to
induce, deter, or change conduct. And those ends can include things the federal
government otherwise would lack power to command directly: the power to tax is a
freestanding constitutional power of Congress. It is not derivative of or dependent
upon any other power, such as the power to regulate interstate commerce. The
power to tax is the power to destroy, indirectly, even what little Congress cannot
destroy directly.
Moreover, a tax is a tax, within Congress’s constitutional power to impose,
regardless of what Congress calls it—a “fee,” an “exaction,” a “revenue
enhancement,” or a “penalty.” Wielded with skill (or perhaps sinister finesse),
Congress’s power to tax is an enormous and fearsome constitutional power,
explicitly granted and subject to few limitations.
It follows, then—unfortunately—that the Supreme Court’s recent decision inNational
Federation of Independent Business v. Sebelius, which upheld the individual

mandate provisions of the “Affordable Care Act,” was constitutionally correct. But it
is important to be clear on what this means: the mandate is constitutional because
it is a tax – and it is a tax on freedom. Congress has the power to tax, and thereby
to destroy, individual freedom in health insurance.
***
Reduced to its barest essentials, NFIB v. Sebelius holds that even if Congress lacks
power under the Commerce Clause to mandate that individuals purchase a
commercial product such as health insurance (as a 5–4 majority of the Court held —
a truly landmark ruling limiting national legislative power), Congress may
accomplish much the same result by imposing a tax on the failure to purchase such
a commercial product (as a different 5–4 majority of the Court held). The latter
holding was not legally extraordinary; it merely applied longstanding views of the
scope of Congress’s taxing power to a new situation.
NFIB v. Sebelius confirms that there is more than one way for the federal
government to skin a cat. The Court held that the individual-mandate requirement,
enforced by a penalty paid to the IRS with income tax payments, fell within
Congress’s power to regulate or induce conduct through the power to tax. It made
no difference that Congress did not label its financial exaction a tax. Something can
fall within the taxing power of Congress even if Congress does not have the political
courage to call it a “tax.”
This conclusion is legally correct. Indeed, it is difficult to come up with a good,
principled, fully persuasive argument that Congress lacks constitutional power to
impose a tax for not having health insurance, as an incentive to get people to buy
such insurance. The dissenters certainly did not come up with such an argument.
They did not argue that Congress could not impose such a tax. Indeed, they
conceded that Congress had the power to do so. Rather, the dissenters argued only
that Congress did not impose a tax, because the legislation insisted on calling the
exaction a “penalty.”
That is not an argument about constitutional power; it is not a claim that the taxing
power is narrower than the majority said it was. Rather, it is an argument that the
taxing power requires the invocation of magic words—that to use the taxing power,
one must use the word “tax,” or something close to it, or at least something
ambiguous. At the very least, Congress must not use the word “penalty.”
Chief Justice John Roberts’s majority opinion blew that weak argument out of the
water. He cited several cases holding that Congress’s label is immaterial to the
existence of the taxing power: the substance of an exaction is what matters. As
Roberts pointed out, Obamacare’s financial penalty is not a punishment for wrongful
conduct, like a criminal fine, but a tax incentive designed to promote private
conduct to achieve a public policy purpose. Congress does this sort of thing with the
tax code all the time.

Roberts clinched the argument with a hypothetical: Suppose Congress required
homeowners without energy-efficient windows to pay the IRS a $50 surcharge with
their income taxes, exempting those below a certain income level. “No one would
doubt that this law imposed a tax, and was within Congress’s power to tax,” Roberts
wrote. “That conclusion should not change simply because Congress used the word
‘penalty’ to describe the payment.”
This has to be right. Congress acts within its power “to declare War” even when it
does not use the words “declare” or “war,” but styles its act as an “Authorization for
Use of Military Force.” Congress acts within its power over interstate commerce
when it regulates commercial activity having substantial interstate effects, whether
it uses the word “commerce” or not. So too with the power to tax: if an exaction
walks like a tax, waddles like a tax, swims like a tax, and quacks like a tax, it is a
tax for purposes of falling within Congress’s taxing power.
A more plausible, if still weak, objection might be that a tax on non-purchase of
health insurance may be a “direct” rather than an indirect tax, subject to the Taxing
Clause’s proviso that direct taxes be “apportioned” equally among the States. The
dissent noted this possibility but could not bring itself to argue that this was actually
the case. Chief Justice Roberts’s response is more than plausible: direct taxes were
understood at the time of the Constitution’s framing to be “head” taxes—per capita
exactions—like poll taxes. Obamacare’s tax-penalty is directed at conduct and fits
into no known category of “direct” tax. (And even if it did, the proper remedy would
be to require apportionment, not to invalidate the tax entirely.)
Does not such a broad federal taxing power threaten federalism? Does it not
suggest that the national government could use the taxing power in effect to
regulate anything and everything—one of the same arguments Roberts made so
effectively against a no-limits reading of the Commerce Clause and Necessary and
Proper Clause in the same case?
The answer is that the power to tax is simply a different constitutional power, with
different dimensions, than the Commerce Clause power. There is no free-floating
“Federalism Clause” in the Constitution that cuts across and limits all national
powers. Federalism is simply the description for the institutional arrangement
resulting from the Constitution’s enumeration and limitation of national powers and
reservation of the rest to the states. If one of those national powers is a broadly
worded taxing power, that power is simply part of the constitutional structure of our
federalism, and must be given full effect by the courts. One might not like such a
power, but there it is in black and white.
A faithful interpreter of the Constitution must give the taxing power the force
dictated by the original public meaning of the words of the text, and not impose
policy-driven limitations or additions upon a text whose words do not properly bear
such a reading. (Along that interpretive road lies judicial activism of theDred

Scott, Plessy, Lochner, Roe, and Lawrence variety. Conservatives, no less than
liberals, should be faulted if they allow their policy preferences to drive their
constitutional interpretation.)
Finally, NFIB v. Sebelius held that there are limits even to the taxing power. To fit
within the taxing power, an exaction must actually operate as a tax. As Chief Justice
Roberts’s opinion makes clear, a “tax” so confiscatory as to make the taxed conduct
practically impossible is not really a tax, but a civil or quasi-criminal penalty for
conduct that the individual is not truly free to choose. This limitation on the power
to tax mirrors the standard Roberts used, later in the opinion, to strike down the
act’s provisions coercing states to change their Medicaid programs, as exceeding
Congress’s power to spend. Congress cannot constitutionally leverage its power to
spend into a power to command states, by making offers that cannot be refused.
The new Medicaid provisions of the Affordable Care Act were an unconstitutional
“gun to the head,” in Roberts’s colorful phrase—an extremely important ruling in its
own right.
But the individual-mandate penalty did not approach the limits of the power to tax.
The charge for not complying with the individual mandate was less than the cost of
complying. In the end, nobody is truly forced to buy health insurance; they are
merely taxed, to an annoying extent, for not doing so, with the goal of getting
people to decide that they might as well buy health insurance.
Chief Justice Roberts’s opinion quickly produced wailing and gnashing of teeth in
conservative circles — wailing and gnashing that is only now beginning to die down,
a month or so later. On policy grounds this may be understandable. On legal
grounds it is far less so. One might have wished that the Court had ventured a bold,
new limitation on the scope of the federal taxing power — as it did with the
Commerce Clause, the Necessary and Proper Clause, and the spending power.
But to suggest that Roberts was somehow a “traitor” for not signing on to a position
he ultimately found unpersuasive (and that is unpersuasive) or, more absurdly yet,
that he “flipped” positions for political purposes (an utterly preposterous proposition
that no one remotely familiar with Roberts or his opinions could possibly credit),
fails to recognize the simplest, most straightforward explanation for Roberts’s
actions. He voted and wrote as he did based on his convictions and soundly
reasoned principles. The dissenters’ position on the taxing power is not “correct”
simply because four conservative justices reached it. Roberts’s position is not
incorrect because four liberal justices joined it. To suggest either is to swallow a
large ad hominem fallacy and to fail to engage Roberts’s legal analysis on its merits.
The only persuasive explanation for Roberts’s position is that, in the end, he thought
it was correct. He surely did not change his position in response to perceived White
House pressure, as some have speculated. Roberts is one of the least likely persons
to be cowed by political pressure (or by peer pressure, as his willingness to depart

from his conservative colleagues’ views demonstrates). The better account is that
Roberts’s vote always hung in the balance because of the Taxing Clause issue. This
may explain why President Obama clumsily weighed in after oral argument: as I
hypothesized in April, someone in the Court’s liberal camp, after the Court’s
conference on the case, likely leaked the closeness of the vote and suggested
talking points to the administration (which President Obama promptly flubbed). But
to suggest that the president’s remarks influenced Roberts is utterly unrealistic.
What doubtless did influence Roberts was the weakness of the draft opinion
rejecting the Taxing Clause power. If the “joint dissent” was once a draft majority
opinion (and there are hints of this in the opinion itself), it appears that the
argument offered was that the taxing power was not implicated because the
legislation did not call the exaction a tax. In the end, Chief Justice Roberts rightly
found that approach unpersuasive. The taxing power argument could not thus be
dismissed with the back of the hand, as the dissenters proposed to do.
So, though John Roberts is an ardent defender of constitutional federalism—as
demonstrated by his rejection of the Commerce Clause as an all-purpose device for
plenary regulatory power of any conduct affecting commerce; by his aggressive
reining-in of the Necessary and Proper Clause; and by the important ruling striking
down the Medicaid expansion as improperly leveraging the spending power to
coerce recipients of federal funds—he was forced to conclude that the individual
mandate fell within the federal government’s power to tax.
***
And what Obamacare taxes is personal freedom in health care insurance. The
individual mandate is a tax on freedom, and the power to tax such freedom is the
power to destroy that freedom.
Even worse, as interpreted by the Obama administration, the Affordable Care Act
empowers the administration to destroy religious freedom by compelling religious
groups to provide or pay for “health” coverage in the form of contraception or
abortion drugs in violation of their religious beliefs. National Federation of
Independent Business v. Sebelius does not address that question, leaving very
much in play in the religious freedom argument that such compulsion violates the
federal Religious Freedom Restoration Act and the First Amendment. Had the Court
struck down the Affordable Care Act in its entirety, the religious freedom objection
to its implementation would have become moot. As matters stand, the cases
challenging this administration mandate have now become the most important
religious freedom litigation in decades.
NFIB v. Sebelius failed to provide a judicial deus ex machina dismantling
Obamacare’s freedom-destroying machinery. Religious freedom is now the next line
of defense against Obamacare’s most egregious threats to liberty. But even if
successful, that defense will not eliminate Obamacare itself. Such complete

dismantling must be achieved by political means. The power to tax is the power to
destroy, but the power to elect is the power to repair.
Michael Stokes Paulsen is University Chair and Professor of Law at the University of
St. Thomas, in Minneapolis, and is co-director of its Pro-Life Advocacy Center
(PLACE).

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