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CaptainAmerica
06-30-2012, 02:19 PM
NAPOLITANO: Roberts unleashes vast federal power
Basis for high court ruling not found in the Constitution

'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”

By Andrew P. Napolitano
Among the 17 lawyers who have served as chief jus- tice 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 largely have written the history we have all been taught in government schools. They revere him because he is the intellectual progenitor of federal power. His 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 much 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 John Marshall’s current successor, Chief Justice G. John Roberts Jr. Often, five-member majorities on the court are fragile, and bizarre compromises are necessary to keep a five-member majority from becoming a four-member minority. Perhaps 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, legal or intracourt agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of John Marshall’s big-government aphorisms: The power to tax is the power to destroy.

The reasoning underlying the 5-4 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 Internal Revenue Service 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 or gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving. The statute is more than 2,700 pages in length; 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 7-2 majority (which excluded two of the progressive justices who joined the chief justice 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 apparently is 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 has never held that a penalty imposed for violating a federal law was really a tax. And it has never linguistically converted the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.

I wonder if the chief justice realized what he and the progressive wing of the court were doing 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 their ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.

Even the Beatles understood this.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. He is the author of “It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom” (Thomas Nelson, 2011).

http://www.washingtontimes.com/news/2012/jun/29/roberts-unleashes-vast-federal-power/


http://www.youtube.com/watch?v=chaGmeyyElM

tangent4ronpaul
06-30-2012, 02:48 PM
their ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.

Does this have an up side? Congress usually justifies everything they do either because of the commerce clause or the general welfare clause (sic). What effect does this have on every other law passed under the auspices of the commerce clause? Wasn't the foundation of gvmt power via the commerce clause a court case where someone growing wheat was involved in interstate commerce because by doing so, even if it was only for personal use and not sold, they would not be purchasing imported wheat.

Wasn't the farmer taxed and regulated simply for deciding not to engage in interstate commerce and grow his own?
Are we not being taxed and regulated simply for deciding not to engage in interstate commerce? (buy health insurance)?

What other laws or cases involving the commerce clause might be struck down or reversed because of this ruling?

-t

CaptainAmerica
06-30-2012, 02:51 PM
Does this have an up side? Congress usually justifies everything they do either because of the commerce clause or the general welfare clause (sic). What effect does this have on every other law passed under the auspices of the commerce clause? Wasn't the foundation of gvmt power via the commerce clause a court case where someone growing wheat was involved in interstate commerce because by doing so, even if it was only for personal use and not sold, they would not be purchasing imported wheat.

What other laws or cases involving the commerce clause might be struck down or reversed because of this ruling?

-t

As napolitano said : If you don't eat broccoli as mandated by the federal government you will be taxed for not eating broccoli. Anything the government wants you to do and you disobey will be punished with a tax or even worse..punished for not paying taxes.

tangent4ronpaul
06-30-2012, 02:57 PM
As napolitano said : If you don't eat broccoli as mandated by the federal government you will be taxed for not eating broccoli. Anything the government wants you to do and you disobey will be punished with a tax or even worse..punished for not paying taxes.

Was editing when you posted:
Wasn't the farmer taxed and regulated simply for deciding not to engage in interstate commerce and grow his own?
Are we not being taxed and regulated simply for deciding not to engage in interstate commerce? (buy health insurance)?


Yes, I get that the government has a new tool to tax and compel behavior. Not good, but did they just kick out of cornerstone of their power to do so?

-t

Weston White
06-30-2012, 03:52 PM
As usual, Mr. Napolitano sums things up quite expertly.


And that is an interesting aspect to consider, must a congruity exist between the enforcement of power and its causation for action for there to be a valid effect; meaning that if powers under the regulation of commerce are limited to only what has been prescribed within the U.S. Constitution (and subsequently common law), would whatever causations for taxation, become beset, by those same limitations, as by the regulation of commerce?

1. Certainly, the national government can tax only within its jurisdiction to do so.

2. Certainly, the national government may impose taxation to pay its debts, while in the performance of providing for the nation’s defenses and general welfare.

3. Certainly, the national government can tax interstate commerce as a means of (reasonable) regulation.

4. Certainly, the national government may impose taxes only for the purpose of providing necessary revenue to its national Treasury and not simply to manipulate or otherwise eliminate or require activity (for such is by no means a tax, but a fee, fine, or penalty).

5. Certainly, health care plans are largely apart of interstate commerce.

6. Certainly, the national government may tax individuals and their personalty directly, while circumstances are emergent.

7. Certainly, the average individual, while they may collectively impact interstate commerce, they are not relationally apart of interstate commerce.

8. Certainly, the national government is not specifically empowered to direct health care.


To me the findings concerning Congress’ (new) powers of taxation are completely illogical.

CaptainAmerica
06-30-2012, 03:57 PM
Was editing when you posted:
Wasn't the farmer taxed and regulated simply for deciding not to engage in interstate commerce and grow his own?
Are we not being taxed and regulated simply for deciding not to engage in interstate commerce? (buy health insurance)?


Yes, I get that the government has a new tool to tax and compel behavior. Not good, but did they just kick out of cornerstone of their power to do so?

-t At this point the federal government does whatever they want legally or illegally, and by any means necessary to control the american people . The supreme court ruling that Justice Roberts made was completely lacking of wisdom. Anyone with half a sense for freedom can see how immoral it is to translate a mandate as a tax and the kind of damage it does to the Republic is possibly irreversible.We can repeal Obamacare but can we reverse the abysmal definition Roberts gave for the word "mandate"?