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    By Morgan Shields, Young America's Foundation

    One of the most fanciful things about Chief Justice Roberts' opinion on Obamacare was an example he gave illustrating the power Congress has to tax.  He stated that Congress could enact a statute that requires every taxpayer who owns a house without energy efficient windows to pay a $50 "tax."

    The Chief Justice said that "No one would doubt that this law imposed a tax, and was within Congress's power to tax."  Ironically, he had no citations to any authority or examples of taxes that looked anything like this.

    Congress taxes items that they don't want us to buy with sin taxes: cigarettes and alcohol.  I can avoid the tax by not buying the products.  I do not smoke, so I do not pay the tax.  They also tax other products that we buy like gasoline, which I have to pay when I buy the gas at the pump.  Once again, I can avoid this simply by not driving.

    Congress also gives tax exemptions and deductions for "good behavior" like buying a home, going to college (by allowing student loan interest to be deducted from your taxes), saving for retirement, and giving to charities.

    Can you imagine a tax code which taxes non-purchasing?

    According to the Chief Justice, this is the taxing power that Congress possesses.  Instead of incentivizing people to buy homes by giving people tax credits for the purchase of their new home, Congress has the power to start punishing people who don't buy homes by charging them a $50 fine for not purchasing a home. 

    Of course there is nothing that would limit this fine to $50.00-what about a $5,000 fine?  What if Congress really, really wants us to buy homes?

    There is something fundamentally different about punishing someone who purchases a product that Congress does not like (i.e., cigarettes), rewarding someone who purchases something good (i.e., a home), and punishing someone who does not buy something we want them to (i.e., energy efficient windows). 

    The Chief Justice realized the difference between inactivity and activity when it came to the Commerce Clause, but refused to understand the fundamental difference between taxing purchases and non‑purchases under the taxing power.

    In doing so, Chief Justice Roberts traded a virtually unlimited Commerce Clause power for a virtually unlimited taxing power.

    Morgan Shields is a legal coordinator for Young America's Foundation.  

    • Readers' Comments

    • Great article
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    • Taxes or fines are levied on polluting vehicles all the time. Owning a house that people live in is like driving a car.
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    • It's the difference between the carrot and the stick. Congress got tired of coaxing us with tax carrots, so they brought out the Obamacare stick.
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    • It's the difference between the carrot and the stick. Congress got tired of trying to coax us with tax carrots, so they whipped out the Obamatax stick.
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