By Morgan Shields, Young America's
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
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
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
Morgan Shields is a legal coordinator for Young