Justice Roberts’ holding that Obamacare’s individual mandate is constitutional as a “tax” is not only an incoherent stretching of Congress’ taxing authority, but defies the very limits of Congress‘ delegated powers which were carefully enumerated in our Constitution and subjoined to Art. I, § 8, cl.1 by our Founding Fathers ___ Obamacare being absent in the enumeration!
The Roberts ruling is immediately exposed for its absurdity when it is analyzed.
First, let us confirm beyond the shadow of doubt that Congress’ taxing powers under imposts, duties, excises and direct taxes, whatever they may be, are limited by other provisions in our Constitution, e.g., the Court in the recent decision United States v. International Business Machines Corp. - 517 U.S. 843 (1996) struck down an excise tax as violating that part of our federal Constitution which declares: "No Tax or Duty shall be laid on Articles exported from any State." U. S. Const., Art. I, § 9, cl. 5.
And in EISNER v. MACOMBER , 252 U.S. 189 (1920) [after the Sixteenth Amendment was adopted] the Supreme Court reminded Congress that it was not empowered by the Sixteenth Amendment to tax, as income of a stockholder and without “apportionment“, a stock dividend made lawfully and in good faith, U. S. Const., Art. I, § 2, cl. 3, and, Art. I, § 9, cl. 4.
And so, although Congress has been granted power to lay and collect various kinds of taxes, each kind of tax has limits beyond which Congress may not venture when laying these taxes. Additionally, we must keep in mind that Congress’ taxing powers were granted for specific enumerated functions subjoined to Art. I, § 8, cl.1 (Clauses 2 through 11), and that Justice Roberts acknowledged the individual mandate tax cannot be sustained under Congress’ power to “regulate commerce“, one of Congress‘ enumerated functions subjoined to Art. I, § 8, cl.1, (see clause 3).
And now that it is established that the kinds of taxes Congress may lay and collect have limits beyond which Congress may not venture, and that Congress is likewise bound to laying and collecting taxes for specific enumerated functions listed beneath Art. I, § 8, cl.1, and that the individual mandate tax cannot be sustained under Congress’ power to “regulate commerce” as announced by Justice Roberts, nor has he pointed to any other function subjoined to Art. I, § 8, cl.1 which can sustain the individual mandate tax, we turn to the interesting question asking Roberts, is Congress authorized to lay a tax for the sole purpose of punishing an identifiable group of Citizens which is exactly what the individual mandate tax does?
And in regard to a tax not being a true tax but a punishment, the case Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), is quite instructive because the tax there was found to not be a true tax but a punishment and thus violated the 5th Amendment of our federal Constitution.
Bottom line is, the 26 States which filed suite against the individual mandate must now re-file and argue __ since Justice Roberts has identified the individual mandate as a tax ___ they must now challenge the tax in question as not being within the definition of an impost, duty, or excise as historically used and understood by our founding fathers. And since the individual mandate tax is not apportioned, it violates the command that direct taxes shall be apportioned among the States. The following formula may be considered as our Constitution‘s fair share formula:
----------------------- X SUM TO BE RAISED = STATE`S SHARE OF TAX
Total U.S. Pop.
In addition, the States must contend the tax goes far beyond the enumerated functions for which Congress may “Lay and collect Taxes” and are specifically listed beneath Art. I, § 8, cl.1, Obamacare not being included in that list of particulars!
And if there is any question as to the limited functions for which Congress may tax under Art. I, § 8, cl.1, let our founding fathers speak for themselves with reference to this provision and especially the phrase “general welfare” which appears in Art. I, § 8, cl.1:
In No. 83 Federalist, which is applicable to the meaning of “general welfare”, Hamilton, in crystal clear language refers to a “specification of particulars” which he goes on to say “evidently excludes all pretension to a general legislative authority“. See Art. I, § 8, clauses 2 through 11, for the subjoined “specification of particulars”.
"...the power of Congress...shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended..."
And, Madison, in No. 41 Federalist, explaining the meaning of the general welfare clause to gain the approval of the proposed constitution, states the following:
"It has been urged and echoed, that the power "to lay and collect taxes...to pay the debts, and provide for the common defense and the general welfare of the United States amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor [the anti federalists] for objections, than their stooping to such a misconstruction...But what color can this objection have, when a specification of the object alluded to by these general terms immediately follows, and is not ever separated by a longer pause than a semicolon?...For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power...But the idea of an enumeration of particulars which neither explain nor qualify the general meaning...is an absurdity."
Likewise, in the Virginia ratification Convention Madison explains the general welfare phrase in the following manner so as to gain ratification of the constitution: "the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction."[3 Elliots 95]
Also see Nicholas, 3 Elliot 443 regarding the general welfare clause, which he pointed out "was united, not to the general power of legislation, but to the particular power of laying and collecting taxes...."
Similarly , George Mason, in the Virginia ratification Convention informs the convention
"The Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise the power of providing for the general welfare may be perverted to its destruction.". [3 Elliots 442]
For this very reason the Tenth Amendment was quickly ratified to intentionally put to rest any question whatsoever regarding the general welfare clause as being a general legislative grant of power, and thereby cut off the pretext to allow Congress to extended its powers via the wording provide for the “general welfare“.
And so, although Justice Roberts has sustained the individual mandate as a tax, he has not established which taxing authority [impost, duty, excise or direct tax] is used, nor the function for which the tax is being laid, and if it is laid to fulfill a function within the list of particulars subjoined to Art. I, § 8, cl.1.which enumerate the constitutionally authorized functions for which Congress may tax.
Hopefully Florida’s AG, Pam Bondi, will take the lead and challenge the individual mandate tax for the above stated reasons and have our Constitution‘s clearly defined protections reaffirmed.
"If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"___ Justice Story