Can Congress Tax Inactivity?

Last updated on: June 28, 2012 at 4:53 pm by Timothy Dalrymple

Can Congress Tax Inactivity? 2012-06-28T16:53:06-04:00 Timothy Dalrymple

LOGO Patheos Explore the world's faith through different perspectives on religion and spirituality! Patheos has the views of the prevalent religions and spiritualities of the world.

One of the central questions in the Obamacare ruling is whether Congress has the power to tax inactivity or tax the failure to purchase something. This is the most obvious retort to the cigarettes analogy. Granted, Congress has the power to tax the purchase of a cigarette, but does Congress possess the power to tax you for not purchasing a cigarette?

Roberts begins to addresses this in the opinion he authored on p. 41. There are three considerations, he says, that address this concern.

First, the Constitution does not guarantee that individuals can avoid taxes through inactivity. While many taxes are levied when you make a purchase or take an action, the Constitution contemplates a capitation or poll tax or a tax simply for existing. Roberts thinks, then, that there is explicit Constitutional space for taxes of this sort.

Second, he says, the power to tax is not unlimited. Roberts refers to decisions “invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority,” or invalidating taxes that are so extreme as to be purely punitive. So the Congress could not, for instance, tax someone for not teaching their children the Gospel, because what we teach our children is beyond the proper sphere of federal authority – and the Congress could not impose a $100,000 tax for not purchasing health insurance since then the amount would be so punitive that the “tax” would no longer be a tax but a compulsion.

Third, he says, the power of taxation (thus defined) “does not give Congress the same degree of control [as one has under the Commerce Clause] over individual behavior.” Essentially, if the federal government had the power to compel the purchase of health insurance under the Commerce Clause, it could theoretically imprison a person who refuses. If the federal government’s power is only through the tax code, then it can only tax a person who refuses to purchase health insurance. Given that the tax cannot be clearly punitive, the tax will not be extreme, and a person can simply choose to pay the tax rather than take the action the government is seeking to encourage.

I find the second point persuasive, although I wish that Roberts had set forth the limitations more fully. The taxing power is limited to those who pay taxes, there is an (undefined) limit on how extreme the tax can be, and it cannot reach into areas that are in principle beyond federal authority. Are there other limitations? Testing what is beyond federal power, and testing the limit of how heavy the tax can be, will be a matter for further litigation to explore.

I personally find the third point persuasive, although I seem to be in the minority amongst conservatives I am hearing and reading. If you are faced with the options of purchasing an item or paying a tax, then you have to comply with those two options at risk of imprisonment. This seems to be the case with any kind of tax, however — which is why I find Roberts persuasive on this point.

The weak point, it seems to me, is in the first point. Is this an impermissible, direct, unenumerated tax? That you cannot avoid taxation through inactivity is not, it seems to me, the same thing as saying the federal government can tax you for failing to purchase particular products. If you cannot compel people to enter into commerce, why can you tax them for failing to enter into commerce?

Partisans on both sides should consider how this can play out. While you can use tax breaks to incentivize the purchase of products you want to encourage, can you use tax penalties to penalize those who fail to purchase that product? That is the ruling here. So it would seem that the government can not only use incentives to encourage the purchase of fuel-efficient vehicles, but they could penalize those who fail to buy such cars. If Congress’ taxing power extends this far, can you tax a person for getting an abortion? Or for not getting sterilized? The limits are not very clear. It would seem that you could stick a tax on a broad array of human activity and thus gain far-reaching control over the behavior of the citizens.

Uncategorized

Previous Post

June 28, 2012

The Obamacare Ruling: Winners, Losers and Consequences

Next Post

June 28, 2012 Five Possible Silver Linings in the Obamacare Decision

Browse Our Archives

Select a Category Abortion Abortion adoption Africa Aging AIDS America Worship American history Americolatry An Open Letter to a College Freshman animals Apologetics art Atheism Authors Barack Obama Bible Biblical Scholarship Billy Graham Blogging Bono Book Review Books That Change Lives Breakfast Links Bulletin Board Business Children Christian Approach to Politics Christian Media Christian Right Derangement Syndrome Christianity and Homosexuality Christians in Government Christmas Chuck Colson CLS v Martinez Comic Creation Creativity and the Arts Cross Examinations Cross Investigations Daily Fragment Daily Trinity Death debt Deep Thoughts on Fatherhood depression economy education Election 2012 entertainment Environment Epistemology Erik Campano Euthanasia Evangelicalism Evangelicals and Gays Everyday Transcendence evil evolution Facebook Jesus faith Faith and Politics Faith and Politics Faith and Politics Faith and Politics Faith and Politics Faith and Politics Faith and Politics faith and reason family Feminism foreign affairs Franklin Graham Future of Evangelicalism Galen D. gay marriage George W. Bush Guest Posts Guns Gymnastics Harold Camping Heaven Hell Holidays Hollywood Homosexuality iam2.org Illegal Immigration immigration Immigration Reform Injustice Inspiration Interviews Islam Jeremy Lin Jesus jesus christ John Mark Reynolds Johnnie Moore Judgment Day Just War Theory Killing Osama Link of the Day Lists of the Week Mark Goldblatt Marriage Military Missions Mitt Romney Modern Western Thought Monastic wisdom Mormonism Morning Hash Morning Report Motherhood Movies Obamacare Old Testament Orphan Care Palin Parenting Pastoral Resources Patheos Peace Between Religions PEPFAR Persecution Peter Wehner Peter Wehner Philosophy Political Quotes of the Day politics Politics and Economics Pornography Prejudice Prisoner Rape Question of the Week Race Radical Faith Rapture Ravi Zacharias Rick Santorum Russia Salvation Sarah Palin Scandals Science Science and Faith Separation of Church and State Series sex sex slavery social justice Social Justice Ministry Spiritual Disciplines sports Steven Tyler Suffering Suicide Sunday Funnies T. Dalrymple Tea Party Technology terrorism The Christian Media Files The Daily Trinity The Electorate The Ethics of Rhetoric The Future of Seminary Education The Middle East The Obama Presidency theological Theological Renewal Theology Uncategorized Understanding Evangelicalism Vocation war War and Peace With Distinction Word to the Wise Writers

Select a Month October 2015 June 2015 May 2015 March 2015 December 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 June 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 October 2009 September 2009 August 2009 July 2009 June 2009

TAKE THE

Religious Wisdom Quiz