Taxes are not politically popular. Just ask the thousands of school districts that have failed to get voter approval for new taxes. Or consider why local governments have introduced all manner of charges and fees rather than seek tax increases. It is far easier to enact regulations than it is to impose taxes. The Supreme Court has effectively relieved Congress of the political burden of calling a spade a spade — calling a tax a tax.
The fact that the politics of assessing a new tax are different from the politics of imposing a new regulation is important to determining the constitutionality of a congressional act that purports to be one or the other. If Congress and the president, with an assist from the Supreme Court, can deceive the citizens about the nature of government actions, government by and for the people is impossible. Taxation under cover of regulation is taxation without representation.
The fact that five members of the court agree that the Commerce Clause does not give Congress authority to enact the individual mandate will provide some ammunition to members of Congress who oppose future changes in the relation between the individual and government. Perhaps a much-needed line has been drawn in the federalism sands.
But so long as a majority of the Supreme Court is prepared to place function over form — to conclude that if it could have been a tax it is a tax, the constitutional enumeration of congressional powers will remain an empty promise. Constitutions by their nature rely on a respect for formal definitions of individual rights and government powers. Regrettably, Chief Justice Roberts has embraced President Obama’s whatever-it-takes, do-the-right-thing, activist approach to constitutional interpretation.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.