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Brian Baker: Power to tax vs. right of free choice

Posted: June 29, 2012 1:00 a.m.
Updated: June 29, 2012 1:00 a.m.

I have to admit: I called this one completely wrong, and have been doing so for almost three years.

When Obamacare was first proposed by the Democrats, herded by Nancy Pelosi and Harry Reid, I forecast — loudly and often — that the mandate that people buy health insurance or face financial penalties imposed by the government would never pass judicial scrutiny.

How could it? What in the Constitution empowered the government to force people to buy products or enter into contracts to purchase certain services?

Well, in a terrible decision handed down Thursday by the Supreme Court jesters, we found out. According to the majority opinion, written by Chief Justice John Roberts, it turns out that the government has the power to pretty much regulate any behavior it wants, as long as the enforcement mechanism is called a “tax.”

In the Supreme Court case of McCulloch v. Maryland in 1819, Daniel Webster made the argument, with which Chief Justice John Marshall agreed, that “the power to tax is the power to destroy” and overturned Maryland’s tax on banks.

In today’s decision, however, Roberts wrote that the “power to tax is not the power to destroy while this court sits,” in direct contradiction to the man generally considered to be this country’s greatest chief justice.

How he comes to such a conclusion is entirely beyond me and defies all reasoning and common sense.

The tortured rationalizations in Roberts’ controlling majority opinion rely on two absurd contentions:

1. That a tax penalty isn’t enforced by imprisonment, and;

2. the tax penalty isn’t “onerous.”

Well, refuse to pay the tax and see whether or not you end up in prison. And what may not be “onerous” to Roberts — with his six-figure income and government benefits — may well be “onerous” to a couple of young married kids barely squeaking by while juggling a mortgage and car payments and underemployment — if employed at all — in this terrible economy.

According to Roberts, the government is perfectly within its rights to use tax law to “encourage” certain behaviors and discourage others. So ... what can we anticipate moving forward?

How about “weight penalties”? If your body mass index (BMI) exceeds certain levels, or if your weight falls outside certain arbitrary parameters for your height as set by the government, can you expect a “tax surcharge”? Why not?

How about a “tax surcharge” for smokers? After all, the government, in the interest of cost control for the “public obligation” of controlling health care costs, now has a vested interest in your behavior.

How about a “tax surcharge” if you had a traffic ticket that year? Hey ... that’s “risky behavior” and you could incur “health care costs” if you get in an accident, right?

What about if you want to buy a foreign car? The government has determined that the American car industry is “too big to fail,” and therefore if you “choose” to buy a foreign car, you’re contributing to the risk that American auto makers will fail. So I guess you should pay a “tax penalty” for not buying American.

Don’t laugh. Way back when the hysteria about second-hand smoke was taking place, I predicted that if the penalties being considered against tobacco companies ever passed into law, we’d ultimately see similar actions taken against other unpopular behavior, like fast food consumption. People laughed.

Well ... look around you. Laws against trans-fats in foods (bye-bye, flavor), New York Mayor Michael Bloomberg’s limits on soft drink sizes in that city, pate banned here in California, San Francisco’s ban on Happy Meal toys at McDonalds, on and on and on.

The reality is that the endorsement of the mandate by the Supremes opens the door for government to regulate virtually every aspect of human behavior through the abuse of the power to tax.
Justice Marshall was completely right; in this case, the power to tax has completely destroyed the right of free choice.

Brian Baker is a resident of Saugus.


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