Over at the Independent Institute’s blog, the Beacon, Melancton Smith worries about SCOTUS’s ruling and how it will be viewed by tax-hungry politicians:
Roberts is correct that Congress often uses the taxing power to influence conduct, but all the examples that he gives (taxes on imported goods, cigarette taxes, etc.), focus on discouraging conduct not compelling conduct. He cites no example of where Congress taxes someone for not doing something. I realize that this is a fine distinction I am making, but in my view Congress does more violence to the dignity of the individual by taxing him for not buying insurance than taxing him for buying a pack of smokes.
Yes, the taxing power is not equal to the full regulatory power of the government brought on by use of the Commerce Clause, but I fear that the Court has given power hungry legislators a road map of how to augment federal power using the tax power.
Yes, it’s true that the ruling on ObamaCare has given legislators a clear path to using the tax power, but this is precisely why the ruling is going to be good for federalism in the long run. Americans are notoriously stubborn when it comes to taxes (and I wouldn’t have it any other way baby!) and this new ruling is essentially forcing legislators to tax people directly rather than in the roundabout way (through the Commerce Clause) that has been done since the fascistic New Deal-era.
This is, overall, a very good development, and if my suspicions about Roberts’s plan of patchwork federalism are correct, then this ruling may turn out to be a blessing in disguise. Remember, ObamaCare is technically a tax now (though it has always been a tax, but I digress), a term Democrats wished to avoid in the legislation process, and the Democrats are going to have to come to terms with this during the upcoming election. In the future, too, it looks as if politicians are going to have to start framing their pet projects in terms of taxation rather than regulation through the Commerce Clause thanks to the arguments put forth by the conservative and libertarian lawyers on this case.
Again, I would have rather seen this whole thing thrown out, but this is a Pyrrhic victory for the Left.
Addendum: Tyler Cowen’s take on ObamaCare.
Ezra Klein’s take (very good).