Analysis: Congress’ power to tax still a contentious issue

By Len Lazarick
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Chief Justice John Roberts’ opinion that the penalty for not buying health insurance in the Affordable Care Act is a tax helped spike a revival of the old chestnut: “The power to tax is the power to destroy.”

It was also a reminder that the power of Congress to directly tax the citizenry was one of the most hotly debated provisions of the new Constitution as the states considered whether to ratify it back in 1787 and 1788.

“The power to tax is the power to destroy” is a slightly condensed version of a sentence in the opinion of another chief justice in another landmark case in 1819: John Marshall in McCulloch v. Maryland. “That the power to tax involves the power to destroy … [is] not to be denied,” said Chief Justice Marshall in his ruling that the Maryland General Assembly did not have the power to tax the Second Bank of the United States. If it did so, it could put the bank out of business.

Marshall picked up the phrase from Daniel Webster’s pleadings in the case: “An unlimited power to tax involves, necessarily, a power to destroy.”

The ruling by Marshall, an ardent federalist supporting a strong central government, established limits on powers of the states in deference to the federal Congress. It was a ruling so fundamental to the Supreme Court’s interpretation of federal power that Roberts refers to it several times in the opening pages of the health care decision.

“Nearly two centuries ago, Chief Justice Marshall observed that ‘the question respecting the extent of the powers actually granted’ to the Federal Government ‘is perpetually arising, and will probably continue to arise, as long as our system shall exist,’ ” Roberts said (page 2).

Taxing power of Congress controversial from the start

Foes of Obamacare – a nickname that has grown less pejorative over time — would certainly agree about the power of taxes to destroy.

According to historian Pauline Maier’s 2010 book “Ratification,” the power of Congress to tax the people directly was one of the features most objected to by opponents of a strong central government of the United States – dubbed anti-federalists.  These opponents fought the Revolutionary War over taxation without representation, among other key issues. The topic was fresh in the minds of the thousands of delegates who came together in the 13 state ratifying conventions.

The power to tax directly was a key federal power in the new Constitution. It replaced the limited power of Congress under the Articles of Confederation to raise the funds it needed to run a national government by requisitioning the states for money. The states often didn’t comply, or they didn’t comply in a timely manner, leaving the United States government with bills unpaid, including its debt from the Revolutionary War.

The power to tax directly was essential to the survival of the central government, argued the supporters of the new Constitution, such as George Washington and James Madison.

As Maier relates, the federalists prevailed, a stronger central government was created, and even those who wanted the Constitution changed significantly came together after ratification to support it and give the new government a chance.

Other issues were controversial as well

What’s especially interesting about the Maier book is that many of the issues about how the federal government operates today were matters of concern and debate as the new Constitution was being reviewed: the power to tax; the powers of the federal courts; the long terms for senators; the powers of the president; the lack of term limits. The revolutionaries who had rebelled against the overreaching powers of a distant king and parliament were worried that the new government would take on some of those same bad features.

Some delegates to the state ratifying conventions were particularly concerned that representatives sitting in some distant capital far removed from their constituents would impose taxes that the people could not bear. Long before the proverb was institutionalized by a Supreme Court ruling, they knew the power to tax is the power to destroy.

It is not surprising that Tea Party conservatives objecting to a federal mandate to purchase health insurance trace their ideological heritage back to the Founding Fathers – albeit the ones who lost the debate over the taxing powers of Congress.

Hard to say what, if anything, may survive two centuries from Chief Justice Roberts’ opinion. But two of the more memorable lines are these:

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders,” he says on page 2. “It is not our job to protect the people from the consequences of their political choices.” (page 6)

Elections have consequences. The ultimate fate of the Patient Protection and Affordable Care Act is now left up to the people to decide.