The Power to Destroy

04 July 2012   Senator Jon Kyl
The concern about the Supreme Court decision.

Last week, the Supreme Court delivered its long-awaited ruling on the constitutionality of the president’s health law. Importantly, the Court rejected the administration’s claim that Congress may use its powers under the Commerce Clause – traditionally reserved for regulating the sale of goods between states – to compel all American citizens to purchase government-defined health insurance.

The Court, however, found a different basis for upholding the law’s mandate requiring individuals to purchase insurance: Congress’s power to “lay and collect Taxes.” This despite the fact that the statute itself does not refer to the mandate as a “tax” and the president had adamantly denied it was a “tax.” Therefore, whether they want it or not, Americans will be compelled to either purchase government-defined health insurance or pay a “tax” to the IRS.

The Supreme Court’s opinion is concerning for several reasons.

First, Congress can now tax an individual for choosing not to purchase something, in this case, health insurance. In the Court’s majority opinion, Chief Justice Roberts wrote that the mandate “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” Under this reasoning, the government can make you pay a tax if you buy gas and make you pay a tax if you don’t buy gas.

As we celebrate our independence this July 4, maybe we should reflect on just how far we have strayed from the first July 4, in 1776. Independence from an out-of-touch and stifling government was the objective. Sound familiar?

If Congress can simply circumvent constitutional limitations on its powers by calling a mandate to act in a certain way a “tax,” the government is effectively unfettered in its ability to shape the behavior of Americans through the threat of taxation.

All Americans are now subject to the “Obamatax.” Impartial scorekeepers in the Congressional Budget Office have confirmed the middle income families will be hit hardest; this is compounded with the 21 other tax hikes in the health law, estimated to top $800 billion. At this time of anemic economic growth, it makes little sense to burden the American people – many of whom are job creators – by taking more of their hard-earned income for new government spending.

In reality, it hardly matters to American citizens that the requirement to buy government-defined insurance cannot be justified under the Commerce Clause as long as it can be justified as a “tax.” However, it is troubling that the American people were sold a bill of goods under the promise that their taxes would not go up. Now, we know that’s not true.

Chief Justice Marshall warned long ago that “[the] power to tax involves the power to destroy.” Last week’s Supreme Court decision was certainly a stark reminder of this power. Now, the only option to avoid the destructive consequences of this law is for the American people themselves to overturn ObamaCare by the choices they make in November’s election. The people must now decide if this so-called “tax” will stand. Remember 1776.

Sen. Jon Kyl is the Senate Republican Whip and serves on the Senate Finance and Judiciary committees.

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