Today’s opinion of a majority of the Supreme Court in the case of King v. Burwell upholds subsidies to participants in federally established Obamacare exchanges despite the plain language of the Affordable Care Act. In the words of Justice Scalia, whose dissent was joined by Justices Alito and Thomas,
this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State”means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
And I most vehemently dissent.
Today’s decision is a painful reminder of three posts that I published in December 2010: “The Unconstitutionality of the Individual Mandate,” “Does the Power to Tax Give Congress Unlimited Power?,” and “Does Congress Have the Power to Regulate Inactivity?.” The posts appeared 18 months before Chief Justice Roberts’s twisted logic in NFIB v. Sebelius upheld the Affordable Care Act’s individual mandate by calling it a tax.
In the second of the three posts listed above, I argued that the power to tax is not unlimited. Taxes levied by the central government must be levied for the purpose of executing powers specifically enumerated in Article I, Section 8 of the Constitution. Nevertheless, the majority NFIB v. Sebelius chose not only to distort the individual mandate — which is clearly a penalty, not a tax — but also to willfully disregard the Constitution’s expressed limitations on the powers of Congress. Even if the individual mandate were a tax, Congress cannot constitutionally levy such a tax because the Affordable Care Act isn’t contemplated in its enumerated powers. (ACA derives its supposedly constitutional status from the Court’s decision in 1935 to declare the Social Security Act constitutional, even though it isn’t. See my post of October 31, 2004, “Social Security Is Unconstitutional.”)
In the first edition of this post, I cited James Madison and linked to “The Unconstitutionality of the Individual Mandate,” where I cite many more. But I neglected Henry St. George Tucker III, who in a speech given at a meeting of the Georgia Bar Association in June 1927 put paid to the notion that Congress’s power to tax is unlimited in scope. The speech, “Judge Story’s Position on the So-Called General Welfare Clause,” is quite long, and deserving of quotation at length. (The links are mine, of course):
The words “the general welfare” are to be found in two places in the Constitution—in the preamble thereto and in Article 1, section 8, clause 1. All reputable writers concur in the statement that the words of the preamble to the Constitution constitute no grants of power, and therefore our investigation is confined to the words as found in Article 1, section 8, clause 1. which reads,
“The Congress shall have power lo lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States but all duties, imposts, and excises shall be uniform throughout the United States.” …
Hamilton’s fight in the Convention [of 1787] was to give to Congress unlimited power. Pinckney’s plan prescribed definite powers to Congress. This was the struggle of the Convention, and while Hamilton’s plan, on this clause, was practically voted down six times in the Convention, either directly or by voting up a distinct opposing proposition, his followers have struggled to show that the words “the general welfare” put into clause 1, section 8, Article 1. really mean what was specifically rejected by the Convention six times….
The argument of Judge Story (contained in sections 909 and 910) which demolishes the theory of the Hamiltonians, shows conclusively that the words “the common defense and general welfare,” as found in [Article I, section 8], constitute no substantive grant of power; and he further denies that these words contain any power whatsoever. His argument is irresistible in its conclusion to any unbiased mind, but it furnishes an equally powerful argument against his claim that the words “to provide for the common defense and general welfare” are merely words of limitation on the taxing power, for his argument for the latter claim is based upon the relationship of those words solely to the first clause of section 8, and excludes their relationship to the other seventeen distinct clauses in that sentence. He would thus exclude these words “common defense and general welfare” from any participation in the construction of the whole sentence. How can that consist with his language in sections 909 and 910?…
…[T]he framers of the Constitution left this matter in no doubt, for the eighteenth clause of this section 8, after enumerating one by one seventeen grants of power, reads:
“The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing posters, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
This coefficient clause therefore constitutes the constitutional limitation on the taxing power of Congress; but any law passed by Congress to carry out an express grant must be necessary and bona fide appropriate to the end. So Congress, desiring to carry out some regulation of commerce that requires an appropriation, may by law appropriate money for it under this coefficient clause, for the end is legitimate and the appropriation is bona fide appropriate to the end. So as to every other grant of power to Congress that may require money….
The proposition of Mr. Hamilton would have given Congress unlimited power to create receptacles and then fill them up with appropriations from the treasury. Judge Story stoutly denies such power as intended to be given in the Constitution, but claims the power in Congress to appropriate money to any persons, associations, or corporations if in their opinion it would conduce to the general welfare of the people. Under this view the courts are without power to obstruct any such measure, as it is to be left to Congress alone to determine, and not the courts. Judge Story denies that the Hamiltonian claim could be sound because it would make of the Government one of unlimited powers, which he says, as we have seen, was never intended by the Convention; but if Congress is without restraint in selecting objects of appropriation, and the tax power is likewise unlimited, is it not apparent that the union of these two unlimited powers in Congress creates a government of unlimited power? The roads may be different that lead to the same end, but it the end, a government of unlimited power, which Judge Story well says, was never intended be the same, his construction must be rejected, as it leads inevitably to the same result, if not to a worse result….
Judge Story’s conclusion that these words “common defense and general welfare” are simply a limitation upon the taxing power of the Government, while denying to them any constructive power, results in this anomalous condition, that the Federal Government, under these words, can construct or create no instrumentality unless the power be granted in the Constitution, but may yet appropriate the money raised by taxation to such organization constructed by the States or other power; that is, that while the Congress could not create a university in every State, it would have the power, if in its opinion it was for the “general welfare” to appropriate money to run them after being established by the States….
If Judge Story’s interpretation of this clause be admitted, namely that these words are merely limitations on the taxing power of Congress, the real difficulty is still left unsolved, for he assumes, once it is granted that they are merely words of limitation on the taxing power, that Congress is clothed with the power of determining what is the common defense and general welfare. But this is mere assumption. If no definition or description of these words is found in the Constitution, and if the Constitution failed to give their meaning, there might be some reason to adopt his suggestion; but if there be a reasonable construction of the Constitution defining these words, why should that reasonable construction be set aside to give to Congress an unlimited control over the whole Government, which Judge Story has so eloquently decried? What is the common defense? What is the general welfare of the United States, Who is to determine this common defense and general welfare? What authority, under the Constitution, has the power to say what objects come within these two terms’ If taxation can be had legitimately to meet the demands of these two extensive terms where shall taxation end? What are its limits? If the objects to which taxation can be applied are unlimited, then the union of the power of taxation with the power of determining the objects to which it may be applied constitute the most tremendous engine of oppression of a free people every [sic] conceived of by the ingenuity of man. Yet, Judge Story assumes that Congress has the power to determine what is the common defense and what is the general welfare of the United States, and that when Congress has determined that a certain object is for the common defense or the general welfare, it may appropriate the tax money which it is authorized to levy, for that purpose. This unites in Congress two great powers, dangerous because unlimited, the one to select the objects of its favor, and the other the power to appropriate money from the treasury for such objects. The unlimited power to tax and the unlimited power to determine their benefactions, are, by Judge Story, united in the Congress, and yet Judge Story (Section 909) affirms that this Government was intended to be a government of limited powers only. The relief from this illogical impasse, into which the learned Judge would drive us, is found in the simple examination of Article I, section 8, clause 1, and the seventeen succeeding clauses, constituting the whole sentence. The manner in which this Article was considered and adopted in the Convention, the care with which each grant was discussed and adopted, constituting the limitations on the powers of Congress, show conclusively that no one power, which could submerge all other powers, was ever intended by the framers of the Constitution….
…Three times in two days, on the 22nd and 2srd of August , the Convention indorsed a resolution of this nature: That the Congress should “fulfill the engagements and discharge the debts of the United States”. What engagements had the United States? They are chiefly specified in the eighteen specific grants in the Pinckney plan finally adopted August 16th. Do not the words “fulfill the engagements” interpret the meaning of “common defense and general welfare”? Are not those the only engagements of the Government Of the United States? Undoubtedly, having determined for the honor of their country that there should be an express provision to pay the debts some other words would have to be supplied to save to the Congress the right to carry out the grants of power to Congress thereinafter enumerated, and to show that its power to appropriate money was not confined alone to the payment of the debts. What should these additional words be? They selected these words: “To provide for the common defense and general welfare” as they embraced all the subsequent [enumerated] grants of power which the Convention had already determined should constitute that amount of common defense and of general welfare which the Federal Government ought to control; and being merely words of general import and without power in the Articles of Confederation from which they came, brought with them to the Constitution of the United States the same innocuous character [emphasis added]….
Thus we find in our conclusion that there is no general welfare clause in the Constitution; that the power of Congress to legislate for every object which in their opinion might be for the benefit of the people, pressed by Mr. Hamilton in the Convention, was six times, directly or indirectly, rejected by that body; and, in spite of that, his followers have sought to construe these words as meaning what the authors of the Constitution had six times successively rejected….
Congress, various presidents, and the Supreme Court have subsequently undone the work of the Framers, most recently on June 24, 2015, in King v. Burwell. The Constitution has become a hollow shell into which the proponents of dictatorial government may pour any meaning that advances their dictatorial whims.
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