After I posted this quote from Randy Barnett last night, a reader asks:
Would you mind explaining the implications of the quotation you just posted about Roberts’ reading of the tax power with regard to drug laws?
Sure. What Barnett was trying to get people to think about is whether there’s a meaningful distinction between the power to regulate economic activity under the Commerce Clause, and the power to regulate economic activity under Congress’s taxing power, flowing from Art. I, §§ 2, 8, 9, and Amendment XVI. Roberts’ tax analysis in the recent healthcare decision seemed to imply that validating the Mandate under Congress’s taxing power places meaningful limits on how Congress may regulate “inactivity.” Here are the operative paragraphs of Roberts’ opinion:
Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority … More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. [citations omitted]. We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” [citation omitted].
[A]lthough the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.
What Barnett is doing, I suspect, is slyly referencing the Marihuana Tax Act of 1937, in which Congress essentially pulled a rather insidious two-step: first, they made it illegal to sell marijuana without paying a tax, for which one would receive a validating stamp indicating the tax had been paid. But then the government would, in some cases, arbitrarily refuse to issue the stamps. Also, the tax itself was prohibitively high ($100 per pound of hemp), meaning many manufacturers either stopped selling, or just disregarded the tax altogether. Unfortunately, in the latter case, this subjected them to harsh criminal penalties, including upwards of four years in prison. In other words, Congress used its taxing power to create a statute that effectively operated as a criminal prohibition. The limited taxing power described by Roberts arguably opens a back door to the sort of harsh sanctions that Roberts claims aren’t available under the tax provisions of the Constitution.
It’s a strong argument, and one I respect Barnett for making (assuming that was actually his intent). Yet from a broader angle, my disagreement with Barnett, and other critics of the Mandate, remains the fact that I think they’ve misconstrued bad policy with unconstitutional policy. Congress can make terrible, even catastrophic laws that would pass Constitutional muster. The Constitution, for better or worse, does not say “Congress shall pass no law which is really, really bad.” Americans are in virulent disagreement as to what that even means, given the fact that some people think the Affordable Care Act is the Second Coming, while others think it has hearkened the opening of the Seventh Seal.
All of this notwithstanding: Barnett deserves credit for making the observation. It’s not hard to conceive of a way in which Congress could use its taxing power, as interpreted by Roberts, in a way that is more oppressive than Roberts claims it can be used. Whether that will actually happen, or whether a future Court would in fact strike it down, remains to be seen.