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December 2, 2014

Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review July 3, 2012/ 13 Tamuz, 5772

A Vast New Federal Power

By Judge Andrew P. Napolitano



http://www.JewishWorldReview.com | If you drive a car, I'll tax the street,

If you try to sit, I'll tax your seat.

If you get too cold, I'll tax the heat,

If you take a walk, I'll tax your feet.

— The Beatles in "The Taxman"

Of the 17 lawyers who have served as chief justice of the United States, John Marshall — the fourth chief justice — has come to be known as the "Great Chief Justice." The folks who have given him that title are the progressives who have largely written the history we are taught in government schools. They revere him because he is the intellectual progenitor of federal power.

Marshall's opinions over a 34-year period during the nation's infancy — expanding federal power at the expense of personal freedom and the sovereignty of the states — set a pattern for federal control of our lives and actually invited Congress to regulate areas of human behavior nowhere mentioned in the Constitution. He was Thomas Jefferson's cousin, but they rarely spoke. No chief justice in history has so pronouncedly and creatively offered the feds power on a platter as he.

Now he has a rival.

No one can know the true motivations for the idiosyncratic rationale in the health care decision written by Marshall's current successor, John Roberts. Often five member majorities on the court are fragile, and bizarre compromises are necessary in order to keep a five-member majority from becoming a four-member minority. Perhaps Chief Justice Roberts really means what he wrote — that congressional power to tax is without constitutional limit — and his opinion is a faithful reflection of that view, without a political or legal or intra-court agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of Marshall's big government aphorisms: The power to tax is the power to destroy.



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The reasoning underlying the 5 to 4 majority opinion is the court's unprecedented pronouncement that Congress' power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the IRS from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility — all of which the statute says it is — but rather is an inducement in the form of a tax.

The majority likened this tax to the federal taxes on tobacco and gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving. The statute is more than 2,400 pages in length, and it establishes the federal micromanagement of about 16 percent of the national economy. And the court justified it constitutionally by calling it a tax.

A 7 to 2 majority (which excluded two of the progressive justices who joined the chief in rewriting tax law and included the four dissenting justices who would have invalidated the entire statute as beyond the constitutional power of Congress) held that while Congress can regulate commerce, it cannot compel one to engage in commerce. The same majority ruled that Congress cannot force the states to expand Medicaid by establishing state insurance exchanges. It held that the congressional command to establish the exchanges combined with the congressional threat to withhold all Medicaid funds — not just those involved with the exchanges — for failure to establish them would be so harmful to the financial stability of state governments as to be tantamount to an assault on state sovereignty. This leaves the exchanges in limbo, and it is the first judicial recognition that state sovereignty is apparently at the tender mercies of the financial largesse of Congress.

The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law's most fervent supporters did not make or anticipate the court's argument in its support. Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing. In all the history of the court, it never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.

I wonder whether the chief justice realizes what he and the progressive wing of the court have done to our freedom. If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.

Even The Beatles understood this.

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Your comments are appreciated. Please send them by clicking here.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network.



Previously:


06/28/12 Restraining Arizona, Unleashing the President
06/21/12 Can the President Rewrite Federal Law?
06/15/12 Squealing Versus Killing
06/07/12 Where Is The Outrage?
05/31/12 The Secret Kill List
05/24/12 What If We Have Only Memories of Freedom?
05/17/12 Is There a Drone in Your Backyard?
05/10/12 What Constitutes a Fair Trial?
05/03/12 The President's Private War
04/26/12 Rick Perry Was Correct
04/19/12 A Government of Waste
04/12/12 What If the Government Rejects the Constitution?
03/29/12 Can the Government Force You To Eat Broccoli?
03/22/12 Is the CIA in Your Kitchen?
03/15/12 Can the Secret Service Tell You To Shut Up?
03/08/12 Can the President Kill You?
02/23/12 What If Democracy Is Bunk?
02/16/12 Time To Tame the Federal Beast
02/09/12 Do Catholics Have Too Many Babies?
02/02/12 What Is a Just War?
01/25/12 A Few Words About Abortion
01/20/12 How Much Economic Freedom Do We Have in the United States?
01/12/12 What If Elections Don't Matter?
01/05/12 Big Government Cannot Pay Its Bills, Again
12/29/11 The Case for Austerity
12/22/11 New Ideas or Fidelity to Old Principles?
12/15/11 The Government as Lawbreaker, Again
12/08/11 What if our rights didn't come from the Almighty or from our humanity, but from the government?
12/01/11 Can Congress Steal Your Constitutional Freedoms?
11/24/11 What if the Constitution No Longer Applied?
11/17/11 Congress and Secrecy
11/10/11 Does the Government Work for Us, or Do We Work for the Government?
11/03/11 Look at What the Government Has Done with Your Money
10/27/11 What Have the Wars Done for You?
10/20/11 Is Freedom in America a Myth or a Reality?


© 2012, ANDREW P. NAPOLITANO

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