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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. RECEIVE LIBERTY LOVING COLUMNISTS IN YOUR INBOX … FOR FREE! Every weekday NewsAndOpinion.com publishes what many in the media and Washington consider "must-reading". HUNDREDS of columnists and cartoonists regularly appear. Sign up for the daily update. It's free. Just click here. 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. 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