Misinterpretation of Congress’ power to tax

On Jan. 7, Professor John H. Minan wrote about the future of health care coverage in a column titled, "If ruling stands, millions could lose health care coverage." The professor discusses District Judge Reed O'Connor's finding that, as a result of the individual mandated tax's being repealed by Tax Cuts and Jobs Act of 2017, the whole Patient Protection and Affordable Care Act requires dismantling. Professor Minan makes no mention of the ACA's being enacted by Democrats, while the new tax law is a Republican enactment.

The article is well-written and follows logically to the conclusion that the issue of severability remains to determine whether the ACA can survive without the mandatory tax. Professor Minan quite properly adds that the U.S. Supreme Court has already held that the ACA cannot be supported by the commerce clause as such authority was held to be unconstitutional.

The article begins by quoting Article I, Section 8, to the effect that Congress is granted a number of enumerated powers, to include the power to "lay and collect taxes" and to "regulate commerce between the several states." It goes on to describe, with approval, the method by which the Supreme Court found constitutional the mandatory tax for choosing to have no insurance.

The Supreme Court found congressional authority under Article I, Section 8, Clause 1, the power to tax. However, in doing so, both the Supreme Court and Professor Minan misconstrue the intended meaning of said clause. The anti-constitutionalist's view is that Congress has carte blanche to do whatever it decides is "good" for the country and to levy a tax to pay for it.

The intended meaning of the clause was a matter of some discussion by one of our greatest Founding Fathers, Thomas Jefferson. He had this to say about Article 1, Section 8, Clause 1:

"I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."

"To lay taxes to provide for the general welfare of the United States, that is to say, 'to lay taxes for the purpose of providing for the general welfare.' For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

"It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please."

Professor Minan, in employing his serial syllogisms, has ignored the true meaning of Article I, Section 8, Clause 1 as defined by Jefferson. Applying Jefferson's most-logical definition leads to the conclusion that ACA had and has absolutely no constitutional basis and hence must be allowed to be effectively repealed as held by Judge O'Connor.

Perhaps with the new blood on the Supreme Court, at long last, our Founder's views, to include Jefferson's views, will be given the attention they deserve.