National Federation of Independent Businesses v. Sibelius, Redux

The above-titled case, aka the Supreme Court's Obamacare decision, was at its heart deceitful. Flatly disingenuous. Based on false statements and a knowingly inaccurate characterization of the Obamacare legislation, perpetrated by the Chief Justice and his supporters on the Court in that decision. Even the dissenters elided the crux of the deceit.

Roberts had before him a brief by the Cato Institute detailing the problem: Congress did not have the power to pass the legislation as written, specifically the Obamacare penalty, as it violated the 16th Amendment.

The 16th Amendment allows Congress to tax income from whatever source. It does not allow Congress to impose a direct tax that is not on income. The Obamacare penalty, at least for some, was not based on income. It applied as a set amount regardless of income. If one's income happened to be high enough, the penalty shifted to the greater of 2.5% of income or the set amount of $695 that had no relation to income.

As Roberts set about noting that the amount was called a penalty under Obamacare, it was collected by the IRS via tax returns and, in the Court's view, was not sufficiently high to constitute a "penalty." Individuals, they reasoned, could choose to pay the penalty and forego the insurance coverage. It was characterized as an attempt to balance the share of costs for those who chose not to obtain insurance, as if there were anything fair or reasonable about that.

At any rate, the penalty, called a tax when convenient and a penalty when otherwise, was ruled a tax and constitutional. However, nowhere in the majority opinion (nor in dissent) was the fact discussed that the penalty was, at least for some, not a tax on income at all, and thus violated the 16th Amendment along with the original constitutional provision that no direct tax could be imposed except for a capitated tax collected from the states.

That penalty, although set to zero by subsequent Congresses, is still on the books, and the Supreme Court opinion upholding the penalty as a tax, not on income, rules. The Supreme Court, dishonestly, without explanation whatsoever, has removed any limit on Congress's taxing power. Congress can tax anything, whether based on income or not.

A further erosion of limits on federal taxing power came with Kavanaugh's opinion in Moore, which went even further. The tax involved was a retroactive tax on unrealized capital gains. Consider the implications: Congress can tax unrealized gains (nothing to do with actual income), even retroactively.

Between these two decisions, there is no limit whatsoever on Congressional taxing power. Thus, Sen. Warren's ongoing calls for a wealth tax have nothing standing between her proposal and sufficient votes in Congress to enact it.

The Cato Institute warned that if the SCOTUS allowed the Obamacare tax, a federalist republic with limited federal power would be gone. They were too late, since the Sixteenth Amendment effected this result a hundred and thirteen years ago.

Anyone who thinks we live in a federalist republic with limited government is deluded, and the nation is in every bit as much of a mass delusion regarding federal taxing power as Buck Sexton says we were with COVID.

Until such time as the 16th Amendment is repealed, we are living in a Marxist totalitarian state. We have only a rump federalist system. That has been so for over a century, but the threat of all-encompassing federal control is more dire now than it has ever been. Democrats have announced that they are at war full-time, all the time, against the Constitution to implement their vision of a totaliltarian state, and will stop at nothing to achieve that goal.

Clarence Thomas is exactly correct that progressivism and the Constitution cannot both survive. Either we will recover Constitutional government, or we will, for all time, be swallowed up by an all-powerful Progressive State.

I would suggest that all those who consider themselves conservative or libertarian, or anything other than progressive, and who are in a position to do so (from Richard Epstein to Stephen Hayes to Charles C.W. Cooke, to Ben Shapiro, to Grover Norquist, to the Cato Institute, to the the Manhattan Institute, to our Republican leadership--although many if not most elected Republicans are Progressives and always have been) devote themselves fully to removing the financial basis of the ever-expanding progressive state—namely, the unlimited power to directly tax citizens.

The return to Constitutional limits on taxation, to duties, imposts, excises and tariffs, with a direct tax only as a capitated tax collected from the states. To refuse to engage in such an effort is an acknowledgement of concurrence with the Leviathan. It signifies the abandonment of the nation to tyranny. I would plead with the Republican House to consider legislation to present a constitutional amendment to repeal the 16th Amendment as the first step toward dismantling the Progressive State.

And, yes, I know. The answer to my plea is blowing in the wind.