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ObamaCare Ruling Wakes a Sleeping Giant

Chief Justice John Roberts’s position in the “ObamaCare” ruling took almost everyone by surprise. Widely recognized as a conservative justice appointed by George W. Bush, few could have predicted that he would side with the more liberal wing of the court in upholding the “individual mandate.” To be clear, the mandate failed to reach majority support under the power of the frequently debated commerce clause, but did pass the constitutional litmus test as a tax.  Media outlets declared this a big win for the president, and conservatives were left struggling for an explanation and a plan. Yet with a slight of hand, John Roberts may have actually limited government and awoken a sleeping giant for the conservative cause. It was initially easy to overlook the narrowing of the commerce clauseand restraints on federal attempts to bully states into compliance with financial threats. Score two for federalism and enumerated powers. But more importantly, Roberts has sent the message to the American people that we have been worrying about the wrong thing decade after decade: It is not the commerce clause we should be afraid of; we must turn our attention to Congress’s monstrous, unlimited and largely inconspicuous taxing power. Everyone knows that our tax system is complicated. For most people, however, this amounts to an inconvenience. A percentage comes out of our paychecks, we pay a little extra on things we buy, then once every year we file with the IRS and hope for a return. Anyone who owns a business encounters significantly more hassle, to the point that it is often growth-prohibitive. This means people not hired and wealth not created. But the real disturbance lies in the way in which the government abuses its taxing powers to distribute favors and punishments. The ability to establish different levels of taxes for different people and products enables Congress to effectively regulate without actually regulating. Congress uses tax policy as levers for altering our markets and behavior, simply creating new levers when desired. The wonderful thing about tax policy is that no one pays attention if you take a little here and add a little there. Thus, taxes are an invisible regulatory device—an unlimited tool for extracting funds and coercing behavior in every area of our lives. In 1913, the federal tax code was around 400 pages long, where it remained relatively unchanged for 30 years. After the New Deal and WWII, it had swollen to 8,200 pages. By the end of Nixon’s presidency, it was over 19,000 pages. It is almost inconceivable to imagine what might require 19,000 pages, but I long for such a concise code—today the page number sits at around 72,000! What will it be after ObamaCare? What the Roberts Court did, in the process of allowing the law to stand and retaining the court’s impartial image, was reframe the issue as a problem not only of overreaching powers, but also one very abused power. The majority opinion spoke loud and clear: Congress can, will, and in fact has been regulating your personal life through its obstacle course of taxes. If Congress is to be limited, we must go after the taxing power. The Constitution established a power to “lay and collect taxes,” but only allowed direct taxes on the condition of proportionality. The 16th Amendment was passed in 1913 to allow Congress to “lay and collect taxes on incomes, from whatever source derived, without apportionment…” thereby opening the door to unlimited taxation and changing American citizens’ relationship with their government forever. In order to reign in the powers of the federal government and preserve individual economic liberties, we must target tax reform as our most important domestic issue. One solution is to either eliminate direct income taxes by repealing the 16th Amendment, or establish a flat tax rate across all citizens and provide a single exception to the very poor. This would also need to be combined with standard rates for goods and services.Since I am not an economist and this is not a research paper, I am merely laying the principle framework. The details must be hammered out by folks at organizations like the American Enterprise Institute, where scholars recently suggested replacing the income tax with an “X” tax—a progressive consumption tax that encourages savings and investment. Benjamin Franklin is attributed with predicting that “When the people find they can vote themselves money, that will herald the end of the republic.” On the other hand, preventing them from doing so would require a revocation of political franchise, which would also end the republic. While conservative political leaders are understandably calling for a full repeal of the Affordable Care Act,there is a much greater need for a constitutional amendment limiting the taxing powers of the federal government, combined with a sensible and sustainable tax code. This is a “Contract With America” that is capable of gaining real support.