Amendment XVI

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Your characterization –

The whole point of the 16th Amendment was to overcome the need to impose an income tax without apportionment. Specifically, it was a reaction to the SC’s ruling in Pollock. It was a technical update for one specific purpose.

There is nothing in this amendment to suggest limits of the sort you surmise. The 16th Amendment postdates Article I by well over a century and it stands completely on its own text. Prior to Pollock, income was considered to be excise, ie “event” taxes. Pollock declared them to be direct taxes. If what you say about “one specific purpose” were true, the amendment would read:

All incomes, from whatever source derived, are subject to excise.

Excise taxes being ‘event’ taxes, and receipt of income being an ‘event’, this would have been the perfect construction (and was the prior law) if the purpose of the amendment was as you surmise. This would have amounted to letting the Springer ruling stand. But the “excise” solution would have achieved exactly the punitive taxing power that you are now arguing is not present in the 16th amendment. In other words, you are attributing additional taxing limits to the 16th amendment that were not present prior to Pollock. But these limits you surmise are not present in the text.

Whether by duplicity, error, or intent, the 16th amendment creates a brand new tax limited only in that it must be levied on “income”. I dont think this is without some intent. This is a Progressive amendment to serve the progressive social engineering purpose. It needs to be repealed in toto all though that will need to be a phased process to prevent a complete economic collapse.

You are wrong about the 16th Amendment for the Nth time. Repeating a falsehood over and over does not make it true. The source of Congress’s taxing power is Article I, Section 8. The 16th Amendment merely took away the need for apportionment.

For what I believe is far better commentary on the ACA ruling, head over to volokh.com and read Ilya Somin’s pieces.

Roberts’ decision made bad law in two respects. First, he claimed the power to rewrite a law by giving it a “saving construction” to uphold it, after he admitted that this was not the best reading of what the law actually said.

I could be very wrong on this and lawyers here may tell me so, but, by asking the Court to consider the tax option if all else fails, the Government essentially submitted to the Court two distinct laws: one where the individual mandate is a penalty, the other where it is a tax. So saying that the Court ‘rewrote the law’ is quite a bit of a stretch. The court did not give the law a “saving construction”, it came to the Court with the saving construction attached to it.

Second, he allowed that Congress may impose an unprecedented tax on inactivity, provided that it is low enough to preserve the tax payer’s “choice” to obey or pay.

For the Nth time: the 16th clearly already gives the Congress that kind of power.

I feel obliged to respond because you remain shrill and strident and wrong. You address not a single one of my points, shriek about my alleged ignorance, and incorrectly attribute to me intentions and beliefs that I do not hold nor have advocated. Talk about projection. It is you throwing bs against the wall, conflating issues, and making unsupported assertions. You are guilty of every sin you accuse me of committing. I realize it must be upsetting that your original post and subsequent comments have convinced very few of your position.

I have read Glenshaw and the Sebelius rulings as well as the dissent in Sebelius. I understand them, but apparently you don’t. Is there a majority knockdown of the Commerce and N&P Clauses? Do the other four justices concur on this point? It is not clear. Not at all. If you don’t understand why I say that, then I suspect you have not read the ruling, or at least not very closely. Look where Ginsburg, Breyer, at al. actually concur and where they do not.

I cite Glenshaw quite correctly. The main point of Glenshaw is that income taxes could be levied on “accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” Sebelius is not a simple application of that understanding. It is a significant expansion. The fine/penalty/tax imposed by the mandate does not target any accession to wealth or flow of income. It simply forces individuals to pay a penalty if they disobey the federal government’s regulatory requirement. The fact that low-income individuals are exempted does not change this analysis. A fine for littering on federal property would not become an income tax if low-income individuals were exempted from it.

You wrote:

The 16th Amendment power to selectively tax anybody’s income for any reason (or even no reason) can only be ended by repeal unless, as is obviously your intent, we throw out the Constitution and ‘judge’ all decisions for ‘our’ side.

Holy cr*p – are you kidding? The 16th Amendment does no such thing, or at least no serious person ever argued that. According to your theory, the Congress could do anything for any reason as long as it is a tax (or could be possibly construed as a tax) related to a seemingly perfectly elastic definition of income. Your own assertion refutes your entire original thesis, that the Sebelius ruling was a victory for limited government. If Congress effectively can do anything by virtue of the 16th Amendment, then what difference would it make if the Commerce and N&P Clauses aren’t infinitely malleable?

I note that you refused to answer my questions from my prior post, so I suspect you’ll not answer my questions in this post either. That’s fine. I’m not interested in reading anything else from you as your record suggests you offer no insight or knowledge, only superficial spite and pathetic critiques unrelated to what people actually write. I can see now a clear pattern in your comments that as soon as someone makes a legitimate point(s) that you can’t refute, you ignore the arguments and throw a tantrum.

You have tried to be clever, but ended up only proving you’re just not very smart.

the ACA tax is not applied to income, it is applied to inactivity.

Wrong yet again. And silly beside. It is applied to income for inactivity. I realize that distinction may confuse you but understanding it is elementary semantics. The 16th Amendment power to selectively tax anybody’s income for any reason (or even no reason) can only be ended by repeal unless, as is obviously your intent, we throw out the Constitution and ‘judge’ all decisions for ‘our’ side. Thomas More had the correct answer to that call.

No, they did not write it to do more than sold. I agree it has been used subsequently to do more. That’s not the same thing, nor is it the salient point. As I noted previously, if the SC says something is constitutional, then by definition it is constitutional. That does not mean it expands liberty or limits government.

You wrote originally:

The clear and unequivocal statement that will ring longest from this decision is that there really are limits on what the Federal government may do. To this Court, the Constitution really does appear to mean something.

It is not clear and unequivocal that the ruling does anything of the kind. What limits did it set? To the extent that it set any, did it expand others at the same time? Is the net balance towards limit or to expansion?

It also is not clear that the four liberals who voted with Roberts concurred with everything he wrote. The Constitution might mean something to “this Court,” but what does it mean? If “this Court” can make the Constitution mean whatever it wants, what might subsequent Courts with a different composition do? Imagine a SC with Laurence Tribe and Erwin Chemerinsky in place of Thomas and Alito. Do you really think the Sebelius ruling is going to constrain their prog impulses? If so, then not only do I disagree with you, but I actually pity you.

Do you find the majority opinion more compelling than the dissenting one? (It is an interesting tidbit that they may have been authored by the same person, at least for the most part) I do not. Statism advanced and liberty receded. It may have happened constitutionally, but it happened.

BTW, the ACA tax is not applied to income, it is applied to inactivity. Do not claim it is equivalent to the mortgage deduction or something similar. It is not. As the WSJ noted:

the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don’t borrow to buy a home, you don’t get a mortgage interest deduction.

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty.

This really will be my last post since the real world interferes for me as well. I suspect that we share to a great extent a similar normative political philosophy. I truly think you are engaged in wishful thinking, however, if you believe freedom didn’t take a punch to the gut with this ruling.

It would be subject to the limitations placed on direct taxes if it was defined in Art I. But clearly with the 16th Amendment, a new taxing power was created that was additional to, not derivative from the Art I taxing power. When the Progressives created this new taxing power they did not place any restrictions on it except that it was placed on “income”. There are no Art I restrictions on the taxing power of the 16th Amendment. Sad but true. Because of this distinction between Art I taxes and 16th Amendment taxes, the SCOTUS has apparently chosen as a convenience the nomenclature of not labeling it a direct tax as that would thoroughly confound stare decisis. I’m not quite sure if I agree with that choice but it seems a reasonable workaround to the problems introduced by having two differing sets of restrictions on other wise similar taxes.

Assess a tax on everyone.

Then create series of exemptions for various conditions plus “credits” for “balancing” unwanted impacts.

That may be how it was sold, but as these things go, they wrote it to do just a little bit more than it said in the sales brochure. The income tax levying power does not come under Art I restrictions as written. Since the legality of the tax is a rather hot topic, I am working on another article discussing the taxing structure as specified in the Constitution. Whether and when I will publish it, I am not certain. The real world interferes.

BTW, Glenshaw defines taxable income as “instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” The ACA tax clearly is applied only to income falling within the Glenshaw definition.