For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power? I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that "declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper." 1 Annals of Congress 759–60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.
Wednesday, March 24, 2010
Is the Tax Power Infinite?
Dave Kopel (at Volokh Conspiracy ) says no.