Jacob Sullum

Judge Brett Kavanaugh, who dissented from a decision by the U.S. Court of Appeals for the D.C. Circuit that upheld the mandate on Commerce Clause grounds, argued that "just a minor tweak to the current statutory language would definitively establish the law's constitutionality under the Taxing Power." All it would take, Kavanaugh said, is a clarification that Congress is merely using the tax code to "incentivize certain kinds of lawful behavior," as it routinely does, rather than imposing an outright requirement.

In other words, Congress could accomplish exactly the same thing by wording it a little bit differently. The response to that possibility from the states challenging the insurance mandate -- that making income tax liability hinge on the purchase of health insurance amounts to "an unconstitutional direct tax" -- seems pretty weak, given the myriad ways in which the tax code is used to encourage politically preferred actions, such as adopting children, going to college, buying a house, giving to charity, driving an electric car and even obtaining health insurance (through one's employer).

We might wish taxes were used simply to pay for the government's legitimate functions, but that is not how things are. In 1819, Chief Justice John Marshall observed that "the power to tax involves the power to destroy." As currently interpreted, it also involves the power to manipulate us into submission.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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