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The Massive Tax Code Beast

The opinions expressed by columnists are their own and do not necessarily represent the views of

In the days since the Supreme Court ruled that ObamaCare was constitutional because the mandate was actually a tax, a lot of commentary has been written. Some of this commentary has tried to put a positive spin on the ruling.

Some have said that this might have been a strategic move by Roberts to prevent the court from being seen as partisan. Others have argued that Roberts' decision was a political move four months before the election, and Obama will pay in November. Yet others have said that this decision actually helps the conservative cause by establishing a limit to the catch-all commerce clause.

While I acknowledge all of these things, I do not agree that the ObamaCare ruling was a "win" for conservatives. While conservatives may be able to make some lemonade from the lemons of the Supreme Court ruling, we shouldn't deceive ourselves. This was a loss. We don't win by losing.

Though apparently this ruling puts some limits on the commerce clause, the limit is so far in left field as to be useless in a practical sense. After all, the limit is basically, "You can't force economic activity under the commerce clause." I'd hope not!

Unfortunately, the court said that the federal government can force activity as a matter of taxation. Which is presumably even worse since an activity (or inactivity) doesn't have to pretend to cross state borders to be compelled by federal taxation.

Other than the court's surprising decision to interpret ObamaCare as a tax despite the language of the statute, this finding probably shouldn't be surprising. The tax system already includes mandates, effectively, with tax deductions and exemptions.

When we get a deduction on mortgage interest, we're basically requiring everyone to have a mortgage and penalizing those that don't with higher taxes. We reduce taxes for capital losses which means we tax people for not losing money (though we tax them even more for making money). The government provides a tax credit for those that buy certain "green" cars which means those that don't buy that car are penalized with higher taxes.

The government has been engaging in "mandates" through tax incentives for decades. We just haven't been looking at them as mandates. But the truth is that every tax deduction, credit, or exemption is a mandate for that behavior where those that refuse to engage in the compelled behavior are charged a higher tax. Just like ObamaCare.

Long gone are the days that federal taxes were about raising money to fund the legitimate functions of government. That's still an aspect of it, of course, but the tax code has evolved into a massive beast that influences and controls our behavior.

Given that our tax code is being (and has been) used to control the behavior of the citizens rather than just raise money, it's clear that the federal government has been entrusted with far too much authority and must be reigned in.

There should be a constitutional amendment that explicitly prohibits the federal government from extending tax credits, deductions, exemptions, or other benefits--other than, possibly, for dependents and a personal deduction (since the taxpayer is effectively paying taxes for his or her dependents).

Even when deductions happen to incentivize behavior that might be beneficial, the reality is that they simultaneously attempt to compel behavior and punish those that don't engage in it.

Tax deductions are based on the premise that that the federal government knows best. Do we really believe that? Even the home mortgage interest deduction should raise eyebrows since it made buying a home artificially more "affordable" which put more houses into the reach of those who couldn't afford it. Thus the mortgage interest deduction was complicit in the housing bubble and the subsequent financial crisis. And, too often, we find ourselves making financial, saving, hiring, and firing decisions based not on what would normally make the most sense, but based on tax implications.

The ObamaCare ruling serves to remind us just how far we've let things go and highlights just how many things the government is doing that should be considered unconstitutional. While ObamaCare certainly must be repealed, we'd be remiss if we stop there. We must revisit the tax code and the 16th amendment that have authorized the government to compel action unrelated to the payment of taxes.

ObamaCare is just the most recent, largest, and most intrusive example.

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